Asarco, Inc.

National Labor Relations Board - Board Decisions

Mar 8, 1995

316 N.L.R.B. 636 (N.L.R.B. 1995)

636
316 NLRB No. 111
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On June 24, 1994, Administrative Law Judge Frederick C.
Herzog issued the attached decision. The Respondent filed excep-
tions and a supporting brief. The National Labor Relations Board has
delegated its authority in this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 363 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 Unless otherwise noted, all dates herein shall refer to the cal-
endar year 1993.
2 Sec. 8(a)(1) of the Act provides that,
It shall be an unfair labor practice for an employer—(1) to inter-
fere with, restrain, or coerce employees in the exercise of the
rights guaranteed in section 7.
Sec. 7 of the Act provides that,
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have the right to
refrain from any or all such activities except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as au-
thorized in section 8(a)(3).
3 Sec. 8(a)(3) of the Act provides that,
It shall be an unfair labor practice for an employer—
(3) by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encourage or
discourage membership in any labor organization:. . . .
4 Sec. 8(a)(4) of the Act provides that, It shall be an unfair labor
practice for an employer—
(4) to discharge or otherwise discriminate against an employee
because he has filed charges or given testimony under this Act;
5 Sec. 8(a)(5) of the Act provides that,
It shall be an unfair labor practice for an employer—
(5) to refuse to bargain collectively with the representatives of
his employees, subject to the provisions of section 9(a).
Asarco Inc. and United Steelworkers of America,
Local 5613, AFL–CIO. Case 16–CA–16127
March 8, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
The questions presented here are whether the judge
correctly found that the Respondent violated Section
8(a)(3) and (1) of the Act by discharging Jerry
Halford; and violated Section 8(a)(5) and (1) by refus-
ing to deal with Halford as the Union’s representative
after his discharge and by refusing to provide informa-
tion requested by the Union in connection with proc-
essing a grievance against Halford’s discharge.1 The
Board has considered the decision and record in light
of the exceptions and brief and has decided to affirm
the judge’s rulings, findings,2 and conclusions and to
adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended order of the administrative law judge and
orders that the Respondent, Asarco, Incorporated,
Amarillo, Texas, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
MEMBER STEPHENS, dissenting.
I would find that the General Counsel did not estab-
lish by a preponderance of the evidence that employee
Jerry Halford was discharged for unlawful reasons and
therefore would dismiss the complaint allegation that
his discharge violated Section 8(a)(3) and (1). I join
my colleagues in adopting the administrative law
judge’s findings with regard to the other complaint al-
legations.
J. O. Dodson, Esq., for the General Counsel.
Robert L. Thompson, Esq. (Elarbee, Thompson & Trapnell),
of Atlanta, Georgia, and Brian P. Boylan, Esq., of New
York, New York, for the Respondent.
Jerry Halford, of Amarillo, Texas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge. This
case was heard by me in Amarillo, Texas, on October 26,
27, and 28, 1993. It is based on a charge filed on June 2,
1993,1 by United Steelworkers of America, Local 5613,
AFL–CIO (the Union), alleging generally that Asarco, Incor-
porated (Respondent), committed certain violations of Sec-
tion 8(a)(1),2 (3),3 and (4)4 of the National Labor Relations
Act (the Act). The charge was later amended to allege viola-
tions of Section 8(a)(5)5 of the Act, as well. On July 9, the
Regional Director for Region 16 of the National Relations
Board (the Board) issued a complaint and notice of hearing
alleging violations of Section 8(a)(1), (3), (4), and (5) of the
Act. Respondent thereafter filled a timely answer to the alle-
gations contained within the complaint, denying all wrong-
doing.
All parties appeared at the hearing and were given full op-
portunity to participate, to introduce relevant evidence, to ex-
amine and cross-examine witnesses, to argue orally, and to
file briefs. Based on the record, my consideration of the
briefs filed by counsel for the General Counsel and counsel
for Respondent, and my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that,
at all times material, Respondent is now, and has been, a
New Jersey corporation, with an office and principal place
of business in Amarillo, Texas, where it is engaged in oper-
ating a facility at which it refines nonferrous metals; during
the 12 months preceding the issuance of the complaint here-
637ASARCO, INC.
in, Respondent, in conducting its business at the facility pur-
chased and received at its Amarillo, Texas facility, goods,
products, and materials valued in excess of $50,000 directly
from points located outside the State of Texas.
Accordingly, I find and conclude that, at all times mate-
rial, Respondent is, and has been, an employer engaged in
commerce and in a business affecting commerce within the
meaning of Section (2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that,
at all times material, the Union is, and has been, a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Labor Relations History
In Respondent’s business of refining nonferrous metals,
Respondent’s plant in Amarillo, Texas, employs about 590
workers, of whom about 460 are in the unit. The process in-
volves bringing unrefined copper, primarily from smelters
operated by Respondent at other locations into the plant for
refining, to rid the ‘‘anodes’’ of impurities and bring the
product up to an average of 99.9-percent copper. Following
its refinement, the product is shipped in the form of cath-
odes, wire bars, cake, billets, and continuous cast rods.
Since May 5, 1976, when the Union was certified and rec-
ognized as the exclusive collective-bargaining representative
of the unit, the following employees of Respondent at the
Amarillo, Texas facility mentioned above have constituted,
and now constitute, a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act:
Included:
All production and maintenance employees employed
by the Employer.
Excluded:
Office, clerical employees, clerk weighers, counter
clerks, shipping and receiving clerk, technical, and lab-
oratory employees, instrument technicians, fire equip-
ment inspectors, professional employees, skilled and ap-
prentice electricians, guards and supervisors as defined
in the Act.
Such recognition has been embodied in successive collective
agreements, the most recent of which has a term of July 1,
1992, to June 30, 1995. It is admitted, and I find, that at all
times material, the Union has been the exclusive collective-
bargaining representative of the employees in the above de-
scribed unit.
In fact, besides its Amarillo facility, Respondent has col-
lective-bargaining relationships with the Union at facilities it
owns in El Paso, Texas; Hayden, Ray, and Tucson, Arizona;
East Helena, Montana; Omaha, Nebraska; and Denver, Colo-
rado. Respondent also has a collective-bargaining relationship
with the International Chemical Workers Union in Mascot,
Tennessee. Counsel for the General Counsel conceded that
Respondent has no history of having violated the Act.
B. The Issues
The primary issues in this case are:
(1) Whether or not, when Respondent discharged its em-
ployee, Jerry Halford, the Union’s long-time president, it dis-
criminated against him because of his union activities within
the meaning of Section 8(a)(3) and (1) of the Act.
(2) Whether or not, when Respondent discharged its em-
ployee, Jerry Halford, it discriminated against him because
he’d given testimony in a previous Board proceeding, within
the meaning of Section 8(a)(4) and (1) of the Act.
(3) Whether Respondent violated Section 8(a)(5) of the
Act by:
(a) Failing and refusing to provide the Union with certain
information requested by the Union and which was necessary
to enable it to process a pending grievance.
(b) Failing and refusing to deal with Halford in matters of
collective bargaining, even though Halford remained the
Union’s president following his discharge.
Respondent admitted at trial that W. T. J. McLean, Curtis
Bates, Dave Woodbury, Larry Johnson, Stu Bryant, M. D.
Owsley, M. G. DeBord, and Gene Thompson are, and at all
times material have been, agents and supervisors of Respond-
ent within the meaning of the Act. Respondent continues to
deny, however, that Bruce Powell and Rylan Phelps are ei-
ther supervisors or agents within the meaning of the Act.
C. Contentions of the Parties
Counsel for the General Counsel contends that Halford, an
employee since April 1977, and a long-time and quite active
president of the Union, came to be viewed as a thorn in the
side of Respondent, was discharged because of his union ac-
tivities and/or because he gave testimony under the Act.
While counsel for the General Counsel concedes much of the
factual claims made by Respondent regarding alleged mis-
conduct by Halford, especially as they surround the incident
of May 12 involving a ‘‘baggie’’ with some water in it,
counsel for the General Counsel urges me to find that
Halford has been the victim of disparate treatment by Re-
spondent. Counsel for the General Counsel goes on to argue
that Respondent’s temporary failure to deal with Halford, to
provide the Union with certain information requested by the
Union, or to afford Halford access to the facility, constitutes
a refusal to bargain within the meaning of Section 8(a)(5) of
the Act.
Counsel for Respondent, on the other hand, scoffs and
claims that Halford was discharged for no such reason. In-
deed, Respondent asserts that Halford’s position with the
Union was considered as a mitigating factor when a decision
was being reached as to what discipline should properly be
given Halford for engaging in dangerous conduct, resulting
in injury to another employee, and, in being untruthful when
asked about the matter. Respondent claims that the General
Counsel has failed to prove that Respondent’s official who
decided upon the discipline to be administered to Halford
had any knowledge of the sort of conduct claimed by the
General Counsel to demonstrate disparate treatment. Re-
spondent contends that the alleged refusal to deal with
Halford or afford him access either did not happen or was
de minimis, and that all information necessary to the Union’s
performance of its duties, or which was not equally available
to it, was provided to the Union in a timely fashion.
638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Sanchez’ own version of these events is reported below.
7 Sanchez’ version of the incident is that he was waiting to startup,
facing the holding furnace, when he was hit. He claimed that the
force of the impact was enough to hurt, and that it knocked him to
his knees, ‘‘almost’’ to the floor, and knocked off his hat and shield.
After that, he laid down, ‘‘partly exaggerating.’’ A couple of min-
utes later Halford came up to him and asked if he was OK, and told
him to say how many fingers Halford was holding up. Sanchez, a
credible witness, recalls that he told Halford that he was OK and
asked, ‘‘What happened? Did Waylon hit me?’’ He recited that
Halford responded that it was he, Halford, who had hit him, and that
he was sorry. Sanchez told Halford that Thompson was watching,
and that he’d better get back to work. Halford left.
According to Sanchez, he felt like he’d been ‘‘slugged,’’ so he
went to the nurse’s office for treatment. He reported that he was
given no medicine other than an aspirin, and that he had temporary
pain to his neck and head.
Sanchez claimed that he had seen lots of horseplay in the past,
though not of the type claimed by counsel for the General Counsel,
i.e., reported to management.
Sanchez also claimed that, later in the week, he told Owsley that
McLean was making too much of the incident.
D. The Facts
All parties agree that Halford threw a baggie with some
water in it over the charge floor’s railing on August 12.
Their versions of the incident follow.
1. Respondent’s version of the baggie incident
The area of Respondent’s plant where it melts down the
unrefined product for production of cast rods is known as the
‘‘casting area.’’ About 33 feet above the casting area is an-
other area, configured as a sort of gigantic loft overhanging
the casting area, known as the ‘‘charge floor.’’ That is where
Halford did his work, as a ‘‘chargeman,’’ responsible for
making sure that the furnace which melted the product was
properly fueled, or charged, at all times.
That is where Halford was located on the morning of Au-
gust 12, as casting began, and as it continued until the caster
‘‘went down’’ about 10:50 a.m. Respondent responded to the
situation by deciding to keep the furnace running on low, in
order to allow a quick restart. This decision meant that there
was extremely hot metal remaining in the dump pot. Metal
so hot will vaporize and ‘‘explode’’ if water is thrown upon
it. Such hot metal, when thrown about by the sudden vapor-
ization, or ‘‘explosion,’’ is dangerous to anyone within range
of being struck by it.
As the process was being restarted, and while Supervisor
Thompson was at the casting booth to watch the startup,
Thompson noticed an employee named Mike Sanchez walk
in front of the casting booth’s window. He further noted that
Sanchez did not have his hardhat or his face shield on.
Thompson stated that Sanchez appeared dazed.
Thompson’s recital continued, and he said that he noticed
Halford suddenly appear and put his arm around Sanchez.
Thompson found this unusual, since Halford’s post was on
the charge floor, high above. According to Thompson, he
asked what had happened to the casting operator, Leal. Leal
responded, ‘‘That son of a bitch threw a water balloon from
the charge floor and hit Mike.’’ Halford, seeing Thompson,
then returned to the charge floor.
Thompson caught up to Sanchez as Sanchez, instead of re-
turning to his post, was leaving the building. Thompson
asked if he was OK Sanchez replied that he had some pain
in his neck. Thompson sent Sanchez to the nurse’s office,
where he was treated for temporary pain in his head and
neck.
According to Respondent,6 in reporting on the incident
later, Sanchez claimed to have been at his post, awaiting the
startup, when he was hit on the top of his hardhat with a
sandwich bag at least partially filled with water. Sanchez
stated that it came from the charge floor, knocking him
down, knocking his hardhat and face mask off. Sanchez
claimed that he was dazed for a couple of minutes, and next
noted that he was being helped up by Halford.
Thompson, meanwhile, talked to those nearby about what
had happened. Leal and employee Wayland Huddleston told
him that Halford had thrown things from the charge floor in
the past, striking them. Crane operator Don Warren said he’d
seen Halford throw things from the charge floor and hit em-
ployees below. Thompson reported all this to his superior,
Stu Bryant.
2. Halford’s version of the baggie incident
Halford was at work that morning, participating in the
casting. That day, as was usual for him, he ate his lunch ‘‘on
the fly,’’ since he couldn’t leave his post due to the casting
in process.
In this particular lunch, Halford had a plastic sandwich
‘‘baggie’’ containing grapes, which he ate with his lunch.
When finished, he walked to a nearby water cooler. He went
there to wash out his baggie. He habitually did so, reusing
them for such things as pickles or onions.
However, on this occasion, he noted that the baggie was
leaking. Having no use for a leaking baggie, he proceeded
to toss it underhanded toward a dumpster located near the
charge floor’s railing overlooking the casting floor. Though
Halford intended that the baggie go into the dumpster, it did
not. Instead, missing the dumpster, the baggie, with an esti-
mated 4–5 ounces of water still in it, sailed over the rail to-
ward the casting floor below. When he tossed the baggie to-
ward the dumpster he was about 15 feet from the dumpster,
which he estimated to be about 3 feet by 3 feet by 4 feet
high.
Halford, thinking nothing of it, went on with work.
Halford claimed that it did not occur to him that the baggie
had hit anyone, or that, had it done so, it would have in-
flicted injury.
However, Halford continued, on looking down again, he
noted Sanchez sitting down, with a puddle of water by his
feet. So, Halford left the charge floor and proceeded down
to the casting floor to Sanchez. He asked Sanchez what had
happened and was told that something ‘‘hit me [Sanchez].’’7
Halford returned to work then.
Halford acknowledged that an hour or so later, having
seen the baggie being retrieved from the trash, he went to
McLean and confessed that he’d thrown the baggie. McLean
responded that was really dumb. Halford was then questioned
about the incident by McLean and Bryant, during which he
denied that he’d done anything like that before. Further talk
about securing a union safety representative, or a grievance
representative led to Bryant telling Halford that he was sus-
pended pending further investigation of suspected horseplay
and a safety violation. McLean escorted Halford out of the
building.
639ASARCO, INC.
8 A statement which I find incredible, in view of the fact that all
were agreed that the line was just about to startup again.
9 He admitted to knowing, however, that Respondent’s safety rules
specifically mentioned that if water came into contact with hot or
molten copper it could result in an explosion.
10 Huddleston apparently told differing versions about this and
other incidents. For example, while it is not clear that Huddleston
shared the version of the incident which he testified to with McLean
and/or Bryant, Huddleston testified that he thought that Sanchez was
not hurt, that Sanchez ‘‘staged’’ the appearance of being hurt, and
that the entire matter was funny. Huddleston claimed that Sanchez
took a full 10–15 seconds from the time he was hit in his hardhat,
knocking his face shield off, to fall, or ‘‘flop’’ on the floor. He
couldn’t say whether Sanchez was dazed, but claimed that Sanchez
appeared to have full control of his faculties.
Huddleston, a 17-year employee, admitted that he’d seen others
throw things off the charge floor in the past, and, indeed, that he’d
been hit with a snowball from above. Huddleston denied that he’d
ever seen Halford throw anything off the charge floor, though he
readily acknowledged that horseplay was commonplace, and that
he’d participated in it himself, dumping a watercooler of ice on a
supervisor from a catwalk. He stated that Leal has participated in
such incidents as those he described, i.e., putting water into contact
with hot copper (which he claimed posed no danger), banging a
sledgehammer behind someone to startle them, water or ice fights,
or putting ‘‘dummy bars’’ through the process too fast.
According to Huddleston, supervisory and/or management officials
have witnessed such incidents routinely, without any discipline fol-
lowing. He did admit, however, that no one was ever hurt before,
aside from skinned knees being caused by people being startled by
the sound of a sledgehammer being struck behind them.
11 While Halford categorically denied this incident, I found San
Miguel to be an extraordinarily convincing witness, easily superior
in her demeanor to Halford. Accordingly, I do not credit Halford’s
denial.
12 McLean testified without contradiction that Respondent has pro-
mulgated plant rules pursuant to the provisions of the collective-bar-
gaining agreement, and that such rules were republicized on Feb-
ruary 11, 1993. He also affirmed that the rules are prominently post-
ed through the facility, and that new employees are educated about
the rules.
13 There are an abundance of ‘‘rules’’ in evidence. Some are in
an ‘‘Employee Handbook,’’ for which Halford signed a receipt for
in 1982. Some are in a ‘‘General Plant Work and Safety Rules’’
booklet, for which Halford signed a receipt in 1985. Some are enu-
merated in a sheet posted in the facility in February 1993, entitled
‘‘General Company Rules.’’
Halford claimed, contrary to Respondent, that there was no
hot, or molten, copper when he tossed the baggie.8 He also
claimed that, in any event, it wouldn’t have hurt anybody.9
He acknowledged at trial that he, like others, had from time-
to- time in the past thrown baggies on the molten or hot cop-
per ‘‘just to see what would happen.’’ He also admitted that
he’d thrown other objects over the railing in the past. Both
such admissions are contrary to the information he provided
Respondent immediately following the incident.
3. Halford is discharged as a result of the
baggie incident
Bryant and McLean proceeded to conduct an investigation
of the incident. Employees Leal and Huddleston10 reported
that objects had been previously thrown from the charge
floor. Employee Warren, a crane operator, stated that he’d
seen Halford drop the bag from the charge floor which hit
Sanchez, and, further, had also seen Halford hit Leal with a
waterbag about a month before. Employee Rachel San
Miguel stated that Halford had hit her with a 1-inch stone,
with sufficient force to cause a mark on her neck and shoul-
der.11
Bryant and McLean’s investigative results were reported to
Unit Manager Mike Owsley.
As shown above, Halford was suspended shortly after the
incident. Halford filed a grievance over his suspension. A
grievance meeting was held, at which time Halford asked
that Owsley, new to the facility, personally investigate the
incident.
Owsley did so on May 18, and generally received evi-
dence from employees, and from his own observation of the
site of the incident, which led him to believe that Halford
had lied about the incident, and had purposely tossed the
baggie down from the railing of the charge floor on Sanchez.
Owsley decided to discharge Halford, and directed McLean
to draft a letter so informing Halford.
On May 19, Owsley and various officials of Respondent
met with Halford and the Union’s vice president, Muehling,
in the presence of the Board’s Regional Director for Region
16, at the Board’s offices in Fort Worth. They met for the
purposes of attempting to settle another matter. Owsley states
that he had already decided to discharge Halford, but was
persuaded by another official of Respondent to meet with
Halford again, so that he could be told Halford’s story di-
rectly by Halford. Owsley agreed to do so the next morning,
back in Amarillo. While counsel for the General Counsel ar-
gues that this meeting resulted in a heated discussion be-
tween Halford and Owsley, my own sense of the matter is
that it was no different than any such meeting, where dis-
agreements are vigorously argued. In fact, Owsley made a
concession in Halford’s favor, by agreeing to meet with him
personally the following morning.
Halford and Owsley, each with a companion, met the fol-
lowing morning. Halford essentially recited the incident as he
saw it, and Halford denied that he’d done anything similar
in the past. Owsley responded that he had knowledge that
Halford’s statement was not true. Oswley claimed that he
heard nothing on which to base any change in his decision
of May 18 to discharge Halford.
Accordingly, on May 20 Respondent sent Halford a letter,
signed by Owsley, stating:
This is to advise you that upon completion of our in-
vestigation of your conduct on May 13, [sic] 1993, the
decision has been made to terminate your employment,
effective that date. The bases for your termination in-
clude violation of both the Plant Safety Rules and Gen-
eral Rules of Conduct related to unsafe acts, dishonesty
and unsatisfactory work performance.12 Each of these
offenses is a separate and distinct basis for your termi-
nation.13
The grievance mentioned above is pending arbitration.
4. The request for information and the response
On May 25, for the stated reason of allowing it to prepare
for the hearing of the grievance relative to Halford’s dis-
charge, the Union sent Owsley a letter requesting, the follow-
ing information:
640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Counsel for the General Counsel placed another request for in-
formation into evidence, but, counsel for the General Counsel dis-
avowed any intent to utilize it as a separate basis for a finding of
a violation of Sec. 8(a)(5), since it was never discovered by counsel
for the General Counsel until after the trial began, and had not been
disclosed to Respondent. However, I consider such evidence, as I an-
nounced at trial, for a full consideration of the issues raised by the
request of May 25.
15 An adverse inference is warranted from the failure of a party
to elicit testimony about a matter concerning which its witness
would normally testify. Advanced Installations, 257 NLRB 845
(1981). As it is from the failure of a party to question its own wit-
ness about matters which would normally be thought reasonable.
Colorflo Decorator Products, 228 NLRB 408, 410 (1977).
1. Specification of charges.
a. Time, Date and brief description of each charge
(3 are listed).
b. Complete statement of events leading to dis-
cipline including a factual narrative of all related in-
formation.
2. Names and telephone numbers of all witnesses.
3. Any and all factual statements made during inves-
tigation (written, electronically recorded, transcribed by
computer, or otherwise reproduced in any form, written
or otherwise).
4. Map, pictures and print or diagram of the area in-
volved.
5. The RCCD log book entries for the entire day of
5/12/93.
6. Jerry Halford’s disciplinary records, including
copies of general disciplinary notices.
On June 7, Respondent replied by letter, enclosing a copy
of Halford’s disciplinary record, as requested. Respondent
denied the request for the remaining documents on grounds
that the information requested either did not presently exist,
is unavailable, is attorney-client privileged, or is otherwise
not discoverable in arbitration.
At trial, Owsley elaborated upon these reasons, saying that
the logbook was not relevant to the discharge decision or any
facts relating to it, and that the remaining information was
equally accessible to the Union.14
The complaint’s allegations in paragraphs 13 and 15 are
limited to the failure and refusal to furnish the information
requested in paragraph 2 of the letter of May 25, i.e., names
and telephone numbers of all witnesses.
5. The refusal to deal with Halford
On May 24, Owsley wrote to Raymond D. Meuhling, the
vice president of Local 5613, United Steelworkers of Amer-
ica. His letter begins by referring to the fact that he is re-
sponding to a previous letter from Jerry Halford. It then went
on to discuss a business matter between the Union and the
Respondent.
On May 26, McLean called the union hall, and asked for
Muehling after Halford answered the phone. Muehling was
called to the phone.
Later that day McLean called again, and again Halford an-
swered. McLean asked for Muehling, and Muehling was
again called to the phone. According to Muehling, McLean
told him that Halford was no longer an employee and would
not be allowed on the premises to attend the meeting, not-
withstanding the fact that he’d been previously approved for
attendance by Respondent, along with a number of other
nominees of the Union.
Still later that day, Owsley called, saying he wanted to
speak to Muehling. Halford, having answered the phone, stat-
ed that he was aware of what had happened and could handle
the matter. He went on to say that Muehling had been told
that Halford would not be allowed onto the facility on the
following day, to meet with one Frank McAlister, the vice
president in charge of the Amarillo plant, who was to be
present then. According to Halford he was repeatedly told by
Owsley that he couldn’t come on the premises since he
wasn’t an employee, and would only be allowed on the
premises in order to discuss grievances.
The meeting with McAlister had been previously arranged,
at the request of the Union, for the purpose of meeting
McAlister, who was new to the facility, and to discuss prob-
lems that the Union was having at the plant, how to correct
those problems, and what kind of support the Union would
receive from upper management in resolving those problems.
In fact, Halford was not allowed to participate in the meet-
ing of May 27.
On June 14, McLean called the hall and told Muehling
that OSHA was at the plant, and asked if he wanted to come
out to meet with them. Muehling, in turn, conveyed this in-
formation to Halford. Halford telephoned McLean and pro-
tested that he was still president of the Union, and should
be involved in any meeting with OSHA. McLean responded,
according to Halford, that he wasn’t allowed on the prem-
ises, and he would only give Halford the motel name and
phone number of the OSHA representative. Halford also tes-
tified that the past practice had been for him to accompany
the OSHA representative around the plant.
Halford was not allowed to come to the plant to accom-
pany the OSHA representative, and he had to designate
someone else to do it.
McLean was not asked about, and did not deny the testi-
mony of Muehling or Halford regarding the events of May
24, 26, or 27. Nor was he asked about, and did not deny,
the matters set forth above concerning the failure to permit
Halford to participate in the customary activity with the
OSHA official. I am convinced that these failures to deny,
or to elicit evidence from McLean about these matters, was
not unintentional.
Owsley very generally denied that the Respondent has re-
fused to recognize Halford as the Union’s legal representa-
tive since his termination, or that he has issued instructions
to ‘‘cut Halford out of the loop.’’ The failure of Owsley to
deny any of the specifics of Halford’s testimony concerning
the events of May 24, 26, or 27 was quite striking, however.
I am convinced that such failure was not mere accident or
omission.
Accordingly, I draw negative inferences from the failures
to deny, or to elicit evidence, set forth in the two preceding
paragraphs.15
E. Discussion and Conclusions
1. Halford engaged in misconduct
As established earlier, it cannot be denied that Halford did
toss or throw a baggie containing some 4–5 ounces of water
641ASARCO, INC.
from the charge floor down to the casting area during the
morning of May 12. Counsel for the General Counsel would
have it that Halford’s act was merely accidental, and was the
result of inaccuracy while Halford was attempting to hit the
dumpster from a distance of about 15 feet.
I don’t believe that to have been the case, however. In-
stead, I find and conclude that Halford’s action was not
merely accidental, but instead that he deliberately threw the
baggie down from the charge floor, quite likely succeeding
in his intent to strike Sanchez. Thus, I agree with the conclu-
sions of Owsley and McLean about this incident.
While I make no claims of expertise in the field of phys-
ics, beyond dim and distant memories of high school and
college courses in the subject, I cannot view the diagram and
pictures of the charge floor and the casting area without
forming a firm conclusion that it is impossible for the inci-
dent to have taken place as described by Halford.
If, as claimed, Halford had been 10–15 feet away from the
dumpster and the railing, when he tossed it, there is simply
no way that the baggie could have struck Sanchez without
defying the laws of physics, i.e., by doing a 90-degree turn
straight down in midflight. For, at that place where the
charge floor’s railing was cleared by the baggie, in order to
clear the railing, yet still strike Sanchez as he stood facing
the holding furnace, the baggie would have had to fall
straight down after clearing the railing. But that wouldn’t
have been possible if, as claimed by Halford, the baggie had
first been flying through a trajectory starting 10–15 feet back
from the railing. The baggie could not have fallen so straight
down or close to the railing unless it has been thrown in a
very high arc. But, that too is simply impossible, given the
fact that the ceiling is not high enough to accommodate such
an arc. Since I find that what Halford testified to is impos-
sible, I discredit his testimony about this incident. I think it
most likely that Halford fabricated the story about the inci-
dent being accidental, in an effort to avoid punishment for
it. I believe that, instead of ‘‘an errant toss,’’ the baggie’s
flight was deliberately caused by a hard throw directly down
by Halford as he stood adjacent to the railing.
This conclusion is reinforced in my mind by the fact that
it seems the only thing consistent with the force of the
baggie’s impact upon Sanchez. At trial I formed the conclu-
sion that both Sanchez and Respondent were exaggerating
the force of the blow struck upon Sanchez. I still believe that
to be the case. Sanchez because he’d gone along with
Halford’s horseplay, and feigned injury in apparent ‘‘reverse
horseplay,’’ and has since felt compelled to speak consist-
ently. Respondent because it is consistent with the defense
of this case. I believe that Sanchez, who I found to be a gen-
erally credible witness, essentially admitted as much, when
he admitted that he partially feigned his reaction to being
struck.
Indeed, I could find no reasonable explanation for the ob-
vious force of the impact when first presented with this evi-
dence. I inquired as to the possibility that something else,
something additional, something of more weight or substance
than a flimsy, half-filled baggie containing only 4–5 ounces
of water, might have also been thrown or tossed. That possi-
bility was never shown to be anything more than a possibil-
ity however. I am left to conclude that nothing other than the
baggie struck Sanchez.
Given the various accounts of the effect that the impact of
the baggie had upon Sanchez, I conclude that the baggie
must have been traveling at a substantially greater speed
when it struck Sanchez than would have been possible had
it simply been tossed, and left to the forces of gravity. In-
stead, I find that I must conclude that the force with which
Sanchez was struck could have been generated only if the
baggie was thrown, and thrown quite hard, directly down
from the railing above. That is precisely what I find and be-
lieve that Halford did in this instance.
In fact, I believe that this account is consistent with the
reactions of several of the witnesses to the incident, includ-
ing Sanchez. Why, if he didn’t believe that someone had
thrown the baggie on purpose, did Sanchez first ask Halford
if ‘‘Wayland’’ did it? Why would Sanchez pretend anything
if he did not initially believe that the act had been inten-
tional, as horseplay? Why would Sanchez have warned
Halford about the fact that he was being watched by Thomp-
son had Sanchez not been of the initial impression that
Halford, or Wayland Huddleston, had thrown the baggie?
Why would Halford have been impelled to rush down a long
flight of stairs if the entire incident been so accidental as he
sought to portray?
Thus, I have concluded that Halford’s act which resulted
in Sanchez being slightly injured was horseplay.
As a consequence, it is clear that Halford engaged in un-
safe conduct, that he lied about what he did, as well as about
the fact of whether or not he’d done the same sort of thing
in the past, and that, perforce, he wasn’t doing his job if he
was engaging in horseplay when he should have been doing
his work.
Thus, Halford furnished the Respondent with a perfect ex-
cuse for discipline, up to and including discharge. This is so
because each of these sorts of misconduct is included at
some point in the litany of written rules published by Re-
spondent at the facility. Falsification of information, horse-
play, dereliction of duty, unauthorized absence from duty
area, disobeying safety regulations, or creating or contribut-
ing to any unsafe condition are all among the list of reasons
stated in the rules as warranting discharge.
2. Credibility assessments of witnesses
Of course, in arriving at these conclusions I have taken
into account the relative testimonial demeanor for credibility,
or lack thereof, exhibited by Halford, and others such as
Huddleston and Muehling.
Halford routinely equivocated, fenced, hedged, prevari-
cated, and dissembled when testifying about the baggie inci-
dent, and his reports thereof to management. Concerning
these matters, I find myself believing nothing he testified to
except that which was corroborated or is not in dispute. Yet,
when testifying about the refusal to supply information, or
the refusal to deal with him, Halford seemed credible
enough.
Huddleston and Muehling both seemed to be generally
honest men, trying to speak truthfully. However, I tend to
downgrade each man’s credibility somewhat because of the
perception I gained from each that his testimony might have
been somewhat affected by partisanship and bias in favor of
Halford.
642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Thompson, while certainly less than perfect in his de-
meanor, was superior to any of the trio of Halford, Huddle-
ston, and Muehling.
McLean, though clearly an extremely self-righteous man,
given to seeing the world in simple black and white terms,
appeared to be absolutely truthful. Yet, because of his clear
inability to see things except in one dimension, I tend to give
more credit to his testimony concerning simple factual mat-
ters than I do when he testified about matters calling for
judgment and opinion.
Finally, Owsley made a relatively good, if not perfect, im-
pression for veracity and credibility.
However, it should be borne in mind that neither Owsley
nor McLean can be credited with denying that which they so
obviously did not deny, as previously shown by the testi-
mony of Halford and Muehling. Nor can the testimony of
McLean in any way detract from that of employee Lowell
Farmer, a witness whose testimony had the very ring of truth
to it.
In arriving at my credibility determinations, I am not un-
mindful that rarely do witnesses perceive or hear the same
events in the same fashion. Also, that testimony purported to
be truthful and accurate is often influenced by the interest the
witness has in the outcome of the proceeding in which the
testimony is given.
Bearing this in mind, and having closely observed the de-
meanor of all of the witnesses while testifying, I find the ac-
curate and truthful account of what occurred regarding the
baggie incident, or the alleged failures and refusals to deal
with Halford, does not completely conform with the versions
given by the witnesses for either side. Rather, I find the truth
lies somewhere in between. Thus, while I find portions of the
testimony given here to be reliable and trustworthy, I find
other portions of the testimony of the same witnesses to be
unworthy of belief. NLRB v. Universal Camera Corp., 179
F.2d 749, 754 (2d Cir. 1950); Herrick & Smith, 275 NLRB
398 (1985); Enterprise Products Co., 265 NLRB 544 (1982).
3. Disparate treatment
However, despite Halford’s having afforded the Respond-
ent an opportunity to lawfully discharge him, had it wanted,
it does not automatically follow that such discharge was law-
ful. If Respondent merely waited for some infraction of the
Respondent’s rules to serve as an excuse to discipline
Halford, and, if in doing so, Respondent seized on conduct
by Halford which it had countenanced by others, then Re-
spondent’s conduct would be deemed illegal.
That is precisely what counsel for the General Counsel
contends has been done in this case. According to counsel
for the General Counsel, Respondent has engaged in dispar-
ate treatment of Halford by disciplining him for breaking
rules which are commonly broken at the facility, and which
have for years been widely known to be broken by both Re-
spondent’s employees and by Respondent’s supervisors.
In my opinion, counsel for the General Counsel has suc-
ceeded in making out a case of disparate treatment. In the
process, together with the violations of Section 8(a)(5) found
below, he has supplied the element of animus necessary to
complete his case of a violation of Section 8(a)(3) of the
Act.
Counsel for the General Counsel must establish unlawful
motive or union animus as part of his prima facie case. If
the unlawful purpose is not present or implied, the employ-
er’s conduct does not violate the Act. Abbey Island Park
Manor, 267 NLRB 163 (1983); Howard Johnson Co., 209
NLRB 1122 (1974). The General Counsel has produced no
direct evidence that Respondent harbored any animus against
the union members, or officers who performed their jobs
zealously, as Halford undoubtedly did. However, direct evi-
dence of union animus is not necessary to support a finding
of discrimination. The motive may be inferred from the total-
ity of the circumstances proved. Fluor Daniel, Inc., 311
NLRB 498 (1993); Asociacion Hospital del Maestro, 291
NLRB 198, 204 (1988).
Halford, Huddleston, and Muehling each recited long lit-
anies of horseplay at the facility of Respondent, going on for
years and years. Many and varied instances of the sorts of
horseplay were given. Many instances were recited where su-
pervisory personnel were either present and knew of, or actu-
ally participated in the horseplay themselves. Some of the in-
cidents involved objects much more substantial and heavier
than a baggie of water being thrown from some high place
in the plant to a lower place (e.g., a dead rat, a dead pigeon,
snowballs, a rock, ice (sometimes by the ice chest full).
Many involved placing water directly on molten or hot
metal, just to see what would happen. There were reports of
‘‘stickball’’ or ‘‘softball’’ games with wadded up tape serv-
ing as a ball. The record is filled with references to a prac-
tice of employees and supervisors playing a prank on one an-
other by dropping, or smashing, an object to the floor di-
rectly behind another person, in order to startle the other per-
son with the loud and sudden noise which resulted. Other
pastimes included ‘‘hosing down’’ others in the plant, using
what is apparently a garden hose.
The listing of such incidents went on and on. It included,
as participants, each of the area supervisors at the facility.
Respondent, of course, takes the view that each of the wit-
nesses just named had an interest in playing up the preva-
lence of such practices. That may be true.
Respondent further argues that all such evidence is both
inconsequential and irrelevant. It points to the fact that the
facility had a new person in charge, Owsley, and that there
is no direct evidence that he had knowledge of the practices
noted above. Respondent argues that only the knowledge of
Owsley, the person who made the decision to discharge
Halford, should properly be at issue or considered relevant.
That view is incorrect in my opinion.
First of all, given the totality of evidence in this case that
virtually all the lower supervisors at the facility had knowl-
edge of such antics as set forth above, and that more than
a few had participated there, it may well be possible to infer
knowledge of such activities on the part of upper manage-
ment, no matter how new the top man may have been to the
scene.
But, in this case there is no need to draw such an infer-
ence. For the testimony of employee Lowell Farmer, as stat-
ed above, had the ring of truth about it in every respect. In
the face of it, the general denial of McLean that he knew of
such activities or tolerated them will not be credited. Instead,
I find that the credible testimony of Farmer, brought out in
examination by Respondent’s counsel, establishes that
McLean, the man widely reputed to actually run the facility,
was fully apprised of such incidents, and, so far as appears,
he did nothing.
643ASARCO, INC.
Thus, Respondent cannot have it that Owsley was the de-
cision maker alone, for he admittedly acted upon the input
of others, prominently including the report of McLean. And,
as shown, McLean, Owsley’s immediate assistant, did have
knowledge of the fact that such incidents of horseplay oc-
curred in the facility.
Instead, contrary to the position of Respondent, since
Halford was the only employee ever discharged for engaging
in horseplay, I find and conclude that the sudden decline in
the level of tolerance for longstanding practices of employ-
ees, coinciding with union activities of Halford, gives rise to
the inference that the Respondent’s stated reasons for dis-
charge were false, and masked a discriminatory intent. All
Brite Window Cleaning, 235 NLRB 596, 602 (1977). This is
especially true where the action taken against the employee
is based on a report by a supervisor, such as McLean, who
was discriminatorily motivated in making the report, in the
sense that he knew full well when reporting to Owsley that
horseplay had long been common in the facility. Bechtel
Corp., 195 NLRB 1013, 1020 (1972).
Based on all the above, plus the finding of violative con-
duct regarding Section 8(a)(5) of the Act, below, establishes
animus sufficiently to serve as a predicate of a violation of
Section 8(a)(3).
I so find and conclude, and shall include an appropriate
remedy therefor.
4. The alleged violation of Section 8(a)(4)
In 1982, Respondent suspended Halford. An unfair labor
practice charge and trial ensued. The decision of the adminis-
trative law judge, in JD–311–83, resulted in a finding that
Halford’s suspension was unlawful. Halford was reinstated,
and the compliance aspects of that case were unremarkable.
However, I find that case memorializes facts and matters
too remote to have relevancy to this case. An allegation that
Respondent violated Section 8(a)(4) is not automatically sup-
ported, in my opinion by a finding made in an unfair labor
practice case 11 years preceding this one. Especially where,
as here, counsel for the General Counsel has conceded that
Respondent has not shown a proclivity to violate the Act.
Nor do I find persuasive the argument of counsel for the
General Counsel to the effect that the meeting at the Re-
gional Office of the Board led to such ill feelings as to war-
rant a finding that the discharge of Halford was in any way
predicated upon it.
Accordingly, I find and conclude that this portion of the
complaint has not been proved, and shall dismiss it.
5. The violation of Section 8(a)(5)
In dealing with a certified or recognized collective-bar-
gaining representative, one of the things which employers
must do, on request, is to provide information that is needed
by a bargaining representative for the proper performance of
its duties. NLRB v. Acme Industrial Co., 385 U.S. 432
(1967). Following an appropriate request, and limited only
by considerations of relevancy, the obligation arises from the
operation of the Act itself. Ellsworth Sheet Metal, 224 NLRB
1505 (1976). In each case, the inquiry is whether or not both
parties meet their duty to deal in good faith under the par-
ticular facts of the case. NLRB v. Truitt Mfg. Co., 351 U.S.
149 (1956). Processing grievances is, as argued by counsel
for the General Counsel, clearly a responsibility of a union,
and an employer must provide information requested by the
union for the purposes of handling grievances. TRW, Inc.,
202 NLRB 729 (1973). The legal standard concerning just
what information must be produced is whether or not there
is ‘‘a probability that such data is relevant and will be of use
to the union in fulfilling its statutory duties and responsibil-
ities as the employees’ exclusive bargaining representative.’’
Bohemia, Inc., 272 NLRB 1128 (1984). The Board’s stand-
ard, in determining which requests for information must be
honored, is a liberal discovery-type standard. Brazos Electric
Power Cooperative, 241 NLRB 1016 (1979). The Board, in
determining that information is producible, does not pass on
the merits of the grievance underlying a request such as was
made in this case; and the union is not required to dem-
onstrate that the information sought is accurate, nonhearsay,
or even ultimately reliable. W. L. Molding Co., 272 NLRB
1239 (1984).
Counsel for the General Counsel argues that Respondent
failed and refused to provide the Union with scarcely any of
the information sought in the Union’s request, and seeks a
remedy for a number of refusals. However, as shown above,
the complaint’s allegations are limited to the Respondent’s
failure and refusal to list the names and telephone numbers
of witnesses who were or would be involved in the grievance
referred to in paragraph 12 of the complaint.
As shown above, Owsley sought to portray this matter as
involving information as readily available to the Union as to
the Respondent. That’s not correct. For all that the Union is
requesting is the identity of and a means of locating, wit-
nesses whom Respondent intends to utilize in the handling
of the grievance. That information, which exists only in the
minds of Respondent’s officials, is easily listed, and is of no
hardship to Respondent to supply to the Union.
In failing and refusing to do so in this case, it violated
Section 8(a)(5) of the Act.
Nor can I excuse Respondent’s obvious gamesmanship
with Halford, following his discharge. Unlike Respondent’s
argument in brief, which seeks to trivialize and scoff at this
failure, it seems at least as likely that the failure and refusal
of Respondent to continue dealing with the representative of
the collective-bargaining representative of its employees, just
as it had done for years, could be seen as an effort to deni-
grate and humiliate. For, it is absolutely clear that it is the
right of each party to a collective-bargaining relationship to
select its representative for bargaining and negotiations, just
as it is the duty of each party to deal with the chosen rep-
resentative of the other party. Fitzsimmons Mfg. Co., 251
NLRB 375 (1980).
Here, Respondent failed to allow the Union’s chosen rep-
resentative to take part in routine inspections by OSHA in-
spectors, as had been done for years. It also failed and re-
fused to allow the Union’s chosen representative to come
onto its premises in order to meet with a high level official
of Respondent, as had been previously arranged.
I find and conclude that by such conduct, Respondent vio-
lated Section 8(a)(5) of the Act.
Summarizing, I find and conclude that counsel for the
General Counsel has failed to prove the allegation of a viola-
tion of Section 8(a)(4) of the Act. Accordingly, that allega-
tion shall be dismissed. However, I further find and conclude
that counsel for the General Counsel has proven each of the
644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
17 See Sterling Sugars, 261 NLRB 472 (1982).
18 All outstanding motions, if any, inconsistent with this rec-
ommended Order are denied. If no exceptions are filed as provided
by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to
them shall be deemed waived for all purposes.
allegations of violations of Section 8(a)(3) and (5) of the Act
made and contained in the complaint against Respondent,
and I shall order an appropriate remedy for all such illegal
actions.
CONCLUSIONS OF LAW
1. The Respondent, Asarco, Incorporated, is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union, United Steelworkers of America, Local
5613, AFL–CIO is a labor organization within the meaning
of Section 2(5) of the Act.
3. Since on or about May 24, 1993, Respondent has vio-
lated Section 8(a)(5) and (1) of the Act by refusing to bar-
gain collectively with the Union’s chosen representative, and,
since on or about May 25, 1993, by failing and refusing to
provide information as requested by the Union which is rea-
sonably necessary to the performance of its duties as a griev-
ance representative, specifically the names and telephone
numbers of witnesses in the grievance mentioned in para-
graph 12 of the complaint.
4. The bargaining unit described below is an appropriate
unit for collective bargaining within the meaning of Section
9(b) of the Act:
Included:
All production and maintenance employees employed
by the Respondent at its Amarillo, Texas facility;
Excluded:
Office, clerical employees, clerk weighers, counter
clerks, shipping and receiving clerk, technical, and lab-
oratory employees, instrument technicians, fire equip-
ment inspectors, professional employees, skilled and ap-
prentice electricians, guards and supervisors as defined
in the Act.
5. Since on or about May 20, 1993, Respondent has vio-
lated Section 8(a)(1) and (3) of the Act by discharging its
employee, Jerry Halford, because he had engaged in union
or other protected, concerted activities.
6. The above unfair labor practices have an effect upon
commerce as defined in the Act.
7. Respondent has not violated the Act in any other re-
spect.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found that employee Jerry Halford was unlawfully
discharged, Respondent shall be ordered to offer him imme-
diate reinstatement to his former position, displacing if nec-
essary any replacement, or, if not available, to a substantially
equivalent position without loss of seniority and other privi-
leges. It shall be further ordered that Jerry Halford be made
whole for lost earning resulting from his discharge, by pay-
ment to him of a sum of money equal to that he would have
earned from the date of his discharge to the date of his return
to work, less net interim earnings during that period. Back-
pay shall be computed in the manner prescribed by F. W.
Woolworth Co., 90 NLRB 289 (1950), and Florida Steel
Corp., 231 NLRB 651 (1977).16 Interest on any such back-
pay shall be computed as in New Horizons for the Retarded,
283 NLRB 1173 (1987).
It shall be further ordered that the Respondent remove
from its records any references to the discharge mentioned,
and provide Jerry Halford written notice of such expunction,
and inform him that the Respondent’s unlawful conduct will
not be used as a basis for further personnel actions against
him.17
The Order will require Respondent to furnish the Union
with the information which it has unlawfully failed and re-
fused to furnish, and, if requested by the Union, to deal with
Jerry Halford as the chosen representative of the Union.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended18
ORDER
The Respondent, Asarco, Incorporated, Amarillo, Texas,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with the Union as
the exclusive bargaining representative of its employees in
the appropriate bargaining unit set forth below, by refusing
to deal with or recognize the Union’s chosen representative,
or by failing and refusing to provide information necessary
to the Union’s performance of its duty to process grievances.
(b) Discharging or otherwise discriminating against em-
ployees for having engaged in union or other protected, con-
certed activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Furnish the above-named labor organization with the
information requested in its letter of May 25, 1993, as speci-
fied in paragraph 12 of the complaint herein, and recognize
and deal with the chosen representative of the Union.
(b) Offer, if not already accomplished, Jerry Halford im-
mediate and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed, and make him whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against him, in the manner set forth in the rem-
edy section of the decision.
(c) Remove from its files any reference to the unlawful
discharge, and notify Jerry Halford in writing that this has
been done and that none of these records will ever be used
against him in any way.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
645ASARCO, INC.
19 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its office and facility in Amarillo, Texas, copies
of the attached notice marked ‘‘Appendix.’’19 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 16, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail or refuse to bargain collectively in good
faith with United Steelworkers of America, Local 5613,
AFL–CIO in the following unit which is appropriate for the
purposes of collective bargaining:
Included:
All production and maintenance employees employed
by us at our Amarillo, Texas facility;
Excluded:
Office, clerical employees, clerk weighers, counter
clerks, shipping and receiving clerk, technical, and lab-
oratory employees, instrument technicians, fire equip-
ment inspectors, professional employees, skilled and ap-
prentice electricians, guards and supervisors as defined
in the Act.
WE WILL NOT fail or refuse to provide the above-named
labor organization with information requested by it which is
reasonably necessary or useful to it in representing employ-
ees in collective bargaining, including the processing of
grievances, with us, and WE WILL, if requested by the labor
organization named above, recognize and deal with its cho-
sen representative, Jerry Halford.
WE WILL NOT discharge employees because they have en-
gaged in activities in support of the above-named labor orga-
nization, or because they engaged in other activities protected
by the Act.
WE WILL, on request, recognize and bargain collectively in
good faith with the above-named labor organization as the
exclusive collective-bargaining representative of our employ-
ees in the unit described above with respect to the wages,
hours, and working conditions of all the employees in the
above-described unit.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Jerry Halford immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously enjoyed
and WE WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any net in-
terim earnings, plus interest.
WE WILL notify Jerry Halford, in writing, that we have re-
moved from our files any reference to his discharge, and WE
WILL assure him that none of these records will ever be used
against him in any way.
ASARCO, INCORPORATED