Howmet Castings & Services, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 29, 2006

05-CA-032642 (N.L.R.B. Dec. 29, 2006)

JD–89–06
Hampton, VA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

HOWMET CASTINGS & SERVICES, INC.

and Cases 5–CA–32642 and
5–CA–32823
UNITED STEEL WORKERS OF AMERICA,
DISTRICT 8, AFL–CIO, CLC

Thomas P. McCarthy, Esq., for the General Counsel.
Thomas V. Walsh, Esq. (Jackson & Lewis LLP),
of White Plains, New York, for the Respondent.
Brad Manzolillo and Fentre Graves-Neal, Esqs.,
of Pittsburgh, Pennsylvania, for the Charging Party.

DECISION

STATEMENT OF THE CASE

MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Hampton,
Virginia on July 26 and 27 and August 9, 10, 11, and 17, 2006. The charge in Case 5–CA–
32642 was filed by the United Steelworkers of America, District 8, AFL–CIO, CLC (the Union)
on August 30, 2005,1 and served on Howmet Castings & Services, Inc. (the Respondent) on
August 31. The complaint issued September 26, alleging that the Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act) when John Klepeisz, a supervisor,
interrogated employees about union activities on or about June 8, told employees on or about
June 9 they were going to destroy the Company because of their union activities; and orally
promulgated an overly-broad restriction on the distribution of union literature on July 14, by
telling employees that they could hand out union literature in nonwork areas only if it did not
cause a disturbance. The complaint further alleged that on or about June 14, security officer
Stewart orally promulgated an overly broad restriction on the distribution of union literature, by
telling employees they could not hand out union literature in nonwork areas. The matter was set
for hearing on January 5, 2006.

On December 15, the Respondent issued a final written warning and 2-week unpaid
suspension, effective the eve of trial on January 4, 2006, to William Mason, a likely witness for
each of the 8(a)(1) allegations in Case 5–CA–32642. This discipline arose out of a safety
incident that occurred on November 15. The Union filed the charge in Case 5–CA–32823 on
December 2005. It filed the first amended charge in Case 5–CA–32823 on February 23, 2006.
On March 31, 2006, the Regional Director issued an order consolidating cases, consolidated
complaint and notice of hearing, as amended at hearing, and served it on the Respondent that
date. In addition to pleading each of the 8(a)(1) allegations set forth above in Case 5–CA–
32642, the amended consolidated complaint alleges that the Respondent violated Section

1 All dates are in 2005 unless otherwise indicated.

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8(a)(1) on or about December 5 when Human Resources Director Teresa Leavitt told
employees they could be in trouble if they told anyone about a safety investigation. It also
amended the date of the Respondent’s alleged Section 8(a)(3) and (4) violations to December
15, alleging that Mason was disciplined because he engaged in protected concerted activities,
testified before the Board at the preelection representation hearing in Case 5–RC–15855,
subsequently provided a supporting affidavit to the Board, and was expected to testify at the
unfair labor practice hearing in Case 5–CA–32642. In its answers to the initial and consolidated
complaints, served October 6 and April 14, 2006, respectively, the Respondent essentially
denied any violations of the Act, but admitted the jurisdictional allegations. In addition, the
Respondent admitted the statutory supervisory and/or agency status of all individuals named in
paragraph 4 of both complaints, except Corky Turner.2

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following

Findings of Fact

I. Jurisdiction

The Respondent, a Delaware corporation, produces structural and investment castings
at its facility in Hampton, Virginia, where it annually purchases and receives goods valued over
$50,000 directly from outside the State. The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

A. Background

The Respondent’s plant in Hampton, Virginia, employs approximately 1000 employees
in two divisions. One division manufactures industrial gas turbines. The other division
manufactures nickel and cobalt super alloy castings for aircraft engines, and is commonly
referred to as the structural division. The plant operates three weekday shifts: 8 a.m. to 3 p.m.; 3
p.m. to 11 p.m., and 11 p.m. to 7 a.m. The largest group of employees works on the first shift.

The Respondent’s employees produce castings based on specifications provided by the
engineering department. Team leaders direct and/or assist operators whenever necessary.
Operators in Department 43 use machinery that is elevated on tables. They include hydraulic
water blast tables and KLK tables. A hydraulic KLK machine is a 60-inch wide rotary grinder
used to remove gauges. It lies on a stationary table, which sits on hydraulic lifts and is
adjustable to a height of anywhere between 23 to 31 inches above ground. The water blast
tables are similar to the hydraulic KLK tables, are also adjustable in height, and utilize hoists to
lift heavy parts. Prior to January 2006, water blasters and KLK machine operators customarily
climbed onto their work tables, stood on them, secured parts to tables and hoists, and frequently
leaned over as they worked. There were no step stools in either the water blasting area or
Department 43 prior to that time.

2 GC Exhs. 1(a)-(r), 2; Tr. 9-11.

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The relevant persons in this controversy are: Robert Baker, structural division plant
manager from January 2001 to October 2005; John Klepeisz, structural division engineering
manager from October 2004 to March 2006; Rebecca May Wilson, structural division lead
supervisor for Departments 39, 43, 45, and 48; first-shift team leaders J. W. Reed and Donna
Watson; Human Resources Director Teresa Leavitt and two members of her staff, Enid
Moorman and Deborah Batliner; Corky Turner, the manufacturing engineer responsible for
instructing operators on the safe use of machinery; William Mason, the alleged discriminatee,
and the other six employees in Department 43—Tyrone Morris, Tolbert Munn, Russell Joyner,
Michael Boykins, Tim Barnes, and Richard White.

The central issue in this case is the Respondent’s disciplinary reaction toward Mason’s
operation of the hydraulic KLK machine. Mason, a grinder/polisher employed by the
Respondent over 21 years on the first shift, operates several machines. He operates the KLK
machine about three times a week. Mason was trained by Turner to stand on the KLK table as
he performed his work. As such, Mason’s custom and practice was consistent with that of other
operators in Department 43.3

The Respondent has a progressive disciplinary policy, which provides the following
incremental steps: a record of conversation; written discussion; first written warning; final written
warning; and termination. Warnings remain on file for 12 months. The Respondent’s
environmental health and safety policy, however, provides for three levels of discipline
depending on the severity of the infraction—first step-nonserious, second step-nonserious,
serious and willful. Safety infractions remain in the employee’s personnel file record for 18
months.4 As of November 2005, Mason was still under a final written warning issued by
Klepeisz on October 26, 2004. That discipline resulted from a safety violation after a machine
belt unraveled.5

B. The Organizing Campaign

The Union initiated an organizing campaign at the Respondent’s Hampton facility in or
around April 2004. The effort included literature distribution promoting the Union by about 50
employees, including Mason. Mason also openly advocated for the Union in other ways. He
attended organizational meetings, wore union buttons and T-shirts at work, signed a letter
informing the Respondent that he and certain other employees were organizers, and solicited
authorization cards.

Baker, Klepeisz, Wilson, and Reed were well aware of Mason’s role on behalf of the
Union. In fact, between August 2004 and the representation election on May 26, Klepeisz had
up to six conversations about the Union with Mason at his workstation. Klepeisz regularly walks
through Department 43 every day and it was common for him to have discussions on the shop
floor with Mason. Mason began many of those conversations by asking about the Respondent’s
monthly sales performance. Klepeisz would tell him and they would discuss possible
approaches for improvement. Mason would also bring up the issue of employee communication
with management. This would then lead to discussion of the Union. Klepeisz would suggest that

3 This finding is based on Mason’s credible and unrefuted testimony that he, White and
third-shift grinder/polisher Thurman Cross customarily stood on the KLK table and leaned over
to perform their work to secure parts to the table. Tr. 310–311, 314–320, 363-364.
4 R. Exhs. 1(a), 2–4.
5 Mason conceded that, as of November 2005, he was still on a final warning. Tr. 311–312,
376; GC Exh. 13.

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employees did not need someone to speak for them and should feel comfortable approaching
management with ideas and problems.6

C. The Representation Election

On March 25, the Union filed a petition in Case 5–RC–15855 to represent certain
production and maintenance employees at the Respondent's Hampton facility.7 During the
representation proceeding in April, Baker and Klepeisz, among others, testified for the
Respondent. They were present when several employees, including Mason, testified.8 Mason’s
testimony triggered harsh feelings on the part of Wilson.9 In late April, Mason and Russell
Joyner, a cutoff operator on the first shift in Department 43, were told by then-team leader Todd
Kendrick that Mason better watch his back because he had just attended a meeting where
Wilson said that she was going to do what it took to get back at Mason.10

The Regional Director's Decision and Direction of Election issued April 29, 2005, finding
the following unit appropriate:

All full-time and regular part-time production and maintenance employees, including
shipping and receiving and tool room employees, quality control employees, quality
auditors, quality systems technicians, and document control employees employed by the
Employer at its Hampton, Virginia facility, but excluding temporary employees, team
leaders, guards and supervisors as defined by the Act.

In the Board election held on May 26, the Union was defeated by a vote of 341 to 185.
On May 27, Baker signed and mailed a letter to all employees. The letter stated, in pertinent
part:

Yesterday a large majority of our Howmet family spoke to protect our direct working
relationship by nearly a 2 to 1 margin. Many valid issues and concerns were raised
during the campaign and I, personally, take your “NO” vote as a mandate for continuing
to make positive changes. I realize the importance of each issue and I am committed to
working with my staff and each of you to properly resolve them. We must build a team
here at Hampton based upon mutual respect and trust.

6 The Respondent’s witnesses did not deny knowledge of Mason’s role in the campaign, but
there was disagreement as to how often Klepeisz and Mason spoke in the latter’s work area
during the campaign. I credited Klepeisz’ testimony on this issue, as it was consistent with my
finding, infra, that Klepeisz passed through Department 43 and Mason’s work area on a nearly
daily basis. Tr. 74, 284–285, 288, 293-295, 415–417, 689–693, 717. In addition, Mason
conceded discussing the business with Klepeisz on several occasions. Tr. 1161–1162.
7 GC Exh. 3.
8 GC Exh. 5, p. 2.
9 I did not, however, credit Mason’s assertion that an assignment, 1 week after he testified in
the representation proceeding, to perform a “knockout” assignment was related to his testimony.
The record is devoid of testimony to suggest that Mason was never given other assignments
and there is insufficient proof that the task was not assigned for a legitimate operational reason.
Tr. 384–388.
10 This finding is based on the credible testimony of Joyner, as corroborated by Mason, and
not refuted by Kendrick, a supervisor at the time the statement was made. Kendrick is still
employed by, and was available to, the Respondent. Tr. 513–516, 1184–1185. His hearsay
testimony was admissible pursuant to FRE 801(d)(2)(D).

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The competitive forces in our business are great and we must move forward as a team.
Our future depends on it. I ask everyone, regardless of how you voted, to join me in
making Hampton once again the flagship of Howmet.

Again, thank you for your vote of confidence. I look forward to seeing each of you at our
"Reconciliation Picnic" in mid-June.11

D. Postelection Concerted Activity

1. The June 6 handbilling

A Certification of Results of Election issued on June 10.12 Despite the election loss,
Mason and several other union supporters continued advocating for a union. They wore T-shirts
promoting the Union and continued distributing union literature near the facility. During the
morning of June 6, a few employees, including Mason and Sylvester Hill, and union
representatives assembled outside the plant gates and distributed flyers announcing a meeting
to form an employee council representing employees interested in union representation. Baker
and Klepeisz were among the employees that Mason handed a flyer.13 On June 7, Baker
responded by distributing a memorandum to employees. It was entitled, “What’s It All About?”
The memorandum, referencing Mason’s flyer, stated, in pertinent part:

This flyer is really puzzling a lot of people. Many employees have asked “the union lost
the election – what are they talking about now?”

First off, I assure you there is no need to be concerned. There will be no negotiations
with a Steelworker’s “council” regarding any Howmet issues. The union lost the election
by almost a 2-1 margin. Hampton employees have spoken loud and clear, and we will
respect your decision. We expect the NLRB will certify the election results in a few days.

Before the election, the union made a lot of half-true statements to employees. Now,
even though you’ve already said “NO” to the Steelworkers, the union is still trying to
mislead you.

The truth is that the union has no legal authority to “address” anything with Howmet.

A contract just for certain people? Not here! Howmet is committed to dealing with all our
employees equally and directly. The union has no legal power to make this happen.

You don’t need the union to be protected by the law. Howmet respected your legal rights
before the election, and that’s just what we’ll continue to do.

The union lost the election. The Steelworkers have no legal authority here.

If you have any questions, please feel free to ask me or any supervisor.

11 GC Exh. 6, 10.
12 GC Exh. 7.
13 There is no dispute regarding this activity and the Respondent’s awareness of it. Tr. 57–
59, 163–165, 289–293, 297–298, 455–457, 694; GC Exh. 8.

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I’m looking forward to seeing you at Picnic.14

2. Klepeisz’ June 8 conversation with Mason

On June 8, Klepeisz approached Mason between 8 and 9 a.m. in his work area and
asked what was going on, since the union supporters lost the election. Mason responded that
another election was possible, but Klepeisz noted that one could not be held for at least a year.
Mason acknowledged that fact, but noted that a year goes by fast. Klepeisz urged Mason to
“work through this” with management and to “just be a man” and talk to Baker. Mason said he
did not have a problem with that idea and would call Baker.15

3. The June 9 picnic

On June 9, prior to the start of the Reconciliation Picnic, Mason was in his work area
when Klepeisz approached him at about 7:15 a.m. Klepeisz looked down at Mason's union T-
shirt—it stated "Organize Now"—and, with a look of disgust, said: “You know that little
conversation you and I had yesterday, you can forget it. You're going to destroy the company.”
Mason responded that nothing had changed, the issues were the same, and he would maintain
his opinion. The conversation ended, and Klepeisz walked away.16

4. The June 14 handbilling

Prior to the start of the first shift on June 14, Mason and Sylvester Hill distributed flyers
to arriving employees near the facility entrance. They were in an area that was about 6–10 feet
in front of the turnstile where employees entered and exited the facility. The literature
distribution was uneventful. However, Baker learned of this activity and directed Wilson to have
a security guard stop the activity. About 6:40 a.m., Wilson, exited through the turnstile, walked
past Mason and Hill as they handed out flyers and proceeded toward the nearby security guard
post. Wilson returned a few minutes late, walked past Mason, Hill and Ralph Miles, who had just
joined the handbilling activity, and reentered the facility.

At about 6:45 a.m., after getting clarification of the directive from, and being told by,
Baker that the employees voted against the union and “we can not have this,” security guard A.
Stewart drove up to Mason, Hill, and Miles and told them to stop distributing flyers and remove

14 GC Exh. 9.
15 Testimony by Klepeisz and Mason was fairly consistent on this point. Tr. 293–295, 694–
698. However, I did not credit Klepeisz’ account that he went to speak with Mason about the
handbilling because team leaders had questions that he could not answer, about why people
were still handbilling. Baker’s letter issued the same day clearly refutes any alleged ignorance
on Klepeisz’ part. GC Exh. 9. Klepeisz also conceded that he knew that Howmet was
represented by legal counsel. Tr. 719.
16 I credited Mason’s detailed testimony regarding this incident. Tr. 296–300, 1163–1164.
Klepeisz denied threatening Mason that day, but could not recall the conversation. I did not find
him very credible. Klepeisz frequently hedged, was evasive on cross-examination and evinced a
selective memory regarding facts set forth in his purported memoranda, as well as his testimony
in the prior proceeding. Tr. 99–100, 713–714, 730. Furthermore, his claim that he did not have
the authority to tell Mason to see Baker contradicted his testimony regarding his June 8
conversation with Mason. Tr. 699.

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the literature from the property.17 Stewart gave no reason for the directive. Mason and Hill
asked him for his name, as well as the name of the person who issued the directive. Stewart
told them the order came from Baker. The literature distribution stopped. At the time, there were
several minutes left before the start of the first shift and employees were still arriving for work.18

Later that morning, after consulting with legal counsel, Baker reconsidered and decided
employees could distribute literature after all. In such instances, however, the security staff was
required to observe the activity, and get the names and badge numbers of the employees
involved.19 At approximately 11 a.m. that day, Klepeisz approached Mason in his work area.
Klepeisz told Mason that he could distribute union literature as long as he did not create a
disturbance. Mason denied that they caused a disturbance. In any event, neither Klepeisz nor
anyone else from management ever spoke to Hill or Miles about the incident, or told them that
the company made a mistake and employees were free to conduct such handbilling outside the
turnstile on nonwork time in nonwork areas.20

E. The Union Files Unfair Labor Practice Charges

Mason responded to Klepeisz’ statements of June 8 and 9, and Baker’s action on June
14, by seeking the assistance of the Union. On August 31, the Respondent was served with the
unfair labor practice charge in Case 5–CA–32642. Baker subsequently reviewed the
Respondent's position statement mentioning Mason before it was submitted to the Board. On
October 6, the Respondent was served with the related complaint. Baker was also aware that a
hearing would be held concerning Mason’s 8(a)(1) charges on January 5, 2006.21 Klepeisz was
also aware that Mason was a potential witness against the Respondent.22 In any event, Mason
did not encounter any further problems with management until issues arose in November
concerning his failure to follow Wilson’s instructions during a safety shop talk.

17 The Respondent admitted that Stewart, who did not testify, was a statutory agent. GC
Exh. 1(r), par. 9.
18 I based this finding on the fairly consistent, credible and unrefuted testimony of Mason,
Miles, and Hill. Hill provided seemingly inconsistent testimony as to whether it was Baker or
Stewart who ordered them to stop, but explained the inconsistency and was otherwise forthright
in his responses. Miles, nervous and mild mannered, was even more credible in his testimony.
Tr. 170–176, 188–189, 192–199, 206–208,301–307, 455; GC Exhs. 11–12.
19 This finding is based on Stewart’s incident report, which serves as an admission against
the Respondent’s interests. GC Exh. 45.
20 I based this finding on Mason’s credible testimony. Tr. 307–308, 1164. Klepeisz’
testimony regarding this conversation was not credible, as he had a poor recollection of the
events that morning and his version conflicted with Stewart’s report. In any event, neither
Klepeisz nor anyone else from management spoke with Miles or Hill about the incident. Tr. 176,
208–209, 699–702.
21 When confronted with logical questions as to his knowledge of Mason’s involvement as a
potential witness on January 5, 2006, Baker was contentious and evasive. Tr. 60–63.
22 Klepeisz admitted seeing Mason’s name on a Board document relating to the unfair labor
practice charges. Yet, he denied knowledge that the allegations involving Mason concerned
one-on-one conversations that he had with him. Klepeisz then admitted that nobody else was
present when he approached Mason at his work station on June 8 and June 14 to discuss
Mason's handbilling. Tr. 728–730.

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F. The Respondent’s Safety Shop Talks

The Respondent regularly holds weekly safety meetings in each department. On
November 10, concerned about a rash of workplace injuries, the Respondent supplemented its
safety program with daily shop talks in each department. Wilson conducted the daily safety shop
talks for her Departments—39, 43, 45 and 48—at or around 9:50 a.m. All employees, including
team leaders, were required to sign an attendance sheet.23

Shortly after the November 14 safety shop talk, Wilson observed Bruce Scott, a
machine operator, standing on a rolling cart as he worked on a casting. Wilson, concerned
because Smith was bending over as he performed his task, asked him get off the cart and
explained that he was working in an unsafe manner. Realizing, however, that other operators
performed elevated work in a similar manner, Wilson took no further action. A short time later,
Wilson observed another machine operator, Ann Mote, standing on an open drawer. Wilson
asked her to get down, asked why she was standing on the table drawer, and told her not to do
it anymore. Wilson then directed Mote to use a step stool, but took no further action.24

On November 15, Wilson conducted a safety shop talk regarding proper posture,
bending and lifting. During the session, which was devoted entirely to this topic, Wilson read
directly from a shop talk sheet. The topic was “Lifting and Lowering―Safe Lifting Techniques.”
She did not state, however, that operators were prohibited from standing on tables, fixtures or
carts. Nor did she refer to the use of a step stool if one was working above a certain height.25

After the meeting, Mason was standing on a KLK table tightening a bolt with a 1-foot
long ratchet to a casting on the KLK machine.26 At the time, the table was locked and

23 This fact is not disputed. Tr. 115–116, 240–241, 245,335–337, 644–645, 777–784, 897–
898; R. Exh. 24; GC Exhs. 17, 46.
24 This finding is based on Wilson’s unrefuted testimony. Tr. 789–793, 854–857.
25 I based the finding that Wilson read directly from the sheet on the credible testimony of
Mason, Morris, and Munn. All three signed the attendance sheet and testified that Wilson read
directly from the sheet, which made no reference to standing on tables. Tr. 242–244, 254–255,
342, 347, 1143–1148, 1175–1176; GC Exh. 17, p. 4. Morris and Munn impressed me with their
spontaneous testimony and concessions in certain instances in which they lacked full
recollection. Wilson, Reed and Watson, on the other hand, were not nearly as credible on this
point. Wilson testified that she mentioned moving tables, carts, or fixtures, but conceded that
there was no reference to tables on the sheet. She also conceded that she made no reference
to stationary fixtures such as the KLK table. Tr. 121, 358–359, 756, 795–798. Reed and
Watson, both team leaders, supported Wilson’s version, but neither signed the attendance
sheet as required. R. Exh. 46. Furthermore, the testimony of Reed, who talked a mile a minute
and seemed overly rehearsed, was inconsistent as to whether his written statement regarding
the November 15 meeting was based on his recollection or told to him by Enid Moorman, a
personnel department employee who did not testify, on December 5. He also provided
contradictory testimony as to whether he knew on December 5 that Leavitt was investigating
Mason. Tr. 646–662; R. Exh. 1. Watson’s testimony, that Wilson performed a demonstration
about not standing on tables, varied from even Wilson’s version of the meeting. Tr. 1112–1117.
Furthermore, a questionnaire about the meeting that Watson completed for Human Resources
made no reference to standing on tables. R. Exh. 10; Tr. 1070. Finally, I draw an adverse
inference against the Respondent’s for its unexplained failure to call Kenny Hayes, who signed
the attendance sheet, as a witness. Accordingly, I find that, had Hayes been called, he would
have supported Mason’s version as to what Wilson said at the meeting.

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approximately 32 inches above ground. Mason’s feet were planted partially on the table, with his
heels extended slightly over the table edge. His legs were fairly straight, but his torso was
leaning over the casting.27 At one point, he looked up and saw Wilson observing him from about
35 feet away. Mason asked Wilson if he was “doing something unsafe.” Wilson asked why he
was standing on the table. Mason responded that he was doing things the way he liked to do it.
Wilson directed him to get off the table, went next door to Department 48, picked up a stool, and
directed Mason to use it. This was the first time that Mason was directed to use a step stool
while working on the KLK machine.28 At no time during this conversation, however, did Wilson
indicate to Mason that he violated a directive from the safety shop talk earlier that morning.29

After her encounter with Mason, Wilson spoke with Klepeisz and told him what
happened.30 She did not, however, tell Klepeisz that her November 15 safety shop talk included
a prohibition against employees standing on carts, tables or fixtures.31 Nor did he direct Wilson
to fill out a disciplinary report, as required by the Respondent’s procedures.32
_________________________
26 The KLK machine is fairly and accurately depicted in several photographs. R. Exh. 23.
27 Mason and Wilson disagreed as to the degree of the angle that Mason’s back was bent,
but it is agreed that he was learning over to at least 45 degrees. Tr. 353, 807–808.
28 The versions of Mason and Wilson diverged with respect to the extent that Wilson
directed him to use the stool. It is clear that she did more than request that he use the stool.
However, she did concede that a KLK machine operator would not need a step stool if he simply
adjusted the height of the table. Tr. 130, 359, 364–366,438, 453, 463–464, 524, 764–765; 812,
858–865; R. Exh. 26; GC Exh. 37
29 I did not find Wilson’s testimony credible with respect to the November 15 incident. It was
not until November 25 that she began recording her version of the events in an undated
memorandum. GC Exh. 37. She then modified it on December 9. Tr. 151; GC Exh. 37(a). In so
finding, however, I did not credit testimony elicited by the General Counsel pursuant to FRE 701
as to Wilson’s reputation for honesty. Joyner, a former team leader, opined that Wilson would lie
to protect the Respondent’s interests. Asserting that a supervisor generally seeks to protect
management’s interests, however, seems too vague. Tyrone Morris, a water blaster in
Department 43, also offered doubts about Wilson’s honesty because her written evaluation of
Morris contained lies. That opinion, however, seemed to be based on personal issues between
Morris and Wilson. Tr. 218–222, 227, 510–512.
30 Klepeisz and Wilson provided inconsistent testimony as to what they told each other,
when she went to Klepeisz, and whether her concern was a general concern about employees
paying attention or about Mason. Tr. 87–88, 139, 704–709, 812, 867, 882. I based this finding
on the likelihood that Klepeisz would direct Wilson to speak with Leavitt about a disciplinary-
related issue concerning a specific employee and not a general concern about how to get
employees to pay attention at meetings.
31 I did not credit Klepeisz’ testimony that Wilson and Kenny Hayes told him that she went
"off-script" that day and spoke about standing on tables because of the Scott and Mote
incidents. Tr. 707. As noted in fn. 25, supra, I already found that Hayes, had he been called,
would have supported Mason’s version of the meeting. Also, as previously discussed, Wilson
and Klepeisz were not generally credible regarding the investigation that followed, failed to
spontaneously document the incident or their discussions, and that casts grave doubt on their
testimony regarding their alleged discussions about the November 15 shop talk. It should be
noted that I arrived at these findings without placing any weight on the fact that Wilson and
Hayes had a personal relationship at the time. Tr. 89–90, 113, 221, 228.
32 The Respondent’s custom and practice require that a supervisor witnessing an incident
generate a disciplinary report of the incident as soon as possible after it occurs. Tr. 64, 91–96;
GC Exhs. 38 and 39(a)–(k).

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Wilson went to see Leavitt on November 18.33 During that meeting, they spoke about the
Mason incident on November 15. That led to a discussion as to whether other employees also
stood on tables. Wilson, as well as Klepeisz, already knew the answer to that question, since
they were present in or passed through Department 43 regularly and observed work on the KLK
and water blast tables.34 Nevertheless, at Leavitt’s suggestion, Wilson asked Klepeisz to
investigate whether other employees, in performing similar tasks, also stood on tables.35
Klepeisz interviewed one grinder/polisher who worked on the KLK machine—Rick White. White
told Klepeisz learned that he customarily climbed onto the table, stood on it as he worked and
had not been trained to do otherwise. Based on this information, Klepeisz confirmed that that
other grinder/polishers and water blasters customarily stood on tables as they worked. He told
Leavitt and Wilson there was a “communication problem” in safety meetings and immediate
steps needed to be taken to ensure that the information is being disseminated to all shifts.36

At some prior to November 23, Wilson had Scott and Mote recreate their elevated
standing positions of November and took photographs.37 On November 23, Wilson conducted a
two-part safety shop talk in the cafeteria. The meeting began with a presentation on electrical
safety by team leader Watson.38 Many employees had trouble hearing due to noisy ceiling
fans.39 In addition, numerous employees were having conversations and not paying attention.
Wilson took note of this and, after Watson completed her presentation, asked employees to
raise their hands if they had been able to hear Watson. Only 4 out of approximately 40 to 60
employees raised their hands. Mason, Morris, Munn, and White were not among the employees
who raised their hands. Wilson then asked Watson to reread the electrical safety information to
make sure that everybody understood the information.

After Watson’s presentation, Wilson read the following:

Safety Alert

33 Leavitt testified to a custom and practice of taking handwritten notes in meetings, but
explained that her notes of this meeting were misdated as November 19 and should have been
November 18. Tr. 570.
34 This finding is based on the credible and unrefuted testimony of Russell Joyner,
Michael Boykins, Tyrone Morris, Tolbert Munn, and Corky Turner. Tr. 258, 327, 331, 367–369,
477–491, 521–523, 742, 747.
35 I did not credit the assertions of Wilson, Leavitt, and Klepeisz that the focus was originally
a general one concerning employees’ attention at safety meetings. Tr. 139, 569, 814–815, 897,
905–910, 996–997; GC Exh. 48. As previously noted, Leavitt’s involvement was triggered when
management, including Klepeisz and Wilson, decided to focus on Mason’s work performance.
Furthermore, the circumstances surrounding Klepeisz’ January 21 note were somewhat
suspicious and I did not credit it as a record kept in the regular course of business. He had no
idea who asked him to write the note, which was generated only after unfair labor practice
charges were filed. Furthermore, he wrote that Mason had climbed onto the KLK machine, a
version not adopted by Wilson. Tr. 49, 674–678; GC Exhs. 34, 49.
36 Tr. 87, 90, 103–109, 678–680; 711–713, 908; GC Exh. 49.
37 Tr. 1118–1119; GC Exhs. 19, 29.
38 Mason’s recollection regarding the November 23 safety shop talk was not very good. He
initially testified that he was not sure if she attended that meeting, but then admitted she was
there.
39 Wilson conceded that the fans in the cafeteria ran all year round. Tr. 871, 889.

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Your safe stepping requirement is approximately 12 to 14 inches from the floor or base
stand.
No standing on tables, or fixtures that are higher than 14 inches off the floor.
Any tables or fixtures that meet the 14 inch requirement needs to be locked down, wheel
locked, press locked or bolted to the floor.
Anything higher we need to be using a ladder or stepstool.
When trying to achieve a height that exceeds 12 to 14 inches, you must use a stepping
device (ladder or stool) to get to the preferred height.
Please ensure you're paying close attention to your posture when leaning, lifting or
working.
No setting [sic] on tables or machines.
Any platform that exceeds 48 inches from that base needs to have handrails.

Wilson also passed out photographs and conducted a demonstration of how to stand on
carts and tables. She also explained that rolling tables in the department were unsafe and
needed to be locked in place. Wilson then displayed an overhead projector showing several
photographs of employees using carts in different positions. However, none of the pictures
included any of the KLK or water blasting tables.40 Wilson’s comments presented a
predicament for employees who were required to stand on tables in order to lock parts of the
water blasting and KLK hydraulic machines.41

G. The November 23 Meeting

After the November 23 safety shop talk, Wilson told Klepeisz that Mason was one of
numerous employees who had not paid attention at that meeting. Klepeisz directed Wilson to
speak with Leavitt about possible disciplinary action. Wilson went and spoke with Leavitt. She
told Leavitt about Mason’s lack of attention during the November 23 meeting, her discussion
with Mason on November 15, and the fact that he was already on a final disciplinary warning.
Leavitt then asked Wilson to bring in Mason for a meeting.

Sometime later that morning, Mason reported to Leavitt's office. Leavitt and Wilson were
present. Wilson informed Mason that management was conducting a safety investigation. She
then proceeded to ask Mason why he disregarded her November 15th directive not to stand on
tables. Leavitt followed up with a question as to why he was not paying attention in safety
meetings. Mason then asked if Leavitt was investigating him for purposes of firing him. Leavitt
explained that was a possibility.42 Mason denied that Wilson issued such a directive at the

40 It was difficult unraveling the contrasting versions of the meeting, but I ultimately credited
parts of the contrasting versions provided by Wilson and Reed, and that supplied by Mason and
Munn. Accordingly, I found that Wilson showed no more than the 4 photographs in GC Exh. 19–
21, but not the photographs at GC Exhs. 22–32, which portray the KLK, waterblasting and other
tables. I also found that she did use an overhead projector to display the photographs used. Tr.
267, 344–346, 421, 451, 648–649, 819; GC Exhs. 16, 19–21.
41 There is not much disagreement that Wilson addressed the issue of standing on tables at
this safety shop talk, distributed photographs showing employees standing inappropriately on or
around machinery, and that her directive created a dilemma for some employees. Tr. 106–107,
118–122, 131, 245–246, 251–256, 338–343, 343, 374–376, 419–421, 819–821, 867, 871, 882,
1113–1115, 1143–1148, 1177–1178; GC Exhs. 17, p. 10, 18(a)–(q).
42 I did not credit any of the testimony by Wilson, Klepeisz, or Leavitt that Wilson was
concerned about employees not paying attention at the meeting for two reasons. First, the only
logical reason that Klepeisz would tell her to go speak with Leavitt, the Company’s top human
Continued

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November 15 safety shop talk, much less that he disobeyed such a directive. He added,
however, that he did not want to say anything more if he was being investigated and wanted the
opportunity to speak to the Union or other persons. Leavitt responded that it was only a safety
investigation and assured Mason he would have an opportunity to speak with someone. She
warned, however, that Mason could get into “more trouble” if he did not cooperate. Mason then
asked to speak alone with Leavitt and Wilson left.43

After Wilson left the meeting, Mason and Leavitt spoke for about an hour. Mason
insisted that the meeting was precipitated by his union activity, but Leavitt insisted it was about
safety. Mason then explained that he stood on the table because that was how everyone did
their work. He also voiced displeasure with Wilson’s leadership. At the end of the meeting,
Leavitt reiterated that Mason could consult with someone and that they should meet again on or
about November 29.44 After the meeting, which lasted about 3 hours, Mason returned to work.
Shortly after arriving at Department 43, Reed brought Mason a box containing a step-stool.
Mason took out the step-stool and used it.45

As was her custom and practice, Leavitt took handwritten notes of her discussions with
Wilson and Mason on November 23. Those notes, however, were subsequently discarded in
lieu of notes that she typed over the course of the next month and a half. Her notes included
“background information” provided by Wilson. On January 12, Leavitt retyped the notes.46

H. The December 2 Meeting

There was no follow-up meeting on November 29. Instead, Mason met with Leavitt and
Wilson on December 2. Wilson again asked why Mason disobeyed her November 15 safety
shop talk directive not to stand on work tables. Mason denied that Wilson discussed that topic
on November 15 and again insisted that the attention was due to his union activity. Wilson
denied Mason’s allegations and shifted to the notion that she was concerned about his lack of
attention at safety meetings. Mason responded that the safety meetings were not very effective
_________________________
resource official, was to discuss potential disciplinary action against Mason. Tr. 910–912.
Secondly, Wilson also testified that no other employees were in the same situation as Mason.
That was incorrect, as Munn was also on a final warning at the time. Tr. 821–825.
43 I based this finding on Mason’s credible testimony. Tr. 377–382, 444, 587–594. I did not,
however, credit Wilson’s assertion that Mason refused to answer questions and that she was
only present at the meeting for 30 minutes. Wilson’s notes and Leavitt’s testimony indicated
otherwise. Tr. 135–136, 594, 830; GC Exh. 37, p. 3.
44 This finding is based on the fairly consistent testimony of Leavitt and Mason. Tr. 380–
383, 444, 594–595, 913–916, 934-935, 1182, 1190.
45 This finding is based on the testimony of Mason and Wilson. Tr. 142, 389-390.
46 Leavitt’s credibility was essentially destroyed by the scenario that unfolded with her notes.
Leavitt, an obviously capable human resource professional for a large corporation, took notes of
the November 23 meeting. She then proceeded to type them onto a laptop while traveling on an
airplane later that day. The handwritten notes were then, however, left on the airplane. Upon
returning to work on November 29, the typed notes were somehow lost when she attempted to
transfer them to the Respondent’s computer network. Finally, Leavitt then began typing rolling
notes of her interviews. R. Exh. 6. However, these notes, although subpoenaed prior to trial,
were not turned over until the third day of trial. Tr. 947–958. Further from the credibility of the
document, R. Exh. 6 was not created or modified until January 12, 2005. That document post-
dates receipt of the charges in Case 5–CA–32823. Tr. 574–586, 935–938; R. Exh. 6; GC Exh.
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because speakers were hard to understand. He also suggested improvements as to how
speakers could more effectively convey the information at safety meetings. Lastly, Mason
explained that other Department 43 operators were still standing on tables. Wilson agreed that
this was a problem that needed to be resolved.

At some point during the meeting, Mason asked to meet alone with Leavitt, and Wilson
left. Mason then referred to a letter he gave to Klepeisz and Lennon on April 22, in which he
accused Wilson of harassing him after he supported the Union at a Board representation
hearing. Leavitt was not aware of the letter, but asked for a copy, which Mason dropped off a
few days later. Leavitt concluded the meeting by informing Mason they would continue their
discussion on another day.47

I. Mason’s Encounter with Leavitt on December 5

On December 5, Mason went to see Leavitt. However, he encountered her in the
hallway as she was leaving for another meeting. Mason wanted to know what was going on and
she told him that the investigation was continuing. Leavitt also directed Mason not to interfere
with the investigation by discussing it with anyone else. Mason replied, however, that he already
told a couple of his friends about the safety investigation, but would refrain from saying anything
further to anyone. Leavitt concluded the conversation by informing Mason that the investigation
would be completed within a few days to a week.48

J. The Employee Interviews

On December 8, Leavitt informed Mason that the investigation was continuing. She
explained that, given Mason’s remarks on December 2—that no one paid attention at safety
meetings—she and Wilson would randomly select and meet with other employees to determine
what they recalled about the November 15 meeting. Leavitt also warned Mason not to interfere
with the investigation.49

After meeting with Mason, Leavitt conducted employee interviews. She selected 12
persons from an employee overtime list provided by Wilson. Contrary to Leavitt’s remarks to
Mason that the employees would be selected randomly, the names were clearly cherry-picked
by Wilson. Nearly all of the employees chosen for interviews were sympathetic to
management’s position on the Union and Wilson remained in the room while Leavitt interviewed
them.50 During the interviews, Leavitt took notes of employee responses to each question asked
on the questionnaires.51

47 Leavitt, Mason, and Wilson provided fairly consistent testimony regarding this meeting. Tr.
368, 383–394; 595–596, 830–832; GC Exh. 41.
48 Leavitt acknowledged the hallway conversation with Mason, but provided a different
version. I found Mason’s detailed version, however, more convincing. Tr. 394–395, 445–446,
454, 394–395, 567, 601, 975.
49 Wilson confirmed Leavitt’s testimony that she prohibited Mason from interfering with the
investigation. However, Leavitt’s denial, that her statement was meant to prevent Mason from
speaking with other employees, was not convincing, given her statement of December 5 to that
effect. Tr. 568, 600–604, 804, 807, 833–834; GC Exhs. 53–54.
50 Munn credibly testified that, during his interview, Leavitt asked leading questions to get
the answer "they" wanted to hear because Wilson was in the room. Tr. 1152–153.
51 The process undertaken by Leavitt and Wilson was quite suspicious. Tr. 606–609, 638–
639, 835–838, 926–927; GC Exh. 57. First, the questionnaires were not produced, although
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During the interviews, 10 of the 12 interviewees, including Watson, told Leavitt they
previously stood on tables and carts while performing their work. However, Leavitt recorded only
five responses. Leavitt also asked the employees what they would do, as of December 8, if they
had to perform elevated work. Leavitt also asked if they recalled a discussion regarding
standing on tables and carts. There was no indication on the form that asked whether they
recalled such a discussion at the December 15 shop talk or the one given on December 23.
Leavitt's notes indicate that about four employees recalled Wilson’s discussion about standing
on carts with wheels, while Munn told Leavitt that he had no other choice but to stand on tables.
The responses clearly reinforced Mason’s contention that Wilson did not discuss employees
standing on tables until the November 23 safety shop talk.52

The interview process was not evenly conducted. After interviewing the first person,
Leavitt and Wilson eliminated question 2(c), which asked for each employee’s “understanding of
your responsibility for proper lifting, lowering, body posture and utilization of carts and table as a
platform to stand one." In addition, the last question reflected on the questionnaire was not
asked of most of the 12 interviewees because their answers were in response to a different
question: "What would you do if you had a job that was high enough that you needed to get up
to look into it?"53 In addition, Leavitt made several notations on the summary, apparently in
preparation for her subsequent telephone discussion with headquarters personnel. One
indicated that Munn was a water blaster whose work methodology had been evaluated and
approved. Another notation indicated that Dennis also stood on his work table, but that it was a
different type of table.54

After employees were interviewed on December 8, Leavitt, Wilson, and Klepeisz met
and concluded that most employees paid attention during the November 15 safety shop talk.55
_________________________
demanded by subpoena, until the third day of the hearing. R. Exh. 10. Leavitt attributed this
oversight, unconvincingly, to the fact that they had been buried in a desk drawer of a temporary
employee who last worked for the Respondent in March 2006 and had been assigned to the
plant manager. Further detracting from the reliability of the information, Leavitt then created a
summary of the questionnaires on or after January 12. Tr. 611–616. Later she contradicted
herself by suggesting the temporary employee may have created the summary. Tr. 622, 639;
GC Exh. 56, R. Exh. 10. In addition, Leavitt could not recall why she chose the persons she did.
Later, when she learned from Watson, a team leader, that Terry was not at work that day, she
chose Watson to replace her. She did not select Richard White, the other grinder polisher on the
first shift, for an interview. Tr. 607–609, 620–21, 837, 1120–1121.
52 Leavitt testified and Watson confirmed that during the employee interviews, she asked
whether they recalled a discussion about standing on tables and carts. Leavitt's notes indicate
that about four employees recalled Wilson say that employees should not stand on carts with
wheels, and that Munn told Leavitt and Wilson that he had no other choice but to stand on
tables. Tr. 246, 350, 359–360, 375, 419–421, 626–631, 887, 1122, 1147–1149; GC Exhs. 18
and 56, p. 4.
53 As reflected on the selective and inaccurate summary, R. Exh. 10, GC Exh. 56; Tr. 1123.
54 Leavitt contradicted earlier testimony that the temporary employee typed up the summary
from the original questionnaires when she subsequently conceded that she made the notations.
GC Exh. 56, p. 4; Tr. 628–630.
55 Here, again, there was contradictory testimony between Leavitt and Wilson regarding the
investigative and disciplinary process. Leavitt testified that she collaborated with Wilson,
Klepeisz and Sanders regarding the investigatory process leading to discipline. Tr. 633, 895.
This contradicted Wilson’s testimony denying a role in, or knowledge of, the disciplinary process
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On or around that day, Baker, Leavitt and Sanders consulted with human resources and
legal staff from the Respondent’s corporate headquarters in Ohio. At that time, Leavitt was
aware that the trial in Case 5–CA–32642 was scheduled to commence on January 5.56 During
the conference call, Baker opined that Mason should be terminated because he committed a
safety violation while on a final written warning. Leavitt noted, however, that such an action was
inappropriate, given that the rule against standing on tables was new and Mason, at most,
forgot about the rule. She argued for mitigation because employees customarily stood on tables
in the past. Leavitt’s position prevailed and it was determined that Mason would be suspended
without pay for 2 weeks. Upon returning from suspension, Mason would be required to submit a
corrective action plan.57 In fact, no one had ever been disciplined, much less terminated, for a
similar type of safety infraction.58 Prior to that time, the Respondent did not routinely enforce
compliance with safety directives issued in shop talks, even though employees routinely violated
safety directives requiring them to walk only on designated pedestrian walkways and
crosswalks, and limiting smoking to breaktime in designated areas.59

K. The Respondent Disciplines Mason

On December 13, Leavitt informed Mason that he would be disciplined, but not
terminated. That same day, she drafted Mason's discipline, effective January 4, and circulated it
to Wilson and Klepeisz for approval. On or about December 14, Mason again met individually
with Leavitt. Leavitt told Mason that she met with 12 employees who attended the same safety
meetings and all but one recalled a discussion about standing on tables and carts. Leavitt again
advised Mason that he would be disciplined, but not fired. Mason responded that he and Wilson
still had issues, and requested mediation. Leavitt did not agree to that request, but told Mason
that she was trying to implement some new programs. 60

On December 15, Mason was summoned to a meeting with Wilson and Batliner. Mason
was given a copy of a final written warning signed by Klepeisz, Wilson, and Batliner. The
discipline provided for an unpaid 2-week suspension and required Mason to submit a personal
safety improvement plan prior to his return. Mason disagreed with the warning, but
acknowledged receipt of it and complained about the illegality of Leavitt’s December 5
statement prohibiting him from speaking to anyone about the investigation.61 The warning,
issued by Wilson, stated in pertinent part:
_________________________
after December 8. Tr. 839.
56 Leavitt conceded this fact. Tr. 1011.
57 Baker’s testimony regarding the telephone conversation, which appears to have taken
place after the employee interviews, was quite vague. However, it seems clear that he deferred
to Leavitt’s advice that there was no justification for terminating Mason. Tr. 110, 400, 1018-
1020, 1084-1085, 1130–1137.
58 The Respondent’s reliance on the discipline of Ernie Williams for a lockout/tag-out
violation and Yvette Coles for stopping work, climbing on a table, and singing and dancing, is
unfounded. Unlike Mason’s alleged inadvertence–per Leavitt–Williams was terminated for
willfully failing to follow proper procedure, while Coles’ indiscretion involved deliberate
horseplay. Tr. 1074–1078; R. Exhs. 14–15.
59 Wilson testified that employees, other than Mason, did not ignore safety directives. Tr.
145, 854. However, she failed to refute credible testimony by Mason, Morris, among others, that
the walkway pedestrian rule was routinely violated without disciplinary action being taken. Tr.
156–157, 258–263, 536–539, 545–548; GC Exh. 47, pp. 1–2.
60 Tr. 396, 713, 731–32, GC Exh. 58.
61 Tr. 380, 392, 399–400, 831, 872, 893, 1134–35; GC Exh. 34, pp. 1–2.

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On November 15th, you were working on a J/N 35153 while standing on the KLK table
with your body in awkward position. This act was done following a safety meeting on
"Safe Lifting Techniques" in which the subjects of body posturing and the expectation of
not standing on carts or tables was given.

Billy, it is imperative that you understand this action is considered a serious violation.
HRG-301 states that an employee is expected to act in a manner that" . . . is consistent
with the safe, conscientious performance of their job duties." Furthermore, The Alcoa
Guide to Business Conduct clearly sets the expectation that "We are accountable
individually and in teams—for our behaviors, actions and results." The safety meeting
conducted on November 10th, "Expect Employee Accountability" set expectations that
you would assume responsibility for yourself and others, make proper safety decisions,
change behaviors to make safety come first and that you would expect to be held
accountable for your actions. In a follow-up meeting November 15th regarding Safe
Lifting Techniques, several examples were used setting examples of proper lifting, body
positioning and not standing on cards in tables. You admitted that you were not paying
attention in the safety meetings. Billy, it is your responsibility to pay attention in safety
meetings and fully understand the expectations of you when you leave those meetings.

As an employee at Howmet Castings, you are expected to follow leadership's guidance
and expectations on safety and work performance. In an effort to maintain a professional
work environment, all employees are expected to conduct themselves and professional
manner.

To help you be successful in your career at Howmet Castings, you are expected to fill
the following:

• Participate in and incorporate the safety initiatives into your everyday work and
highlight any safety concerns to Leadership.
• Meet with leadership after any meeting where you do not understand your expectations
• Follow leadership direction
• Follow all Alcoa and Howmet policies and procedures
• Provide a written improvement plan outlining specific actions you will take to correct
your behavior.
• The acceptability of this plan in your ability to follow it and significantly improve
your overall behavior would be critical in your success here at Howmet Castings.
• The plan is due back to me by January 17th, 2006.

As part of this disciplinary action, starting January 4rd [sic], 2006, you will be put on a
two-week unpaid leave of absence. You will return to work on January 18, 2006. At that
time, you will begin an additional 18 month period of a Final Written Warning.

If you need help in completing your corrective action plan, please feel free to contact
Debbie Batliner at 825-6962 for assistance.

The future of your employment with Howmet Castings is your choice. It is vital the take
immediate action to correct your behavior. Failure to do so could lead to further
disciplinary.

Wilson’s memorandum had several attachments, including HR Policy 301, “Conduct in
Discipline,” and a December 14 memorandum from Wilson to Mason, and a document entitled,

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"Willful Safety Violation Investigation Results." The file indicated that Mason's November 15th
infraction willfully violated the Respondent’s Environmental Health and Safety (EHS) rules
because it was a situation where an “employee either creates or is knowledgeable of the
hazardous condition, knows that the condition violates an EHS Policy, and makes no
reasonable effort to eliminate the unsafe act or condition by notifying supervision."62 The
memorandum omitted, however, any mention of Mason’s January 2004 safety violation.63

L. Mason’s Filing of Charges in Case 5–CA–32823

On December 15, after receiving the disciplinary notice, Mason contacted the Union. On
December 20, the Union filed the initial unfair labor practice charge in Case 5–CA–32823.
Mason was already scheduled to testify on January 5 at the unfair labor practice hearing in
Case 5–CA–32642. As a result of the new charges, that trial was postponed.

After serving his suspension from January 4 to January 17, Mason returned to work on
January 18 with a written safety improvement plan. He met with Moorman, Klepeisz, and
Wilson. Klepeisz reviewed Mason's proposed plan and rejected it because it did not include a
statement that Mason would no longer stand on tables. Moorman resolved the situation by
retyping the plan to incorporate Klepeisz’ comment.

After Mason returned from suspension, Mason learned from White and Thurman Cross,
the other Department 43 grinder/polishers who also operate the KLK machine, that they had not
been trained to refrain from standing on the KLK table and still knew nothing about that.64 In
fact, it was not February 17, 2006 that the Respondent provided an appropriate rolling ladder for
use by the water blasters.65

62 GC Exh. 34, p. 1; GC Exhs. 58, 1(c); R. Exh. 1(a).
63 I did not credit Leavitt’s assertion that this prior warning, which was stale and omitted from
reference in the memorandum, was a factor in her consideration to discipline Mason. R. Exh.
12; Tr. 1016. Even though EHS policy permitted consideration of stale disciplines in instances of
willful violations, Leavitt, during the conference call with headquarters personnel, clearly
adopted Mason’s assertion that he simply “forgot” the rule. Tr. 1135; R. Exh. 2, sec. I(A)(4).
64 Based on Mason’s credible and unrefuted testimony. Tr. 371, 401-405; GC Exhs. 1(l), 34
(p.2), 35 and 36.
65 Based on credible and unrefuted testimony by Mason, Morris and Munn. Tr. 229–240,
255–256, 325–326, 330–332, 471–474, 744, 1150; GC Exhs. 42–43.

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III. Legal Analysis

A. The 8(a)(1) Charges

1. Klepeisz’ statements

The General Counsel alleges that the Respondent violated Section 8(a)(1) when
Klepeisz interrogated Mason about his union activities on June 8 and again on June 9 when he
told Mason that he was going to destroy the company because of his union activities. The
Respondent concedes that Klepeisz spoke to Mason on both days, but asserts that the June 8
discussion was initiated by Mason as Klepeisz passed his work area, and denies stating in the
June 9 conversation that Mason would destroy the company.

It is an 8(a)(1) violation for an employer to engage in conduct which reasonably tend to
interfere with, threaten, or coerce employees in the exercise of their Section 7 rights to self-
organization, to form, join, or assist a labor organization. Alliance Steel Products, 340 NLRB 495
(2003); Philips Petroleum Co., 339 NLRB 916 (2003); Gissel Packing Co., 395 U.S. 575 (1969);
Almet, Inc., 305 NLRB 626 (1991); and American Freightways Co., 124 NLRB 146, 147 (1959).
In making this determination, the employer’s motive for the inquiry, or the success or failure of
the coercion, is irrelevant. American Tissue Corp., 336 NLRB 435, 441 (2001).

On June 8, Klepeisz approached Mason at his work area and asked what was going on,
since the Union’s supporters lost the election. This was 2 days after Mason distributed union
literature outside the facility’s entrance area and 1 day after Baker issued a written response to
employees. Klepeisz’ inquiry reasonably tended to convey to Mason the notion that
management disagreed and was not pleased with his continued advocacy for a union. On June
9, the day of the Respondent’s picnic, Klepeisz saw Mason wearing a prounion T-shirt and
expressed his disgust by proclaiming that Mason was going to destroy the company. Under the
circumstances, Klepeisz’ statements constituted unlawful interrogation and threats in violation of
Section 8(a)(1). NLRB v. Exchange Parts Co., 375 U.S. 405 (1964); Palms Hotel and Casino,
344 NLRB No. 159, slip op. at 24 (2005).

2. The Respondent’s statements regulating the distribution of union literature

The General Counsel alleges that the Respondent violated Section 8(a)(1) when security
guard Stewart orally promulgated an overly broad restriction on the distribution of union
literature by telling employees on June 14 that they could not distribute union literature in
nonwork areas, and again later that day when Klepeisz told Mason that he could distribute union
literature in nonwork areas only, but only if it did not cause a disturbance. The Respondent
admits that Baker instructed Stewart to stop handbilling on its property. It contends, however,
that the restriction was de minimus as Baker realized the mistake shortly thereafter, instructed
Klepeisz to rectify the matter, and Klepeisz did so by informing Mason that he could distribute
literature in nonwork areas, during employees’ nonwork times and in a nonthreatening manner
without impeding employee access to and from the facility.

The prohibition against literature distribution in a nonworking area outside an employer’s
facility constitutes an unlawful restriction under Section 8(a)(1). Meijer, Inc., 344 NLRB No. 115,
slip op. at 3 (2005), citing National Steel Corp., 173 NLRB 401 (1968), enfd. 415 F.2d 1231 (6th
Cir. 1969). Applying the appropriate standard, security guard Stewart’s directive to Mason, Hill
and Miles that they stop distributing union literature interfered with their exercise of protected
activity was unlawful. They were on nonwork time, in a nonwork area, and there was no
evidence that they engaged in disruptive conduct. Moreover, Klepeisz’ statement to Mason in

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the latter’s work area later that morning failed to effectively repudiate or disavow Stewart’s
unlawful directive and provide Mason with reassurance that in the future the Respondent would
not interfere with his exercise of Section 7 rights. Klepeisz did not tell Mason that Stewart’s
directive was a mistake and that literature distribution was permissible. Instead, Klepeisz
informed Mason that he could only distribute union literature if he did not create a disturbance.
As such, Klepeisz’ statement would reasonably be perceived by Mason as an indication that
management continued to view the distribution of union literature as inherently negative
behavior. Klepeisz’ comments were far from reassuring Mason that the Respondent would not
interfere in the future with his literature distribution. Fashion Fair, Inc., 159 NLRB 1435, 1444
(1966); Harrah’s Club, 150 NLRB 1702, 1717 (1965). In any event, Klepeisz did not tell Mason
to pass along his comments to either Hill or Miles. Under the circumstances, the Respondent’s
restriction of literature distribution in nonworking areas on nonworking time violated Section
8(a)(1).

3. Leavitt’s prohibition against Mason’s discussion of the
Respondent’s investigation

The General Counsel alleges that the Respondent violated Section 8(a)(1) when Leavitt
told Mason on December 5 that he could be in trouble if he told anyone about the safety
investigation. The Respondent denies the charge and asserts that Leavitt merely advised
Mason, in response to his inquiry as to what to do if someone approached him about the
investigation, that he should “be honest and to not interfere with the investigation.

Employees have a Section 7 right to discuss disciplinary investigations with other
employees and an employer may not quash that right in the absence of a substantial and
legitimate business justification. SNE Enterprises, Inc., 347 No. 43, slip op. at 32 (2006), citing
Caesar’s Palace, 336 NLRB 271, 272 (2001). To unjustifiably suppress employee
communication regarding a discipline or disciplinary investigation would restrict employees from
obtaining information from coworkers which might be used in their defense. Mobil Oil
Exploration & Producing, U.S., 325 NLRB 176, 178–179 (1997), enfd. 200 F.3d 230 (5th Cir.
1999).

The Respondent did not proffer a substantial business justification for Leavitt’s directive
that he refrain from discussing the safety investigation with anyone else. At the time the
communication was conveyed, it was reasonably evident to Mason that he faced possible
discipline. As such, the directive interfered with his Section 7 right to obtain relevant information
from other employees and otherwise engage in mutual aid and protection. Jeannette Corp. v.
NLRB, 532 F.2d 916 (3d Cir. 1976).

B. The 8(a)(3) and (4) Charges

The General Counsel alleges that the Respondent violated Section 8(a)(3) by issuing a
disciplinary warning and suspension to Mason on December 15 because he engaged in
activities supporting the Union. The General Counsel also contends that the Respondent
violated Section 8(a)(4) by taking such action in retaliation for Mason’s testimony supporting the
Union at a preelection representation hearing in Case 5–RC–15855 and in advance of Mason’s
likely testimony in a unfair labor practice hearing in Case 5–CA–32642. The Respondent denied
the material allegations and contends that the discipline was imposed in accordance with the
Respondent’s safety and disciplinary policies.

Section 8(a)(3) provides, in pertinent part, that it is “an unfair labor practice for an
employer to discriminate in regard to hire or tenure of employment or any term or condition of

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employment to encourage or discourage membership in any labor organization.” Section
8(a)(4) of the Act provides that it is an unfair labor practice for an employer “to discharge or
otherwise discriminate against an employee because he has filed charges or given testimony
under this Act.”

To prove a violation of either Section 8(a)(3) or (4), the General Counsel must first show,
by a preponderance of the evidence, that the employee’s protected conduct was a substantial or
motivating factor in the employer’s adverse action. Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The General Counsel must
establish the employee engaged in protected concerted activity, the employer was aware of that
activity, and the activity was a substantial or motivating reason for the employer’s action. Naomi
Knitting Plant, 328 NLRB 1279, 1281 (1999). Proof of an employer’s motive may be based on
circumstantial evidence, such as the employer’s contemporaneous commission of other unfair
labor practices. Waste Management of Arizona, Inc., 345 NLRB No. 114 (2005); Robert
Orr/Sysco Food Services, 343 NLRB 1183 (2004). The Board has long held that, where adverse
action occurs shortly after an employee has engaged in protected activity, an inference of
unlawful motive is raised. See Postal Service, 345 NLRB No. 26, slip op. at 14 (2005), citing
McClendon Electrical Services, 340 NLRB 613, at fn. 6 (2003). The burden of persuasion then
shifts to the employer to “demonstrate that the same action would have taken place even in the
absence of the protected conduct.” Septix Waste, Inc. 346 NLRB No. 50 (2006). Simply
presenting a legitimate reason for its actions is not enough. Donaldson Bros. Ready Mix, Inc.,
341 NLRB 958, 966 (2004); T&J Trucking Co., 316 NLRB 771, 771 (1995); GSX Corp. v. NLRB,
918 F.2d 1351 (8th Cir. 1990).

Most of the Wright Line factors are not in dispute. Mason engaged in protected
concerted activity. He circulated union flyers to employees and wore union paraphernalia to
work. Mason testified on behalf of the Union at the representation election hearing. Baker and
Klepeisz were well aware of Mason’s activities. Klepeisz had numerous conversations with
Mason at his work station prior to the representation election and several more thereafter in
relation to Mason’s continued advocacy for the Union. He also expressed disgust with Mason’s
prounion T-shirt on the day of the Respondent’s “Reconciliation” picnic. Klepeisz and Baker
were handed flyers by Mason. Furthermore, both Klepeisz and Baker were present when Mason
testified at the representation hearing. The Respondent took adverse action against Mason by
suspending him without pay for 2 weeks. The parties dispute, however, whether such
disciplinary action was motivated by the Respondent’s union animus.

Statements by Wilson after Mason testified in the representation hearing, by Baker on
June 7, by Klepeisz on June 8 and 9, and by Baker and Klepeisz on June 14, provide strong
evidence of the Respondent’s motivation to stifle Mason’s organizational activity. Against this
backdrop of violations evidencing union animus ensued a flimsy investigation regarding Mason’s
performance of a common practice—standing on work tables—on November 15. The timing of
the Respondent’s decision to suspend Mason on December 15, but effective on January 4—just
1 day before the commencement of a scheduled Board proceeding in Case 5–CA–32642—
establishes a clear case of discriminatory motivation. Hewlett Packard Co., 341 NLRB 492, 498
(2004); Tabular Corp. of America, 337 NLRB 99 (2001); Electronic Data Systems Corp., 305
NLRB 219 (1991); Abbey’s Transportation Services, 284 NLRB 698, 701 (1987), enfd. 837 F.2d
575 (2d Cir. 1988); Price’s Pic-Pac Supermarkets, 707 F.2d 236, 240 (6th Cir. 1983).

Since the General Counsel established a prima facie case, the burden of persuasion
shifted to the Respondent to prove, by a preponderance of the evidence, that it would have
suspended Mason even in the absence of his union activity. Monroe Mfg., 323 NLRB 24 (1997).
To meet its burden of persuasion, the Respondent was required to do more than show that it

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had a legitimate reason for its actions. Hicks Oil & Hicksgas, 293 NLRB 84, 85 (1989), enfd. 942
F.2d 1140 (7th Cir. 1991).

The preponderance of the evidence shows that Wilson’s interaction with Mason on
November 15, was, at most, instructional, as she did not fill out the requisite disciplinary report
at or around that time as required by the Respondent’s policies. In fact, until she went to another
department to get him a step stool, Mason was unable to perform his job without standing on
the table. Their discussion followed a safety shop talk that focused on proper posture, bending
and lifting. The fact that Wilson had to follow up with a specific safety shop talk on November 23
dealing with standing on tables indicates that the November 15 safety shop talk did not focus on
that subject. Moreover, Wilson interacted in a similar way with two water blasters, Mote and
Scott, but did not seek to discipline them. The alleged difference in treatment—Mason’s failure
to pay attention at the November 15 shop talk, was clearly pretextual, as there was no mention
of it in the December 15 letter suspending him.

In addition to the overwhelming evidence that Mason’s performance on November 15 did
not deviate from the Respondent’s custom and practice, the evidence demonstrates that
Mason’s alleged failure to pay attention at the November 15 safety shop talk would hardly be
worthy of the Respondent’s enforcement. Failures to comply with safety directives delineating
walking and smoking areas, as well as standing on equipment—even as late as January—were
emblematic of a system that seemed to focus on the more imminent types of safety violations.

Based on the foregoing, I find that the Respondent failed to meet its burden of proving
that Mason would have been disciplined even in the absence of his advocacy for the Union. The
reasons asserted by the Respondent were not relied on and were a pretext for its real reason—
punishing Mason for engaging in protected concerted activity and discouraging him from
testifying against the Respondent at the scheduled Board proceeding on January 5.

Conclusions of Law

1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.

2. By interrogating William Mason because he engaged in concerted protected activity
by distributing literature and wearing clothing promoting membership in the United Steelworkers
of America, District 8, AFL–CIO, CLC; by telling Mason that he was going to destroy the
company because of his prounion activities; by telling Mason, Hill, and Miles to stop distributing
prounion literature during nonwork time and in a nonwork area outside its facility; and by telling
Mason not to discuss its disciplinary investigation of his conduct with anyone else, the
Respondent has engaged in unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.

3. By suspending Mason for 2 weeks without pay because he engaged in protected
concerted activity by distributing prounion literature and wearing union paraphernalia, the
Respondent violated Section 8(a)(3) and (1).

4. By suspending Mason for 2 weeks without pay because he testified in support of the
Union at the representation election hearing, then filed the aforementioned Section 8(a)(1)
charges against the Respondent and was a likely witness at the trial, initially scheduled for
January 5, the Respondent violated Section 8(a)(4) and (1).

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5. By engaging in the conduct described above, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Section 2(2), (6) and (7) of the Act.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

Having discriminatorily suspended an employee, the Respondent must remove any
reference from its files to such disciplinary action and make him whole for any loss of earnings
and other benefits, computed on a quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended66

ORDER

The Respondent, Howmet Castings & Services, Inc., Hampton, Virginia, its officers,
agents, successors, and assigns, shall

1. Cease and desist from

(a) Disciplining or otherwise discriminating against any employee for supporting the
United Steelworkers of America, District 8, AFL–CIO, CLC or any other union.

(b) Coercively interrogating any employee about supporting membership in a union.

(c) Telling employees that their support for or membership in a union will destroy the
company.

(d) Prohibiting employees from distributing prounion literature during nonwork time and
in nonwork areas.

(e) Prohibiting employees from seeking advice from someone else concerning
disciplinary investigations into their conduct.

(f) In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

66 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.

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(a) Make William Mason whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him in the manner set forth in the remedy section of the
decision.

(b) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful suspension, and within 3 days thereafter notify the employee in writing
that this has been done and that the suspension will not be used against him in any way.

(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.

(d) Within 14 days after service by the Region, post at its facility in Hampton, Virginia,
copies of the attached notice marked “Appendix.”67 Copies of the notice, on forms provided by
the Regional Director for Region 5, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
June 8, 2005.

(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, D.C., December 29, 2006

_______________________
Michael A. Rosas
Administrative Law Judge

67 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.”
JD–89–06

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 violated Federal labor law and has
ordered us to post and obey this Notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT discharge, suspend or otherwise discriminate against any of you for supporting
the United Steelworkers of America, District 8, AFL–CIO, CLC or any other union.

WE WILL NOT coercively question you about your union support or activities.

WE WILL NOT tell you that your support for or membership in a union will destroy our company.

WE WILL NOT prohibit you from distributing literature promoting or opposing union membership
during nonwork time and in nonwork areas.

WE WILL NOT prohibit you from seeking advice from someone else concerning a disciplinary
investigation into your conduct.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL make William Mason whole for any loss of earnings and other benefits resulting from
his suspension, less any net interim earnings, plus interest.

WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful suspension of William Mason, and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the suspension will not be used against him in any way.

HOWMET CASTINGS & SERVICES, INC.
(Employer)

Dated By
(Representative) (Title)

JD–89–06

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
103 South Gay Street, The Appraisers Store Building, 8th Floor
Baltimore, MD 21202-4061
Hours: 8:15 a.m. to 4:45 p.m.
410-962-2822.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 410-962-3113.