J.I.T. Steel

National Labor Relations Board - Board Decisions

Jan 8, 2001

332 N.L.R.B. 1621 (N.L.R.B. 2001)

J.I.T. STEEL, INC. 1621
J.I.T. Steel, Inc., and United Steelworkers of America,
AFL–CIO. Case 32–CA–17346
January 8, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On September 11, 2000, Administrative Law Judge
Jay R. Pollack issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the
General Counsel filed limited exceptions and a brief in
support of its exceptions and in answer to the Respon-
dent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 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, J.I.T. Steel, Inc., Tulare,
California, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.

Charles H. Pernal Jr., for the General Counsel.
James W. Michalski (Riordan & McKinzie), of Los Angeles,
California, for the Respondent.
Jerry Mongello, Staff Representative (United Steel Workers of
America), of Covina, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Clovis, California, on October 19–22, 1999. On
March 30, 1999, United Steelworkers of America, AFL–CIO
(the Union) filed the original charge alleging that J.I.T. Steel,
Inc. (Respondent) committed certain violations of Section
8(a)(1) and (3) of the National Labor Relations Act (the Act).
On June 29, 1999, the Regional Director for Region 32 of the
National Labor Relations Board issued a complaint and notice
of hearing against Respondent alleging that Respondent vio-
lated Section 8(a)(1) and (3) of the Act. Respondent filed a
timely answer to the complaint denying all wrongdoing.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, from my
observation of the demeanor of the witnesses1 and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d. Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent is a California corporation with an office and
place of business in Tulare, California, where it has been en-
gaged in the business of cutting steel coil to size for its nonre-
tail customers. During the 12 months prior to issuance of the
complaint, Respondent purchased and received goods and ser-
vices valued in excess of $50,000 from suppliers located out-
side the State of California. Respondent admits and I find that
Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
Respondent admits and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The complaint alleges that Respondent violated Section
8(a)(1) and (3) of the Act by issuing a written warning to Rudy
Ramirez on March 12, 1999, issuing a written warning and a 3-
day suspension to Danny Romero on March 12, 1999, and issu-
ing a final warning notice to Danny Romero on April 8, 1999,
because of their union and protected concerted activities. The
complaint further alleges that Respondent independently vio-
lated Section 8(a)(1) of the Act by engaging in surveillance of
employees’ union activities, by threatening that it would close
its business if employees selected the Union as their bargaining
representative; by discriminatorily implementing and enforcing
a no-talking rule, by implementing stricter lunch and break
schedules in response to employees’ union activities; and by
maintaining an unlawful rule concerning solicitation in the
employee handbook.
B. The Facts
In January 1999, certain of Respondent’s employees met with
representatives of Teamsters Local 517 in Visalia, California.
Representatives of Local 517 informed the employees that Local
517 could not represent the employees. Thereafter the employees
set up a meeting with another teamsters local in Tulare, Califor-
nia. Employees Rudy Ramirez, Danny Romero, Jose Hernandez,
David Ortega, Gilbert Hernandez, and Supervisor Sergio Lo-
scano attended this meeting. The Teamsters’ representative wore
a black and gold jacket with a teamsters’ logo on the back. Dur-
ing the meeting, which was held at a pizza restaurant, Supervisor
Eric Ballesteros entered the restaurant with his family. Balles-
teros walked right by the table where the union meeting was
being held.
1 The credibility resolutions herein have been derived from a review
of the entire testimonial record and exhibits, with due regard for the
logic of probability, the demeanor of the witnesses, and the teachings of
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those wit-
nesses testifying in contradiction to the findings, their testimony has been
discredited, either as having been in conflict with credited documentary or
testimonial evidence or because it was in and of itself incredible and
unworthy of belief.
332 NLRB No. 167
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1622
Shortly after the meeting at the pizza restaurant, Supervisor
Loscano told Ramirez that Loscano could no longer be part of the
unionization drive. Loscano said that Production Manager Rui
Godinho had told Loscano, “I can understand [Ramirez] and
[Romero] but not you, Sergio, because you could just (sic) be-
come a supervisor and you’re not eligible to vote anyway.”
After contacting the Teamsters, Ramirez contacted the Union.
Ramirez attended a meeting with Al Madrigal, a staff representa-
tive of the Union. Also attending this meeting were Romero,
George Rocha, and Jose Herrera. At a meeting with Madrigal, on
February 12, Ramirez and Romero signed union authorization
cards. In addition, they agreed to take blank cards in order to
solicit the signatures of fellow employees.
Ramirez distributed union authorization cards, talked to em-
ployees about the Union at work and notified employees of union
meetings. Romero also engaged in these activities. On March 8,
Ramirez observed union officials distributing flyers in the Re-
spondent’s parking lot. Ramirez joined these union officials for
about 5 minutes. Phillip Hill, Respondent’s plant manager, Rui
Godenho, Production Manager, and two other managers observed
Ramirez on this occasion. Romero joined the union officials for
a few minutes while they were handbilling at the Respondent’s
premises. Godenho observed Romero with the union personnel.
The Union filed its representation petition on March 30, 1999.
Respondent admits that it knew of employee union activity prior
to the filing of the petition. A representation hearing was held on
April 14. Ramirez attended the hearing as a witness for the Un-
ion. The representation election was held on May 18, 1999. The
employees voted against representation by the Union. The Un-
ion did not file timely objections to the election. During the elec-
tion period Respondent campaigned heavily against the Union.
At all material times, Respondent has maintained a rule in its
employee handbook stating, “Solicitation in working areas is not
permitted at any time . . . .” On February 26, Respondent distrib-
uted a memorandum to employees reiterating the no-solicitation
policy. Notwithstanding this rule, Respondent permitted the sale
and purchase of candy for various fundraisers.
The General Counsel contends that on February 24 and 25 and
on March 9 and March 11, Respondent engaged in surveillance
of its employees’ union activities. On February 24, Patrick
Fisler, a slitter operator/helper, was in the receiving office talking
to Ramirez about selling his computer to Ramirez. Supervisor
Godenho entered the office and asked Fisler what he was doing
there. Ramirez worked in this office but Fisler worked in the
production area of the facility. Fisler explained that he was try-
ing to sell Ramirez a computer. Thereafter, Godenho told Fisler
that Fisler was expected to stay at his work station. Fisler was
not on break at the time of his conversation with Ramirez. Evi-
dently, Godheno reported this conversation to Dan Underwood,
warehouse manager and supervisor of Ramirez and Romero.
On February 25, Ramirez, employee Frank Mariano and Ro-
mero were engaged in a conversation in the receiving office
when Underwood walked in. Neither Mariano or Romero
worked in the receiving office. Mariano had been in the office to
repair Ramirez’ computer or printer. Mariano left the office and
then Romero followed. Underwood went to Mariano’s office
and asked what Mariano was doing in the office. Mariano an-
swered that he was fixing Ramirez’ computer. Underwood asked
what they were really talking about. Mariano answered that he
was fixing a problem with the computer.
Underwood testified that he could see through the window that
Romero, Ramirez, and Mariano were having a conversation. It
looked to Underwood that the three employees were taking a
break. Underwood told the employees that even though work
was slow, they were to try and keep busy. According to Under-
wood, after Romero and Mariano left, he spoke to Ramirez about
wasting company time. Ramirez admitted that he was engaged in
a personal conversation and that he needed to stay busy. Under-
wood asked Ramirez about the prior day when Godenho had
found Fisler away from his work area and spending time in the
receiving office.
On March 9, Underwood observed Romero at the break table
after Romero’s lunchbreak would normally be over. Underwood
checked the timeclock and found out that Romero had clocked in
from lunch but was still at the break table instead of returning to
work. Romero’s timecard for March 9 reveals that he began his
lunch prior to noon. Thus, when Romero was still on break after
12:30 he had taken more than a half-hour for lunch even though
he had already clocked back in. On March 11, Underwood ob-
served Romero and Ramirez at the break tables after 12:30. They
had already clocked in from lunch but had not yet returned to
work. While the General Counsel contends that Underwood was
engaged in surveillance on March 9 and 11, there is no evidence
to support that allegation. However, the question of not returning
to work after their lunchbreaks was included in the warnings
given Romero and Ramirez on March 12.
On March 15, Underwood met with the receiving clerks and
crane operators that he supervised, including Ramirez, a receiv-
ing clerk and Romero, a crane operator. Underwood handed out
a printed break schedule for the daytime and swing shifts. The
General Counsel contends that the issuance of this schedule was
designed to limit the union activities of Ramirez and Romero.
Respondent contends that this policy was not new and that Re-
spondent simply reduced to writing the existing policy because
some employees were abusing their lunch periods.
Prior to issuance of the memorandum, Ramirez had taken his
morning break at 9 a.m. rather than at 8, his lunch at noon rather
than at 10 or 10:30 a.m., and had forgone his afternoon break.
Ramirez took his lunchbreaks with crane operators including
Romero. He stated that by taking a later lunch, he did not have to
wait to use the microwave ovens. Ramirez stated that the crane
operators loaded production machines while the production em-
ployees were at lunch and then took their lunch later. Under
Respondent’s schedule the lunchbreaks were staggered. Further,
under Respondent’s scheduled employee lunchbreaks were
scheduled within the 5-hour requirement of state law.
In addition to Underwood’s testimony that the printed break
schedule did not change the preexisting policy, Respondent of-
fered the testimony of several employee witnesses who testified
that the schedule was not a change. I credit the testimony that the
memorandum of March 15 merely set forth the preexisting
schedule for breaks.
Employee Thomas Styles testified that in March, he had a
conversation with Underwood. Styles testified that Underwood
“may have” stated something to the effect that unions were not
good. Styles also testified that Underwood said “something to
J.I.T. STEEL, INC. 1623
the effect” that Underwood could go get a job within a week but
that it would take employees a long time to find a job. Although
the General Counsel alleges that this amounts to a threat, I cannot
make any factual findings based on such vague testimony.
Employee Danny Marquez testified that prior to the election
Godenho stated in the presence of Ballesteros that it would be
simple for the Respondent to close the facility and hire new em-
ployees under a different name.
During April, Romero had a conversation with Supervisor Eric
Ballesteros. Romero accused Ballesteros of pressuring employ-
ees to vote against the Union. Ballesteros denied doing so. Ro-
mero then accused Ballesteros of getting an employee named
Larry in trouble. Ballesteros denied doing so. Ballesteros asked
if this was why Romero had stopped talking to him and Romero
answered affirmatively. Ballesteros then said “the Union is no
good for J.I.T., they’ll close this place down and so on.” Romero
answered that the business was growing and would not close
down. He said that in his opinion employees had nothing to lose
and everything to gain. The above findings are based on the
credited testimony of Romero. Ballesteros denials are discred-
ited. I found Ballesteros to be an untrustworthy witness and do
not credit any of his testimony.
Rudy Ramirez has been a receiving clerk for Respondent for 3
years. On March 12, Ramirez was called into Hill’s office to
speak with Hill and Underwood. According to Ramirez, Hill
stated that they were “doing it this way because of what is hap-
pening right now,” presumably a reference to the union organiz-
ing. Underwood then read from a written warning. The warning
stated in pertinent part:

On 1/25/99 Rudy failed to double check the Material received
against PO #6996766, in order to make sure that it matches
what we ordered. The material was entered in as SSGR33,
when it was actually A653–96 CS. . . . In addition, I spoke
with Rudy and two other employees about wasting company
time on 2/25/99, after observing them talking in the receiving
office . . . . On 3/9/99, I observed Rudy at the break tables, it
was after 12/30 so I checked the time clock and then went to
the mailroom to check and see if Rudy was still on break. I
found that Rudy had punched in from break two minutes
prior. I walked back to the break area to talk to Rudy, but
when I got there, he was already walking back to go to work.

Ramirez argued that he shouldn’t be written up for entering the
wrong grade of steel because the grade had been entered by the
purchasing department. Underwood said that Ramirez should
have double-checked the grade. Ramirez argued that there
would be a discrepancy because supplier grades do not match
the Respondent’s grades. Underwood insisted that along with
checking the quantity of material, Ramirez was required to
check the grade of the material received. Ramirez insisted that
if he was receiving a warning, so should the accounting, pur-
chasing and shipping departments.
Ramirez said that he clocked in early from lunch but did not
exceed the 30 minutes permitted for lunch. Ramirez said that he
had been doing this for a long time and it had never been brought
to his attention. He further argued that half of the employees
followed the same practice. Hill replied that the written warning
was because of the receiving error and not for clocking in. Rami-
rez said that Mariano was in the receiving office fixing the com-
puter or printer and that Romero was doing some receiving du-
ties.
The evidence shows that Respondent had ordered structural
steel for its customer but received commercial steel, a lower
grade of steel. Respondent’s customer received the incorrect
shipment in January. On or about March 10, the customer dis-
covered the mistake. Underwood learned of this mistake on
March 11 from Sales Manager Ted Dohse. Both Ramirez and
Walter Albright, another receiving clerk, incorrectly received the
commercial steel as structural steel. Albright also received a
warning for this incident. Under Respondent’s progressive disci-
pline system,2 Ramirez received a written warning and Albright
received a verbal warning. Albright received a verbal warning
because this was his first offense under the progressive discipline
system. Ramirez received a written warning because he had a
prior warning.
Although the General Counsel seeks to downplay this mistake,
it is clear that a receiving clerk’s job is to ensure that the material
received and the accompanying documents from the steel mill
match the specifications on the purchase order. In 1997, Ramirez
received a warning for entering the wrong type of material into
the system. In this instance, both Ramirez and Albright received
the material as structural steel when, in fact, it was only commer-
cial steel. The fact that the error was discovered without any
harm to Respondent or the customer, does not require Respon-
dent to excuse the mistake.
Also on March 12, Hill and Underwood delivered a written
warning to Danny Romero. Under Respondent’s disciplinary
system, Romero received a 3-day suspension with his warning.
Romero was warned for attendance problems and “wasting com-
pany time.” The warning form stated:

On 2/2, Danny called in sick and wanted to use a vacation day
because he had already used his two sick days for the year. I
let Danny take a sick day. . . . On 2/8/99, I called Danny in
and talked to him about his attendance, I showed Danny
where he had been late three times in the prior four weeks. . . .
On 2/25/99, I spoke with Danny and two other employees
about wasting company time, after observing them talking in
the receiving office . . . on 3/9/99, I observed Danny out at the
break tables, it was after 12:30 so I checked the time clock. . .
I found that Danny had already punched in from break 2 min-
utes prior. I walked to the break area . . . but when I got there
he was already walking back to go to work . . . .On 3/11, I ob-
served Danny at the break tables again well after 12:30 . . . I
found that Danny had clocked out 7 minutes prior.

Romero questioned why he was being written up for a vaca-
tion day 1 month after he had taken it. With respect to atten-
dance, Underwood showed Romero a computer print out show-
ing tardiness and absences. Romero admitted that his attendance
should improve. Prior to the warning and suspension of March
12, Romero had received two warnings for attendance problems

2 Respondent’s discipline system is a four-step process: verbal warn-
ing, written warning, suspension and termination. Even though the first
step is called a “verbal warning,” there is a written document which
reflects it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1624
and two negative job evaluations. With respect to clocking in
after lunch, Romero argued that he had a half-hour for lunch.
Underwood said that once Romero had clocked in he was re-
quired to work even if he had taken a shorter lunch period. Un-
derwood argued that once an employee had clocked in, he was
indicating to the company that he was working and not on break.
Romero questioned why Underwood had not pointed out these
alleged mistakes when they occurred. Romero accused Respon-
dent of taking this action because of the union organizing. Hill
denied doing so.
The record reveals that Romero had been disciplined for atten-
dance problems in September 1997 and May and September
1998. Further, in May 1998, in a regular performance review,
Respondent stressed that Romero “needs to improve his atten-
dance.” In November 1998, Romero received another negative
performance review. In that review, Underwood wrote that Ro-
mero “needs to improve attendance” and Underwood rated Ro-
mero’s attendance as “Less than acceptable.”
On April 8, Hill and Underwood gave another warning. Hill
read from the warning stating:

The following is a list of items that have brought this situation
to a final notice.

1. 32 days absent in the past 6 months.
2. Six tardies or left early in the past six months.
3. Not punching time clock.
4. Defrauding the company of work time (9/30/97,
3/12/99)
5. Insubordination to a supervisor. (9/30/97)

Of the 32 absences charged against Romero, 20 were due to a
back injury. Hill stated that this did not excuse the fact that Ro-
mero had so many absences. Hill also mentioned tardies “left
(sic) earlies” and failure to punch the timeclock properly. Ro-
mero said he left early only with permission and that he had on
occasion forgot to punch out. Romero was not suspended or
terminated, although he had a verbal warning and two prior writ-
ten warnings (including the suspension of March 12).
The record shows that Romero had these absences and atten-
dance problems. However, all of these problems occurred prior
to March 12. After, March 12, Romero took 6 hours of vacation
time on March 26. The March 26 vacation time was approved by
Underwood.
Conclusions
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board an-
nounced the following causation test in all cases alleging viola-
tions of Section 8(a)(3) or violations of Section 8(a)(1) turning on
employer motivation. First, the General Counsel must make a
prima facie showing sufficient to support the inference that pro-
tected conduct was a "motivating factor" in the employer's deci-
sion. Upon such a showing, the burden shifts to the employer to
demonstrate that the same action would have taken place even in
the absence of the protected conduct. The United States Supreme
Court approved and adopted the Board's Wright Line test in
NLRB v. Transportation Corp., 462 U.S. 393, 399–403 (1983).
In Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996), the
Board restated the test as follows: The General Counsel has the
burden to persuade that antiunion sentiment was a substantial or
motivating factor in the challenged employer decision. The bur-
den of persuasion then shifts to the employer to prove its affirma-
tive defense that it would have taken the same action even if the
employees had not engaged in protected activity.
For the following reasons, I find that the General Counsel has
made a prima facie showing that Respondent was motivated by
unlawful considerations in issuing a warning to Ramirez. First,
Ramirez was engaged in protected concerted activities and Re-
spondent was aware of such activities. There is evidence that
Respondent strongly opposed unionization. The discipline oc-
curred during a time period when Ramirez was actively engaged
in union activities and shortly after Ramirez was seen with the
union handbillers. Finally the discipline included rather weak
references to wasting company time and not returning to work
after lunch.
However, I find that Respondent has met its burden under
Wright Line in establishing that Ramirez made an error in receiv-
ing commercial steel as structural steel and that Ramirez would
have been disciplined for this mistake absent his union activities.
Ramirez was disciplined as soon as Respondent discovered the
receiving error. The other receiving clerk was also disciplined for
the same offense. The receiving error went to the essence of Ra-
mirez’ duties as a receiving clerk. Respondent followed its estab-
lished disciplinary procedure. Thus, because of prior discipline
Ramirez received a written rather than a verbal warning. Albright,
the other receiving clerk, received a verbal warning because he
had no prior discipline. Albright admitted that the two clerks were
at fault.
It has long been held that there are five principal elements that
constitute a prima facie case insofar as Section 8(a)(3) and (1) are
concerned. The first is that the employee alleged to be unlawfully
disciplined must have engaged in union or protected activities.
The second is that the employer knew about those protected
activities. Third, there must be evidence that the employer
harbored animus against those individuals because of such
activities. Fourth, the employer must discriminate in terms of
employment. Finally, the discipline must usually be connected to
the protected activity in terms of timing. See, e.g., Goodyear Tire
& Rubber Co., 312 NLRB 674 (1993).
For the following reasons, I find that the General Counsel has
made a prima facie showing that Respondent was motivated by
unlawful considerations in issuing a warning to Romero. First,
Romero was engaged in protected concerted activities and Re-
spondent was aware of such activities. There is evidence that
Respondent strongly opposed unionization. The discipline oc-
curred during a time period when Romero and Ramirez were
actively engaged in union activities and shortly after Romero was
seen with the union staff handing out leaflets. Finally the disci-
pline involved rather weak references to wasting company time
and not returning to work after lunch.
Although the allegations of wasting company time and not re-
turning to work appear petty to me the issue is whether Respon-
dent was motivated by union animus in giving Romero such a
warning. Romero had a history of absenteeism and tardiness.
Underwood observed Romero taking a break after he had clocked
back into work, on two occasions. Further, Underwood observed
Romero taking a break in the receiving office with Mariano and
J.I.T. STEEL, INC. 1625
Ramirez. Coupled with an absence and a tardiness in February,
Respondent issued Romero a warning. I find that Respondent
would have issued this warning even in the absence of the Ro-
mero’s union activities.
However, on March 30, the Union filed a representation peti-
tion and an unfair labor practice charge against Respondent.
Thereafter, on April 8, Respondent issued another warning to
Romero relying on conduct that occurred prior to March 30.
The timing of these events leads to a strong inference that Ro-
mero’s union activities, the charge and the petition, were the
motivating factors for the disciplinary warning. Further, the
issuance of a “final warning” was a departure from Respon-
dent’s disciplinary procedure. Romero’s poor attendance re-
cord justifies the warning and suspension of March 12 but can-
not serve to establish yet another warning after escalation of the
union activities. The evidence reveals no intervening miscon-
duct by Romero between the warning of March 15 and the
warning of April 8. The only intervening fact was the filing of
the charge and petition.
The burden shifts to Respondent to establish that the same ac-
tion would have taken place in the absence of Romero’s pro-
tected activities. Respondent has not met its burden under Wright
Line. It has not established any reason for a warning on April 8
other than events which took place prior to the March 12 warn-
ing. Further, its established disciplinary system did not provide
for a final warning after a suspension.
Accordingly, I find that the warning given to Romero on April
8 was motivated by the employee’s protected concerted activities,
the filing of the petition, and the filing of the charge and, that
Respondent has not established that it would have issued Romero
a warning absent protected conduct. Thus, I find that Respondent
has failed to carry its burden under Wright Line and that the
warning of April 8 violated Section 8(a) (1) and (3) of the Act.
Independent 8(a)(1) allegations
1. As found above, prior to the election supervisor Rui
Godenho told employee Danny Marquez in the presence of
supervisor Eric Ballesteros that it would be simple for the Re-
spondent to close the facility and hire new employees under a
different name. During April, Eric Ballesteros told Romero
“the Union is no good for J.I.T., they’ll close this place down
and so on.” Romero answered that the business was growing
and would not close down. I find that by such conduct Re-
spondent violated Section 8(a)(1) of the Act.
2. Respondent’s no-solicitation rule states in pertinent part
“Solicitation in working areas is not permitted at any time.” That
rule herein was republished in January 1999. The Board has held
that no-solicitation rules generally must be limited to working
time. See Hale Nani Rehabilitation, 326 NLRB 335 fn. 2 (1998).
The rule bars union discussions at work station, when employees
are returning from breaks, and in the absence of any particular
showing of interference with production or discipline, and is
therefore unlawful. FGI Fibers, Inc., 280 NLRB 473, 474
(1986); Stoddard-Quirk Mfg. Co., 138 NLRB 615, 619 (1962).
That Respondent has not enforced the rule does not vitiate the
rule’s coercive effect. Pullman, Inc., 221 NLRB 1088, 1089
(1975).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By issuing a disciplinary warning to Danny Romero be-
cause of his union and protected concerted activities, Respondent
violated Section 8(a) (1) and (3) of the Act.
4. By threatening to close its business in the event of unioniza-
tion, Respondent violated Section 8(a)(1) of the Act.
5. By maintaining an overly broad no-solicitation rule which
prohibited solicitations during nonworking time, Respondent
violated Section 8 (a) (1) of the Act.
6. The above unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor prac-
tices, I shall recommend that it be ordered to cease and desist
therefrom and that it take certain affirmative action to effectuate
the policies of the Act.
Respondent shall also be required to expunge any and all ref-
erences to its unlawful warning of Romero from its files and
notify Romero in writing that this has been done and that the
unlawful discipline will not be the basis for any adverse action
against him in the future. Sterling Sugars, Inc., 261 NLRB 472
(1982).
On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended3
ORDER
The Respondent, J.I.T. Steel, Inc., Tulare, California, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Issuing warning notices to employees in order to discour-
age union activities.
(b) Threatening to close its business in the event of unioniza-
tion.
(c) Maintaining an overly broad no-solicitation rule which
prohibited solicitations during nonworking time.
(d) 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 effectu-
ate the policies of the Act.
(a) Within 14 days from the date of this Order, remove from its
files any and all references to the April 8, 1999 warning of Danny
Romero and notify him in writing that this has been done and that
Respondent's discipline of him will not be used against him in
any future personnel actions.

3 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 pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1626
(b) Within 14 days after service by the Region, post at its Tu-
lare, California facilities copies of the attached notice marked
“Appendix.”4 Copies of the notice, on forms provided by the
Regional Director for Region 32, after being signed by Respon-
dent’s authorized representative, shall be posted for 60 consecu-
tive days in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure the notices are not altered,
defaced, or covered by 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 attached notice to all current employees and former
employees employed by the Respondent at any time since Janu-
ary 1999.
(c) 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 Respon-
dent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES
GOVERNMENT

4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

The National Labor Relations Board has found that we violated
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 con-
certed activities.

WE WILL NOT issue warnings or otherwise discipline em-
ployees in order to discourage union activities.
WE WILL NOT threaten to close our business in the event
of unionization.
WE WILL NOT maintain an overly broad no-solicitation
rule which prohibits solicitations during nonworking time.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
WE WILL remove from our files any and all references to
the unlawful discipline of Danny Romero issued on April 8,
1999, and notify him in writing that this has been done and that
the fact of this unlawful discipline will not be used against him
in any future personnel actions.
J.I.T. STEEL, INC.