Kentucky Electric Steel Acquisitions

National Labor Relations Board - Board Decisions

Dec 30, 2005

346 N.L.R.B. 185 (N.L.R.B. 2005)

KENTUCKY ELECTRIC STEEL ACQUISITIONS
346 NLRB No. 20
185
Kentucky Electric Steel Acquisitions and Harry K.
Chaffin. Case 9–CA–41511
December 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 14, 2005, Administrative Law Judge
Michael A. Rosas issued the attached decision.1 The
Respondent filed a limited exception and supporting ar-
gument.
The National Labor Relations Board has considered
the decision and record in light of the exception and has
decided to affirm the judge’s rulings, findings,2 and con-
clusions as modified and to adopt the recommended Or-
der as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Ken-
tucky Electric Steel Acquisitions, Coalton, Kentucky, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
Substitute the following for paragraph 2(d).
“(d) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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.”

1 On October 3, 2005, the judge issued an “Errata” correcting
his recommended Order and notice to include a remedy for the
8(a)(4) violation that he found.
2 The Respondent has not excepted to the violations found by
the judge. It has, however, excepted to the judge’s finding at
sec. II,D, par. 1, of this decision, that “[t]he Respondent had
agreed to ‘post’ available positions for union members and, if
none were qualified, only then would it consider applicants
other than former KESI employees.” We find merit in this
limited exception. The judge’s finding appears to be based on
testimony concerning the hiring of a small number of electronic
repairmen, not the hiring of the Respondent’s entire work force.
Although the Respondent hired primarily former employees of
its predecessor KESI, the record does not establish that the
Respondent agreed to post all of its available jobs for union
members, as the judge suggested. Accordingly, in affirming
the judge’s decision, we do not rely on this particular finding,
which does not affect the judge’s other findings or conclusions.
Linda B. Finch, Esq., for the General Counsel.
Gregory L. Monge, Esq. (Vanantwerp, Monge, Jones & Ed-
wards), of Ashland, Kentucky, for the Respondent.
Garis L. Pruitt, Esq. (Pruitt & Thorner), of Catlettsburg, Ken-
tucky, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Ironton, Ohio, on April 12–13, 2005. On Novem-
ber 3, 2004, Harry K. Chaffin, an individual, filed an unfair
labor practice charge against Kentucky Electric Steel Acquisi-
tions (the Respondent). A first amended charge was filed on
December 16, 2004, and a second amended charge was filed on
December 29, 2004.1 On January 31, 2005, the Regional Di-
rector for Region 9 of the National Labor Relations Board (the
Board) issued a complaint and notice of hearing alleging viola-
tions of Section 8(a)(1), (3), and (4) of the National Labor Rela-
tions Act (the Act). The complaint alleges that the Respondent
unlawfully failed to hire and consider for hire Harry K. Chaffin
in retaliation for engaging in protected concerted activities and
for filing the instant charges. The Respondent filed an answer
on February 9, 2005, denying that it violated the Act. The hear-
ing, initially scheduled for March 9, 2005, was rescheduled on
March 1 until April 12, 2005.
The parties were afforded a full opportunity to be heard, to
call, examine and cross-examine witnesses, and to introduce
relevant evidence. On the entire record, including my observa-
tion 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 corporation, operates a steel mill consist-
ing of a melt shop and rolling mill in Coalton, Kentucky. In the
course and conduct of its business operation, the Respondent
annually sells and ships flat steel bars valued in excess of
$50,000 directly to points outside the Commonwealth of Ken-
tucky. 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. The Collective-Bargaining Agreement
In June 2003, a group consisting of Libra Securities and an
unnamed investor (collectively, the Libra group) sought to pur-
chase the Coalton, Kentucky steel mill facility (the Coalton
facility) of Kentucky Electric Steel, Inc. (KESI) at a bankruptcy
auction. As KESI employees had been represented by the Un-
ion for more than 30 years, the bankruptcy court made the sale
of the Coalton facility contingent on the successful negotiation
of a collective-bargaining agreement (CBA).

1 All dates are in 2004, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD186
In that regard, the Libra group hired Pinnacle Steel, LLC
(Pinnacle), a management consultant. Pinnacle then hired Don-
ald Keffer, a labor relations consultant, to handle collective
bargaining with the Union. The head of the Union’s negotiating
committee (negotiating committee) was Carlton Hall, a union
staff representative. Collective bargaining began in or around
June 2003.2 During negotiations, the Union demanded that the
Respondent hire applicants based on their seniority as former
KESI employees. The Respondent agreed to hire all five nego-
tiating committee members, but otherwise refused to include
such a recall provision for former KESI employees in the CBA.
It did, however, enter into a verbal “gentleman’s agreement”
with the Union, notwithstanding the CBA, that it would hire
from the KESI employee workforce based on “seniority and
qualifications.”3
As a result of that agreement, the Respondent and the Union
entered into a CBA, dated July 18, 2003, and effective from
December 8, 2003, to December 7, 2009.4 In August 2003,
with the approval of the bankruptcy court, the Libra group for-
mally purchased the Coalton facility, created the Respondent to
operate it, and hired Pinnacle to manage it.5
B. The Initial Hiring Process
The Respondent initiated the hiring process in or about Au-
gust or September 2003 by advertising job openings for the
Coalton facility in a local newspaper. Job applications were
then distributed by the Kentucky Bureau of Employment Ser-
vices (KBES) and the Union. After a 2-or 3-week period, the
KBES and the Union delivered stacks of applications. The Re-
spondent then had the KBES administer a preemployment test
to applicants. KBES then returned the ungraded applications to
the Respondent.6 Keffer took the applications and sorted them
into two piles—one for former KESI employees and another for
nonformer KESI employees. He then took the pile of applica-
tions from former KESI employees and sorted them into the
types of jobs they previously performed. The piles of non-
former KESI employees were then sorted into the types of jobs
that they applied for.7

2 There was no specific information about the dates of negotiations,
but Keffer testified that they lasted about 2 months before a CBA was
executed. (Tr. 232, 237.)
3 Union President Danny Click and union financial secretary, Almon
Dickson, confirmed Keffer’s testimony that the CBA did not contain a
seniority hiring provision. (Tr. 182, 210, 241.) Click and Dickson also
credibly testified, however, that the parties had a “gentleman’s agree-
ment” that the Respondent would hire based on the seniority and quali-
fications of former KESI employees. (Tr. 166–167, 210–212.) Keffer
did not refute that assertion and, in fact, conceded that he and Hall
agreed that seniority involved “[q]ualifications to do the job. And then
if those two factors are relatively equal we will use length of previous
service as a tie-breaker.” (Tr. 240.)
4 GC Exh. 8.
5 In it is undisputed that Pinnacle is the Respondent’s agent within
the context of this controversy. (Tr. 8–10, 232, 293–294; R. Br. at 2.)
6 Keffer noted that the Respondent scored the tests, but “didn’t even
look at them.” (Tr. 273.)
7 All findings as to how the Respondent prepared for the hiring proc-
ess are based on Keffer’s unrefuted testimony. (Tr. 241–246.)
Initial hiring was geared toward getting the rolling mill back
into operation. The Respondent decided to delay the opening of
the melt shop and instead purchase billets, a prefabricated steel,
to supply the rolling mill.8
Accordingly, Keffer and Bruce Holcomb, another Pinnacle
employee, initially interviewed 12 applicants with prior main-
tenance experience to prepare the rolling mill machinery. Six
former KESI employees were hired in December 2003 to per-
form this function.9
C. Complaints of Selective Hiring
By January, the Respondent had hired 42 hourly employees
to operate the rolling mill. The Union complained, however,
that the Respondent was “cherry-picking” or engaging in selec-
tive hiring. The Respondent was well aware of this concern on
the part of the Union.10 Keffer informed the Union that the
Respondent wanted to staff the Coalton facility with employees
who were qualified and had a good attitude.11 In January 2004,
the Union filed an unfair labor act charge with the Board.
The Union went to the press and, on February 1, the Ash-
land, Kentucky Daily Independent published an article entitled,
“Union files charge against Kentucky Electric Steel.” The arti-
cle quoted critical remarks by several union officials and for-
mer employees, including the following statement by Chaffin:
“We were told we’d be called back in a certain order. But
there have been inconsistencies,” said Harry Chaffin, former
president at Local 7054. “All we’re wanting is a fair shake.”12
The article appeared on the internet and, during that same
week, a reporter from the Hamilton Spectator, a Canadian
newspaper, contacted present and former union officials, in-
cluding Chaffin. The Canadian press was interested in the Coal-
ton facility because of Pinnacle’s proposal to purchase the
Hamilton Specialty Bar steel mill (the Hamilton steel mill)
from Slater Steel, a bankrupt company seeking to liquidate its
Hamilton, Ontario operations. During the late winter of 2003,
Pinnacle and Keffer performed a “due diligence” investigation
of Slater Steel. The investor who hired them also employed
Keffer to negotiate a CBA with the United Steel Workers of
Canada (the Canadian union) on behalf of the Hamilton steel
mill’s employees. This CBA was similar to the one Keffer ne-
gotiated for the Respondent.13
Chaffin, who served as both president of the Amalgamated
Union and the unit that represented KESI’s employees from

8 The melt shop’s function was to melt scrap metal into billets. The
billets are then reheated in the rolling mill and rolled into varying
lengths and widths.
9 R. Exh. 3.
10 Scheel acknowledged that the Respondent was aware of the Un-
ion’s “cherry-picking” allegations, but did not attempt to refute the
allegation. (Tr. 64, 73.)
11 Keffer’s testimony as to what he told the Union during that period
of time was also not refuted. (Tr. 248, 257.)
12 During the spring of 2003, Chaffin was defeated in his bid for re-
election as union president and Click was elected. (Tr. 125, 131; GC
Exh. 6.)
13 There is no dispute regarding Pinnacle’s involvement with the
Hamilton steel mill or the fact that the press initiated the contact with
Chaffin. (Tr. 33–35, 93, 198, 253–255, 306.)
KENTUCKY ELECTRIC STEEL ACQUISITIONS 187
1999 until May 2003, was not a member of the negotiating
committee.14 Furthermore, he had no experience in rolling mill
operations and had no expectation of being considered for one
of those positions.15 Nevertheless, he told the reporter, how-
ever, that he had been at a meeting when union leaders told
members that the Respondent had agreed to hire by qualifica-
tions and seniority, but was engaging in selective hiring. Sub-
sequently, on February 6, an article appeared in the Hamilton
Spectator. It was entitled, “Slater suitor slammed by U.S. work-
ers—Steelworkers say company unfair.” The article initially
quoted a charge by Hall that Pinnacle told a bankruptcy judge
in Kentucky that it would recall 120 former KESI workers on a
seniority basis, but after the plant reopened, Pinnacle was “ig-
noring senior workers in favour of younger employees and
lower wages. To date, 40 workers have been rehired.” The arti-
cle then quoted Chaffin as follows:
“That’s the pattern Pinnacle followed in Kentucky,” said
Harry Chaffin, former president of the USWA local which
represented Kentucky Electric workers. He helped to negoti-
ate a new contract, “but as soon as they were out of bank-
ruptcy they’ve gone to selective hiring,” he said. “The Union
people aren’t very happy with Pinnacle right now,” he said.
“This company just hasn’t been very good to the union peo-
ple.”16
The following day, February 7, the Canadian National Post
Online followed up on the Slater Steel story with an article
published in its Financial Post section entitled, “Steelworkers
urge caution about reputation of potential buyer of Slater as-
sets.” The article referenced the Hamilton Spectator’s February
6 article as follows:
The Spectator quoted Harry Chaffin, former president of the
Steelworkers local in Kentucky that negotiated a first contract
between Kentucky Electric Steel workers and Pinnacle, as
saying his members were “sold out.” He said the company
has engaged in selective hiring that ignored many laid-off sen-
ior employees in favour of younger staff who needed training.
“My advice to the workers in Hamilton would be to make
sure everything they want from this company is locked down
in contract (language) because the good faith part of our con-
tract is not being honoured,” Chaffin told the Spectator.
Only 40 workers have been rehired at Kentucky Electric,
though the union was told as many as 120 workers would be
brought back when the plant reopened last month, said Carl

14 (Tr. 87–88, 112, 159.)
15 There were numerous individuals with earlier and later service
dates than Chaffin at KESI who were offered jobs in the rolling mill.
Chaffin conceded, however, that he had no experience in the rolling
mill and does not claim that he should have been offered one there. (Tr.
136–137.)
16 I sustained the Respondent’s objection to Chaffin’s proffered tes-
timony that he was misquoted. He conceded that he complained to the
reporter that the Respondent was cherry-picking, but it is irrelevant
whether he was misquoted about anything else. The relevant issue in
this case is the Respondent’s reaction to the cherry-picking statement in
the article. (Tr. 95- 97; GC Exh. 5; Jt. Exh. 1.)
Hall, a Steelworkers’ staff representative in Ashland, Ken-
tucky.17
D. The Respondent’s Response Toward the Union
The union complaints apparently succeeded as the Respon-
dent proceeded to hire nearly all of its employees from the for-
mer KESI work force.18 The Respondent agreed to “post”
available positions for union members and, if none were quali-
fied, only then would it consider applicants other than former
KESI employees.19
In late April, the Respondent decided to reopen the melt shop
after it was unable to acquire enough prefabricated billets to
support the rolling mill’s production. After the melt shop
opened on June 4, the Respondent had openings for mainte-
nance technicians. The Respondent proceeded to hire former
KESI maintenance specialists until it exhausted the list. Then,
at the Union’s request, the Respondent hired former KESI
welders, trained them, and converted them to maintenance
technicians.20 Chaffin, a welder at KESI during his last year
there, was not among them. The former KESI welders hired as
maintenance technicians by the Respondent included Philip
Arrowood, Jeffrey Buckler, and Clyde Scott. The Respondent
hired Arrowood on July 5; he was initially hired at KESI on
July 10, 1967. The Respondent hired Buckler on November 1;
he was initially hired at KESI on October 15, 1974. The Re-
spondent hired Clyde Scott on January 10, 2005; he was ini-
tially hired at KESI on June 8, 1983.21
As of June, when the melt shop opened, all but 5 of the Re-
spondent’s approximately 100 hourly employees hired were
former KESI employees. In addition to the negotiating commit-
tee members, the Respondent also hired former union officers,
including former president, Jerry Brewer, and several grievance
committeemen. The most notable, former KESI employee not
hired, however, was Chaffin.22
E. The Respondent’s Response Toward Chaffin
Chaffin, initially hired at KESI on August 31, 1973, is the
most senior former KESI employee not hired by the Respon-

17 GC Exh. 4.
18 Click and Scheel actually complimented each other with respect to
the resolution of the seniority hiring issue. (Tr. 165–166, 182, 184,
314.)
19 Keffer’s testimony established that the Respondent did begin hir-
ing on the basis of seniority and qualifications: “We posted the job and
no one was qualified, then we went and hired [emphasis added].” (Tr.
249.)
20 At KESI, the maintenance department included separate classifica-
tions for welders and maintenance specialists. The Respondent com-
bined the two classifications. (Tr. 161, 164, 218, 257, 312–313.) Its
formal job description stated that a maintenance technician must be
able to perform “all functions mechanical or electrical) necessary to
maintain all operating a service equipment using standard and special-
ized tools and equipment.” R. Exh. 1.
21 R. Exh. 3; GC Exh. 10; Tr. 162, 200–201, 328, 347.
22 The transcript refers to a Jerry Burr, while the employee listings of
the Respondent and KESI refer to Jerry Brewer. (Tr. 248–252; GC Exh.
10; R. Exh. 3.) I adopted the latter reference.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD188
dent.23 He submitted an employment application on or about
September 1, 2003.24 Chaffin spent the majority of his last 10
years with KESI as a storeroom attendant, but worked as a
welder in the last year before KESI shut down. His previous
experience also included 19–20 years as a mobile equipment
operator. Chaffin also completed a year in KESI’s maintenance
training program.25 Accordingly, Chaffin’s prior experience
qualified him for a maintenance technician position after the
melt shop opened. With respect to seniority among those appli-
cants qualified to be maintenance technicians, he had less sen-
iority than Arrowood, but had greater seniority than Buckler
and Scott.26
The Respondent’s reason for neither hiring nor considering
Chaffin for hire is not in dispute. Scheel, the Respondent’s
chief operating officer, read the National Post Online article
and was clearly disturbed by Chaffin’s comments. Scheel felt
that Chaffin’s remarks accusing Pinnacle of being untrust-
worthy reflected a bad attitude that made it difficult for him to
hire Chaffin.27
Subsequently, on several occasions between June and Octo-
ber, Click asked Scheel to hire Chaffin as a maintenance tech-
nician based on his previous experience as a welder. Scheel
repeatedly refused, eventually saying that as a result of the
Canadian newspaper article, he thought that Chaffin had a bad
attitude and was not a team player.28
Scheel’s sentiments were communicated to Chaffin by a un-
ion official and, as a result, Chaffin retained Garis Pruitt, an
attorney.29 Pruitt wrote a letter to Click, dated June 9, request-
ing the Union’s assistance in getting Chaffin a job with the
Respondent. Click never showed the letter to Scheel.30 On
October 13, at Dickson’s request, Scheel met with Chaffin in
the Respondent’s conference room. Others present at the meet-
ing included Dickson, Woodrow Canterbury, a unit commit-
teeman, and Click. The meeting lasted about 15–20 minutes.
Chaffin told Scheel that he would like to have his job back and
asked Scheel if there was a problem. Scheel responded that
based on what he had read in the newspaper articles, he felt that
Chaffin had a bad attitude and would not be a good team
player. In Scheel’s view, Chaffin’s statements to the press
“would make it very difficult to employ him.” Chaffin re-
sponded that he had been misquoted and had not seen the arti-
cle. At some point, Scheel asked Chaffin whether he had taken

23 This finding is based on the KESI plant seniority list and the unre-
futed testimony of Click and Dickson. (Tr. 184–185, 219–220; GC Exh.
10.)
24 Tr. 90; GC Exhs. 3 and (a).
25 Tr. 98–102, 158–59, 192, 228, 247.
26 Tr. 162–165, 200–201, 280–281; GC Exh. 10.
27 Scheel conceded that he read the article and, as a result, ques-
tioned Chaffin’s attitude and ability to be a team player. (Tr. 35–37, 42,
49.)
28 Click credibly testified that, on four or five unspecified dates after
the melt shop opened and prior to October 21, he spoke to Scheel about
hiring Chaffin. (Tr. 160–162, 168–170.)
29 I considered such hearsay testimony only as background informa-
tion leading to Pruitt’s letter. (Tr. 107–108.)
30 Click’s conceded that he did not deliver the letter to the Respon-
dent, but his reason was not made known. (Tr. 179.)
steps to retract his published statements. Chaffin testified that
he had not attempted to correct the article. Click asked Scheel if
he would consider hiring Chaffin if the latter retracted the pub-
lished statement. Scheel stated he would investigate and deter-
mine whether Chaffin had been misquoted, but that Chaffin
would have to be patient because he would not be able to im-
mediately look into the matter due to pressing business.31
On November 3, 2004, Chaffin filed the initial unfair labor
practice charge in the instant proceeding.32 As a result of that
action, Scheel did not, as he promised Chaffin, investigate
whether Chaffin had been misquoted. In a written statement to
a Board investigator, he explained the reason for his refusal to
hire Chaffin:
Would you hire someone who left a meeting agreeing to have
you look into something, then went and filed a charge against
you?33
III. DISCUSSIONS
A. The 8(a)(3) and (1) Violation
The General Counsel alleges that the Respondent violated
Section 8(a)(3) and (1) by failing to hire or consider hiring
Chaffin because of his protected concerted activity. The Re-
spondent denies that antiunion animus contributed to its actions
and contends that Chaffin’s comments did not constitute pro-
tected concerted activity and, in any event, he did not possess
the necessary qualifications for any job.
To establish that the Respondent discriminatorily refused to
consider Chaffin for hire, the General Counsel must establish
that the Respondent excluded Chaffin from the hiring process
and that the Respondent’s animus toward union or other pro-
tected concerted activity contributed to its decision not to con-
sider Chaffin’s application for employment. The unlawful re-
fusal to hire Chaffin essentially requires additional proof that he
was qualified for an available position or that the Respondent’s
requirements for the positions were pretextual. If these ele-
ments are met, the burden shifts to the Respondent to show it
would not have hired Chaffin or considered him for hire in any
event. If the Respondent fails to show that it would have made
the same hiring decisions even in the absence of Chaffin’s un-
ion or other protected activity, then a violation of Section
8(a)(3) has been established. FES, 331 NLRB 9, 12–15 (2000),
applying the Board’s unlawful discharge analysis in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), to refusal-to-hire pro-
ceedings.

31 The testimony of Scheel, Click, and the union attendees at the
meeting was remarkably consistent as to what Scheel said at the meet-
ing. (Tr. 40–44, 66, 109–115, 134–135, 169–173, 182–183, 196–199,
204–205, 208, 220, 316–-317.)
32 GC Exh. 1(a).
33 Scheel attempted to backtrack at trial by suggesting that it was not
urgent that he investigate the matter or that the charges were filed too
soon after the meeting. I do not find these inconsistent explanations
credible. (Tr. 47, 71–72, 317.)
KENTUCKY ELECTRIC STEEL ACQUISITIONS 189
1. Chaffin’s exclusion from the hiring process
Chaffin applied for a variety of jobs on September 1, 2003. It
is undisputed that the Respondent has refused to hire Chaffin or
consider him for hire because of his published statements in the
Hamilton Spectator’s February 6 and National Post Online’s
February 7 articles. On several occasions in 2004, Scheel told
Click that Chaffin’s statements accusing Pinnacle of being
untrustworthy reflected a bad attitude that made it difficult to
employ him. Scheel restated his position at the October 21
meeting and confirmed it in his trial testimony. To date, Chaf-
fin has not been hired or interviewed.
2. Chaffin’s concerted protected activity
Section 7 of the Act provides, in pertinent part, that employ-
ees shall have the right to engage in “concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion.” In the case of individual action, an action is deemed con-
certed “where the evidence supports a finding that the concerns
expressed by the individual are logical outgrowth[s] of the con-
cerns expressed by the group.” Mike Yurosek & Son, 306
NLRB 1037, 1038 (1992), supplemented by 310 NLRB 831
(1993), enfd. 53 F.3d 261 (9th Cir. 1995).
The Respondent does not dispute knowledge of Chaffin’s ac-
tivities. Scheel admitted that, at the very least, he read the Feb-
ruary 7 National Post Online article entitled, “Steelworkers
urge caution about reputation of potential buyer of Slater as-
sets.” The article referenced the Hamilton Spectator’s February
6 article and contained Chaffin’s remarks questioning the good
faith of the Respondent and its agent, Pinnacle, subsequent to
collective bargaining for the Coalton facility. Chaffin also ad-
vised the Canadian union to “lock down” Pinnacle as to all
collective bargaining issues. Scheel reaffirmed his knowledge
about the article at the October 13 meeting with Chaffin, Pruitt,
and union officials. In that meeting, Scheel stated that Chaffin
was not qualified for a job because his statements to the press
indicated that he had a bad attitude and was not a team player.
The Respondent contends, however, that Chaffin did not en-
gage in protected concerted activity because his statements to
the press did not relate to the enforcement of a CBA or other
union rights. In Respondent’s view, Chaffin’s action amounted
to an individual complaint that he had not been hired based on
seniority. Furthermore, the Respondent contends that Chaffin’s
subsequent actions in retaining an attorney to complain to the
Union, Click’s several conversations with Scheel about hiring
Chaffin, and the October 21 meeting to discuss Chaffin’s com-
plaint, all confirm that his statements were made only for the
purpose of getting him hired.
The Respondent’s focus on Chaffin’s interest in employ-
ment is misplaced. Chaffin’s expression of concern to the press
regarding the hiring and seniority issue was a logical outgrowth
of the Union’s filing of an unfair labor charge in January. The
Canadian press, covering the Respondent’s proposal to pur-
chase the Hamilton steel mill and its negotiations with the Ca-
nadian union, contacted Chaffin and other members of the Un-
ion for comment. At the time Chaffin made such remarks, only
42 of the approximately 120 former KESI employees had been
hired. Chaffin’s remarks, although critical of the Respondent
and its agent, Pinnacle, merely reflected the Union’s formal
charge that senior workers were being passed over in favor of
younger workers. His published statements also warned the
Canadian union to be cautious in labor negotiations with Pinna-
cle. Chaffin explained that the Respondent was not honoring
the “good-faith part of our contract” and advised the Canadian
union to “make sure everything they want from this company is
locked down in contract (language).” He asserted that union
members had been “sold out” and that the Respondent “has
engaged in selective hiring that ignored many laid-off senior
employees in favour of younger staff who needed training.”
Indeed, at the time he made such statements (February), Re-
spondent did not have any jobs available for which Chaffin
qualified. Chaffin’s remarks to the press were clearly intended
to elicit public support for the Union’s charge and, therefore,
constituted protected concerted activity. Dougherty Lumber
Co., 299 NLRB 295 (1990), enfd. 941 F.2d 1209 (6th Cir.
1991); Alaska Pulp Corp., 296 NLRB 1260 (1989), enfd. 944
F.2d 909 (9th Cir. 1991).
Chaffin’s remarks regarding the Respondent’s labor prac-
tices and his advice to the Canadian union—not to trust Pinna-
cle and to “lock down” in writing all important issues—also
constituted an activity in which he reasonably believed he was
coming to the mutual aid or protection of other employees. The
Supreme Court has liberally construed the “mutual aid or pro-
tection” clause of Section 7 to include concerted activities by
employees “to improve terms and conditions of employment or
otherwise improve their lot as employees through channels
outside the immediate employee-employer relationship.”
Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). “[I]f they
might reasonably be expected to affect terms or conditions of
employment,” concerted activities are protected by Chapter 7.
Brown & Root, Inc. v. NLRB, 634 F.2d 816, 818 (5th Cir. 1981)
(per curiam). Seniority is a “valuable” condition of employ-
ment. As such, concerted activities directed at protecting sen-
iority rights are protected by the Act. Metal Blast, Inc. v. NLRB,
324 F.2d 602, 603 (6th Cir. 1963) (per curiam). The fact that
Chaffin’s expression of concern over the seniority rights of
former KESI employees was coupled with advice to another
labor organization is of no consequence, since the Act protects
against interference with any union or other protected concerted
activity. Washington State Service Employees (Severn), 188
NLRB 957, 959 (1971).
Finally, although not addressed by the Respondent, the
statements were not so abusive or maliciously untrue as to lose
their protection under the Act. See Brownsville Garment Co.,
298 NLRB 507 (1990) (statements by union members that the
use of company resources was a causal factor in the closure of
the employer’s predecessor found to be within the scope of
protected Section 7 activities); NLRB v. Electric Workers Local
1229, 346 U.S. 464 (1953) (employees may communicate with
third parties in circumstances where the communication is re-
lated to an ongoing labor dispute and is not disloyal, reckless,
or maliciously untrue as to lose the Act’s protection). Although
a seniority hiring provision was not written into the CBA, the
credible testimony demonstrated that the Respondent and the
Union had a verbal “gentleman’s agreement” regarding a hiring
process that would include seniority as a factor. That agreement
was implemented by the Respondent’s hiring on the basis of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD190
seniority and qualifications after the union grievance was re-
solved. Accordingly, Chaffin’s statements to the press could
hardly be considered inaccurate, much less malicious. See Auto
Workers Local 980, 280 NLRB 1378 (1986); Alaska Pulp
Corp., 296 NLRB 1260 (1989).
3. The Respondent’s antiunion animus
The Respondent contends that the General Counsel failed to
show antiunion animus for several reasons: (1) the Respondent
voluntarily recognized the Union as its employees’ representa-
tive; (2) the Respondent offered a position to every member of
the negotiating committee, even though it was not required to
do so; (3) Scheel and Keffer had extensive experience dealing
with unions and were well aware of employees’ rights under
the Act; (4) numerous employees hired had been officers in the
Union; (5) Scheel had been extremely helpful in resolving nu-
merous hiring issues relating to employees other than Chaffin;
(6) the Respondent placed several positions that were salaried
under KESI into the bargaining unit; (7) the unfair labor prac-
tice charge filed by the Union in January was deferred by the
Regional Director and resolved with the Union; and (8) the
Respondent and the Union agreed on job assignment classifica-
tions after the CBA was executed.
It is undisputed that the Respondent and the Union generally
resolved their issues. The Respondent voluntarily recognized
the Union shortly after it sought to purchase the Coalton facility
at a bankruptcy auction, offered a position to every member of
the negotiating committee, as well as numerous officers and
former officers of the Union, and entered into a CBA. The Re-
spondent and the Union subsequently resolved the unfair labor
practice charge and agreed on the general hiring methodology
and job classifications. The Respondent’s analysis, however,
ignores its animus toward Chaffin’s protected concerted activ-
ity.
“An employer’s failure to discriminate against every union
supporter does not disprove a conclusion that it discriminated
against one of them.” Handicabs, Inc., 318 NLRB 890, 897–
898 (1995). In this case, the Respondent resolved all of its ma-
jor issues with the Union regarding hiring at the Coalton facil-
ity. Indeed, Click testified that he was pleased with the Re-
spondent’s hiring of all but five of its workers from the former
KESI workforce. Nevertheless, Chaffin engaged in a form of
protected concerted conduct that the Respondent would not
tolerate. He complained to the press about the Respondent’s
labor practices and advised similarly situated Canadian steel
workers to be cautious in their labor negotiations with Pinnacle,
the Respondent’s agent. Scheel admitted that the statement
excluded Chaffin from hiring consideration because it revealed
that Chaffin had a bad attitude and would not be a team player.
Accordingly, Scheel’s statements demonstrated that the Re-
spondent’s animus toward Chaffin’s protected concerted con-
duct was the motivating factor in its refusal to hire Chaffin or
consider him for hire.
4. Chaffin’s qualifications for an available position
The Respondent contends that Chaffin’s prior experience as
a welder, storeroom attendant, mobile equipment operator, and
janitor did not qualify him for any available positions. The
primary explanation for this position is that none of those pre-
vious positions specifically match any of the job classifications
created by the Respondent. The Respondent also highlights the
fact that Chaffin spent most of the last 10 years as a store room
attendant.34 It is undisputed, however, that, at the Union’s re-
quest, the Respondent hired three former welders at KESI—
Arrowood, Buckler, and Scott—and trained them to become
maintenance specialists.35 It is also undisputed that Chaffin, a
certified welder who performed welding duties for KESI his
last year there, had greater seniority than Buckler and Scott.
The Respondent correctly states that there was no CBA pro-
vision for hiring on the basis of seniority. The undisputed facts
demonstrate, however, that after the Union filed a grievance,
the “gentleman’s agreement” between the Union and the Re-
spondent regarding was enforced and seniority played a role in
the hiring process for everyone, except Chaffin.36 The Respon-
dent considered applicants on the basis of seniority and qualifi-
cations. In other words, if the next person on the KESI seniority
list was qualified for an available position, he or she was hired.
The record is devoid of any credible evidence that, after the
melt shop opened, the Respondent considered more than one
applicant for any available position and hired the most qualified
person.
After the melt shop opened in June, the Respondent began
hiring maintenance technicians. After exhausting the list of
former KESI maintenance specialists, the Respondent, at the
Union’s request, hired former KESI welders as maintenance
technicians and provided them with on-the-job training. Chaffin
was a certified welder with 1 year of experience on the posi-
tion. As the record shows that Arrowood, Buckler, and Scott
were hired and then trained as maintenance technicians solely
because they had worked as welders, there can be no doubt that
Chaffin was also qualified to be hired for such a position. In-
deed, Scheel’s testimony revealed that the Respondent’s only
basis for finding Chaffin unqualified was his bad attitude.
Scheel arrived at that conclusion because he was disturbed by
the statements made by Chaffin to the press.
B. The 8(a)(4) and (1) Violation
The General Counsel also alleges that the Respondent vio-
lated Section 8(a)(4) and (1) when it admittedly failed to hire
Chaffin or consider him for hire after he filed the instant unfair
labor practice charge. The Respondent does not deny the
charge, but attempts to justify Scheel’s adverse reaction to
Chaffin’s filing of the charge by explaining that “the urgency of

34 R. Br. at 15–22.
35 The Respondent’s formal job description stated that a maintenance
technician must be able to perform “all functions (mechanical or elec-
trical) necessary to maintain all operating service equipment using
standard and specialized tools and equipment.” (R. Exh. 1.)
36 The Respondent’s request for an adverse inference that Carl Hall,
the Union’s principal negotiator, would have provided unfavorable
testimony on the significance of Chaffin’s hiring date, is denied. There
is no evidentiary basis in the record for an inference that Hall would
have provided testimony contrary to what was in the KESI “hire date”
record. (GC Exh. 10.)
KENTUCKY ELECTRIC STEEL ACQUISITIONS 191
checking into the accuracy of the quotes became less since Mr.
Chaffin apparently elected to proceed in another direction.”37
Section 8(a)(4) makes it unlawful “to discharge or otherwise
discriminate against an employee because he has filed charges
or given testimony under the Act.” Unless an employer can
establish that its action is motivated by a legitimate business
purpose and is not pretextual or retaliatory, its action will be
found unlawful. Hudson Valley Hotels, 283 NLRB 1146
(1987). Scheel, not even attempting to provide a pretextual
justification for his action, conceded to a Board investigator
that he did not consider Chaffin for hire, as he promised at the
October 21 meeting, because Chaffin filed an unfair labor prac-
tice charge. He confirmed this view at the hearing by express-
ing the view that Chaffin’s filing of the charge vindicated his
initial belief that Chaffin was not a team player. Accordingly,
the General Counsel has made the requisite prima facie show-
ing under Wright Line.
C. The Respondent’s Burden
The General Counsel, having made a prima facie case for
violations of Section 8(a)(1), (3), and (4), the burden shifted to
the Respondent to demonstrate that it would not have taken the
same action even in the absence of Chaffin’s protected con-
certed conduct. FES, 331 NLRB at 12, 15. It is incontrovertible
that the Respondent, after the Union’s charge was resolved,
began considering former KESI employees for hire on the basis
of seniority. If such an applicant was qualified, he or she was
hired. If not, then the Respondent went outside the bargaining
unit to hire. Chaffin, although senior to Buckler and Scott, was
passed over for consideration when the Respondent, at the Un-
ion’s request, began hiring welders for on-the-job training as
maintenance specialists. Furthermore, the Respondent offered
no evidence that Chaffin would not have been found qualified
for the position. Accordingly, the Respondent did not meet its
burden of proof. Under the circumstances, I conclude that the
Respondent violated Section 8(a)(1), (3), and (4) by failing to
hire Chaffin or consider him for hire as a maintenance techni-
cian.
CONCLUSIONS OF LAW
1. The Respondent, Kentucky Electric Steel Acquisitions, is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union, United Steelworkers of America, Local 7054,
USWA, is a labor organization within the meaning of Section
2(5) of the Act.
3. By refusing to consider and hire Harry Chaffin because he
engaged in protected concerted conduct, the Respondent vio-
lated Section 8(a)(1) and (3) of the Act.
4. By refusing to consider and hire Harry Chaffin for em-
ployment because he filed an unfair labor practice charge, the
Respondent violated Section 8(a)(1) and (4) of the Act.
5. The aforementioned unlawful conduct engaged in by the
Respondent constitute unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.

37 R. Br. at 10.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent violated Section 8(a)(1),
(3), and (4) of the Act by refusing to hire Harry Chaffin for
employment, it must offer him instatement and make him
whole for any loss of earnings and other benefits, computed on
a quarterly basis from the date he would have been hired, less
any net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Hori-
zons 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 recommended38
ORDER
The Respondent, Kentucky Electric Steel Acquisitions, Coal-
ton, Kentucky, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to consider applicants for employ-
ment, and failing and refusing to hire them, on the basis of their
union activity.
(b) 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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Harry
K. Chaffin instatement to one of the positions for which he
applied or, if those positions no longer exist, to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges.
(b) Make Harry K. Chaffin whole for any loss of earnings
and other benefits suffered as a result of the unlawful discrimi-
nation against him, in the manner set forth in the remedy sec-
tion of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful refusal to hire and con-
sider for hire Harry K. Chaffin and, within 3 days thereafter,
notify him in writing that this has been done and that the
unlawful actions will not be used against him in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form,
necessary or useful in analyzing the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Coalton, Kentucky, copies of the attached notice

38 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD192
marked “Appendix.”39 Copies of the notice, on forms provided
by the Regional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous 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 employ-
ees employed by the Respondent at any time since June 4,
2004.
(f) 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.
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 no-
tice.

39 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.”
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail or refuse to consider applicants for em-
ployment, or to hire applicants for employment, because of
their union activity.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer Harry K. Chaffin instatement to the position of mainte-
nance specialist or one of the other positions for which he ap-
plied or, if those positions no longer exist, to substantially
equivalent positions.
WE WILL make Harry K. Chaffin whole for any loss of earn-
ings and other benefits suffered as a result of our unlawful dis-
crimination against him, less any net interim earnings, plus
interest.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful refusal to
hire Harry Chaffin, and WE WILL, within 3 days thereafter, no-
tify him in writing that this has been done and that the refusal to
hire will not be used against him in any way.
KENTUCKY ELECTRIC STEEL ACQUISITIONS