Lyman Steel Co.

National Labor Relations Board - Board Decisions

May 6, 1980

249 N.L.R.B. 296 (N.L.R.B. 1980)

296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lyman Steel Company and James Green, Ray
Norris, and Ronald Marek
Lyman Steel Company and Enoch Gray and Exca-
vating, Building Material, Construction Drivers,
Race Track Employees, Manufacturing, Proc-
essing, Assembling and Installer Employees,
Local Union #436 of Lake, Geauga, Cuyahoga
County and Vicinity, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Party
in Interest
Lyman Steel Company and International Union,
Allied Industrial Workers of America, AFL-
CIO. Cases 8-CA-11951, 8-CA-12184, 8-CA-
12290, 8-CA-12290-2, 8-CA-11969, 8-CA-
12003, 8-CA-12357, and 8-RC-10916
May 6, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On November 27, 1979, Administrative Law
Judge Leonard M. Wagman issued the attached
Decision in this proceeding. Thereafter, the Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of
the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions' of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Lyman Steel
Company, Warrensville Heights, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
I The Respondent contends that the Administrative Law Judge's con-
clusions, pertaining to the termination of employee Norris. reveal a bias
and prejudice against the Respondent Upon careful examination of the
Administrative Law Judge's D)ecision and the entire record herein, we
are satisfied that this contention is without merit.
249 NLRB No. 40
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge:
Upon charges filed by James Green in Case 8-CA-
11951, by Ronald Marek in Case 8-CA-11969, and by
Enoch Gray in Case 8-CA-12003, the Regional Director
for Region 8 issued an order consolidating cases, consoli-
dated complaint, and notice of consolidated hearing on
June 29, 1978, against Respondent, Lyman Steel Compa-
ny. Thereafter, on July 12, 1978, the Regional Director
for Region 8 issued an amendment to consolidated com-
plaint, naming Excavating, Building Material, Construc-
tion Drivers, Race Track Employees, Manufacturing,
Processing, Assembling and Installer Employees, Local
Union 436 of Lake, Geauga, Cuyahoga County and Vi-
cinity, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called Local 436, as a party in interest in
Case 8-CA-12003. Thereafter, on September 7, 1978, the
Regional Director isssued an order consolidating cases,
complaint, and notice of consolidated hearing based on a
further charge filed by James Green, an individual, in
Case 8-CA-12184. The Regional Director issued a fur-
ther order consolidating cases, complaint, and notice of
consolidated hearing on October 30, 1978, upon addition-
al charges filed by Ray Norris, an individual, in Cases 8-
CA-12290 and 8-CA-12290-2 against Respondent. Final-
ly, on December 7, 1978, the Regional Director issued
an order consolidating cases, complaint, and notice of
hearing upon a charge filed by International Union,
Allied Industrial Workers of America, AFL-CIO, re-
ferred to herein as AIW, against Respondent. The con-
solidated cases captioned above allege that Respondent
violated Section 8(a)(l), (2), (3), and (5) of the National
Labor Relations Act, as amended (29 U.S.C. 151, et seq.),
referred to below as the Act. The Respondent, by an-
swers to the complaints and amendments, denied com-
mission of any of the alleged unfair labor practices.
AIW filed a petition for certification in Case 8-RC-
10916 on April 28, 1977. On May 24, 1977, pursuant to a
Stipulation for Certification Upon Consent Election, the
Regional Director conducted an election in the following
unit at Respondent's Warrensville Heights, Ohio, plant:
All production and maintenance employees and
truck drivers excluding all office clerical employees,
professional employees, guards and supervisors as
defined in the Act.
The tally of ballots shows that out of 36 eligible voters,
13 voted for Petitioner, AIW, 17 voted for Intervenor,
Local 436, and I voted against both labor organizations.
The challenged ballots of five employees were sufficient
to affect the outcome of the election. Thereafter, pursu-
ant to a settlement stipulation, approved by the Board
and enforced by a judgment, the Board set aside the
election of May 24, 1977, and directed the Regional Di-
rector to conduct a second election at such time as he
deemed appropriate.
On September 22, 1978, the Regional Director con-
ducted a second election among Respondent's production
LYMAN STEEL COMPANY 297
and maintenance employees. The tally of ballots shows
that of 30 eligible voters, 7 cast ballots for AIW, none
cast votes for Local 436, and 16 cast votes against both
labor organizations. The challenged ballots were insuffi-
cient in number to affect the results of the election.
On December 6, 1978, the Board directed a hearing on
Local 436's and AIW's Objections 1, 2, 3, and 5 to con-
duct affecting the election's results. The Regional Direc-
tor consolidated the objections with the captioned unfair
labor practice complaints in the instant case.' The hear-
ing in this consolidated case was held before me in
Cleveland, Ohio, on April 23, 24, and 25, 1979.
Upon the entire record in these cases and from my ob-
servation of the demeanor of the witnesses, and after
having considered the briefs filed by the General Coun-
sel and the Respondent, I make the following:
FINDINGS OF FACT
I. THE RESPONDENT'S BUSINESS
Respondent, an Ohio corporation, engages in the fabri-
cation of steel products at its Warrensville Heights,
Ohio, plant. Annually, Respondent, in the course and
conduct of its business operations, receives goods valued
in excess of $50,000 at its plant directly from points lo-
cated outside the State of Ohio. From the foregoing
facts, which Respondent has admitted, I find that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS
AIW and Local 436 are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Issues
On April 25, 1977, one of Respondent's employees,
Timothy McConnell, contacted AIW's regional director,
Nick Serraglio, about organizing Respondent's employ-
ees. The following day Serraglio met with McConnell
and other of Respondent's employees. Thereafter, AIW
undertook to organize Respondent's production and
maintenance employees. On April 28, Respondent re-
ceived a mailgram announcing the AIW campaign and
identifying six employees as organizing committee mem-
bers. By the end of April or in early May 1977, Re-
spondent's president, Richard Green, received a letter
announcing the AIW organizing drive and identifying 17
employees as members of AIW's organizing committee.
On or about May 1, Respondent received AIW's writ-
ten claim of majority status in a unit of its production
and maintenance employees and requesting recognition
and bargaining. Respondent has never acceded to that
request. As of April 27, 1977, the date of AIW's letter
demanding recognition and bargaining, AIW had signed
authorization cards from 24 of Respondent's 34 produc-
In his Report on Objections to Second Election the Regional Direc-
tor found that both AIW and Local 436 allege: "[T]hat during the critical
period the Respondent] threatened, interrogated, discriminated against
employees because of their union sympathies and otherwise interfered
with the conduct of the election."
tion and maintenance employees. Nevertheless, on April
28, 1977, AIV,' filed a representation election petition in
Case 8-RC-10916 seeking an election in a unit of Re-
spondent's production and maintenance employees.
In the meantime, beginning on or about April 29, 1977,
Local 436 set about attempting to organize the same unit
of employees. By May 14, 1977, Local 436 had obtained
a number of authorization cards among Respondent's
production and maintenance employees. Local 436 also
intervened in the pending representation election in Case
8-RC-10916.
During the few weeks leading up to the first election
in Case 8-RC-10916, on May 24, 1977, Respondent as-
sisted Local 436. Thus, prior to the first election, Re-
spondent's vice president, Steven A. Green, asked em-
ployee Daniel Sheehan to sign an authorization card for
Local 436. Steven Green said he would make "it worth
[Sheehan's] while." Earlier in the preelection period,
Steven Green offered Sheehan $200 if he would sign a
card for Local 436. On the date of the election, Steven
Green telephoned employee Sheehan and berated him
for failing to vote for Local 436. Steven Green said that
he knew exactly how each employee had voted in the
Board-held election.
On May 25, Vice President Steven Green scolded
Sheehan for not voting for Local 436. Following a
heated exchange that same day, Vice President Green
discharged Sheehan. 2
Shortly before the second election Respondent openly
admitted partiality. Respondent's president, Richard
Green, speaking to a group of his employees, in Septem-
ber 1978, admitted that in the 1977 preelection campaign,
"some of the members of management apparently decid-
ed that between the AIW and the Teamsters, they would
just as soon deal with the Teamsters."
On April 27, 1977, employee Robert Burnett signed an
AIW authorization card. During this first preelection
campaign, Vice President Green solicited Burnett's sig-
nature on a Local 436 authorization card. Burnett took
the card, but did not sign it. Instead, he gave it to em-
ployee James Rakowicz. The next day, Vice President
Green asked Burnett for the card. Burnett replied that he
had left it at home. A few hours later, Green offered a
second Local 436 card to Burnett. Burnett asked
Rakowicz to return the first card, which Burnett signed
and gave to Vice President Green.
During the pendency of the election of May 24, 1977,
Vice Presidents Ellie Brothag and Steven Green repeat-
edly asked Burnett which union he intended to vote for.
Burnett responded that he would vote for Local 436.
However, he intended to vote for AIW.
On the evening of May 23, 1977, Vice President Green
telephoned Burnett at home and sought to assure himself
that Burnett would vote for Local 436. Steven Green
told Burnett that, if Local 436 won the election, Re-
spondent intended to terminate employees Tim McCon-
nell, Terry McConnell, Jim Rakowicz, David Ciprian,
Douglas Ciprian, and Graham Coghill. Green also
2 The findings regarding Vice President Steven A. Green's confronta-
tions with employee Sheehan are based on Sheehan's uncontradicted tes-
timony.
LYMAN STEEL COMPANY q.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warned that even if Local 436 lost, these employees
might "be gone" within 1 year.
On the day of the election, Vice President Ellie
Brothag pressed Burnett to reveal his intended vote.
After receiving his assurance that he would vote for
Local 436, Vice President Brothag told Burnett that Re-
spondent would reward him after the election. On the
evening of May 24, after the election, Vice President
Green telephoned Burnett and expressed doubt as to
Burnett's vote. Vice President Green went on to say:
"Because you didn't vote with us, we will have trouble
out in the shop for the next year now."
Early on the morning of May 30, 1977, Vice President
Steven Green telephoned Burnett at home and told him
that he believed that Burnett had lied about voting for
Local 436 and that he wished that Burnett would quit.
Burnett agreed to quit. However, on the following day,
Burnett reported for work. Vice President Green came
to Burnett's work station and repeated his wish that Bur-
nett would quit. That same day, after one more unsuc-
cessful attempt to pressure Burnett into quitting, Vice
Presidents Green and Brothag fired him, giving as the
reason "insubordination." 3
I find from former employee 4 John Verbic's uncontra-
dicted testimony that, on one occasion during the union
campaigns preceding the May 1977 Board-held election,
Vice President Green instructed him to attend a Local
436 meeting. As an inducement, Green promised Verbic
I hour's pay. Verbic attended the meeting and received
$4 in cash from Vice President Green. I also find from
Verbic's undenied testimony that, on the day of the May
1977 election, Vice Presidents Steven Green and Ellie
Brothag questioned Verbic regarding his intention to
vote for Local 436.
Earlier in the same preelection period, it is undisputed
that Brothag paid employee Verbic $20 to attend a AIW
meeting and report to her who was there and what had
occurred at the meeting. I also find from Verbic's unden-
ied testimony that, about the same time, Brothag told
Verbic not to sign an AIW card and assured him that
Respondent "would take care of [him]" if he signed a
Local 436 authorization card.
In May 1977 Vice President Brothag came to employ-
ee Enoch Gray at the plant and encouraged him to vote
for Local 436. Also, prior to the May 1977 election, Vice
President Green gave Gray $200 to induce him to vote
for Local 436, and promised a further payment of $250
to be made to Gray after the election. Finally, although
Gray was absent from work on the workday following
July 4, 1977, Vice President Brothag, in a departure
3 My findings regarding Burnett's confrontations with Steven Green
and Ellie Brothag and his treatment at Respondent's hands are based on
Burnett's testimony.
Brothag denied that she asked employees how they intended to vote or
that she attempted to persuade employees to support Local 436. Howev-
er, doubt was cast on her denials by the remarks of Respondent's presi-
dent to groups of his employees in 1978 in which he admitted that Re-
spondent's management had favored Local 436 during the previous year.
More important to her credibility was her demeanor on cross-examina-
tion. For, when cross-examined about her attitude toward Local 436, and
about whether she talked to or questioned employees about Local 436,
Brothag became evasive. I have therefore rejected her denials. Steven
Green did not testify at this hearing.
Respondent employed Verbic from March 20 until June 20, 1977.
from Respondent's policy, paid him for both the holiday
and the day on which he was absent.5
Prior to the May 1977 representation election, Re-
spondent's hostility toward AIW also manifested itself in
the form of threats and other coercive conduct. On May
19, 1977, President Green approached employee James
E. Rakowicz, an AIW activist, at the plant and accused
him of "trying to conduct a war against [President
Green] and put him out of business." Rakowicz denied
the accusations, adding that he was attempting to defend
employee rights "in the shop." President Green warned
that that was "where" Rakowicz would "pay for it."
President Green threatened to do all that he could "to
make every day at Lyman Steel as miserable as possible
for [Rakowicz] .... " Green threatened to prevent
Rakowicz from gaining employment elsewhere. Presi-
dent Green warned Rakowicz that no matter which
union succeeded in organizing the employees, Respond-
ent would keep Rakowicz' hourly rate "at $6.90 and no
overtime."
In the same encounter, President Green turned his at-
tention to employee Timothy McConnell. President
Green warned that he had enough cause to discharge
McConnell "after the election." He also said that he
would make Rakowicz "sorry that [he] ever knew Tim
McConnell."
On June 10 President Green suspended Rakowicz
pending an investigation. When Rakowicz questioned the
suspension, President Green replied that it was for re-
marks Rakowicz had made about Respondent, and be-
cause of Rakowicz' attitude and work. On or about June
20, Respondent notified Rakowicz that he was terminat-
ed.
Terry McConnell signed an AIW authorization card
on April 27, 1977, at Respondent's parking lot. On or
about April 29, President Richard Green warned em-
ployee Terry McConnell that, if the AIW succeeded in
its organizing efforts, the employees would lose benefits
such as cost-of-living increases, overtime, and the profit-
sharing plan. President Green warned that all of the
aforementioned benefits were gifts which came from Re-
spondent, who could revoke them. Prior to May 1, 1977,
Terry McConnell worked a standard 10-hour day and 8
hours per day on three out of four Saturdays. However,
after May 1, 1977, and until his discharge on June 20,
1977, Respondent did not assign any overtime to Terry
McConnell. On May 19, 1977, Respondent's vice presi-
dent, Ellie Brothag, suspended Terry McConnell for 5
days, giving as the reason that he did not complete his
work. On June 20, President Green terminated Terry
McConnell, giving as the reason that Terry McConnell
wrote obscenities on a plant bathroom wall."
Soon after employee Michael DeFoor signed an AIW
card on April 26, 1977, I find from his credible testimony
I Enoch Gray seemed to be a candid witness giving his honest recol-
lection. Therefore, my findings regarding his encounters with Vice Presi-
dent Brothag and Green are based on his testimony.
I My finding regarding James Rakowicz' confrontations with President
Richard Green and Rakowicz' treatment at Respondent's hand were
based on Rakowicz' uncontradicted testimony.
I My findings regarding Terry McConnell's confrontations with Presi-
dent Green and Vice President Brothag and his treatment at Respond-
ent's hands are based on Terry McConnell's uncontradicted testimony.
LYMAN STEEL COMPANY 299
that Vice Presidents Ellie Brothag and Steven Green in-
terrogated him regarding his reasons and other employ-
ees' reasons for wanting union representation.
I find from President Richard Green's testimony that
he became incensed upon learning that employee Ray
Norris had filed an unfair labor practice charge against
Respondent in Case 8-CA-11565. President Green ad-
mittedly sought out Norris in Respondent's plant and
upon finding him called him "trash," "a liar," and "two
faced," all because Norris filed the charge.
The foregoing incidents, together with other asserted
incidents, were alleged as unfair labor practices in
charges filed against Respondent by various individuals
in Cases 8-CA-1113, 8-CA-11127, 8-CA-11137, 8-CA-
11160, 8-CA-11217, 8-CA-11481, and 8-CA-11565.
These allegations, together with objections to conduct
affecting the results of the representation election con-
ducted on May 24, 1977, were treated in the settlement
stipulation which the Board approved in a Decision and
Order issued on May 15, 1978. In the same Decision and
Order, the Board set aside the election and directed a
second rerun election. In an order severing cases and
notice of consolidated hearing issued on January 25,
1979, the Regional Director severed Cases 8-CA-1113,
8-CA-11127, 8-CA-11137, 8-CA-11160, 8-CA-11217,
8-CA-11481, and 8-CA-11565, from the cases captioned
above.
Since May 24, 1977, AIW and Local 436 have persist-
ed in their efforts to organize Respondent's production
and maintenance employees. The issues presented here
are whether, in response to this union activity among its
employees, Respondent has violated Section 8(a)(1) of
the Act by: (a) offering to pay and paying employees to
threaten and harass employees who were supporting
AIW; (b) interrogating employees concerning their union
activity and sentiment toward unions; (c) interrogating
employees concerning the union activity and union senti-
ment of another employee; (d) threatening employees
with discharge and other economic reprisals if AIW
achieved certification as their bargaining representative;
(e) ordering employees to cease discussing with fellow
employees AIW, union representation, and Respondent's
past alleged unfair labor practices; (f) threatening em-
ployees with discharge, loss of overtime, or other repri-
sals because they support AIW or associate with known
AIW supporters; (g) confronting employees with the fact
that Respondent knew they had signed authorization
cards on behalf of AIW; (h) maintaining, enforcing, or
applying a too broad no-solicitation rule; (i) threatening
an employee with reprisals for joining, assisting, or sup-
porting AIW; (j) asking an employee to sign a statement
that he had received an AIW authorization card from
another employee during working hours; (k) asking an
employee if he had any friends who were opposed to
AIW and who were looking for employment, prior to
the voting eligibility date for the second election in Case
8-RC-10916; (I) promising an employee a wage increase
if AIW's organizing campaign failed; (m) engaging in
surveillance or giving its employees the impression that
their union activities were under surveillance; (n) threat-
ening an employee with plant closure if AIW's organiz-
ing campaign succeeded; (o) threatening that strikers
would have no hope of reinstatement; (p) threatening an
employee by saying that he was earning 2 per hour
more than the going rate for his job in a union shop; (q)
threatening an employee with loss of benefits if AIW's
organizing campaign succeeded; (r) threatening an em-
ployee with demotion to temporary status because the
employee supported AIW; and (s) threatening employees
with layoff if AIW became the employees' certified col-
lective-bargaining agent.
Also presented is the issue of whether Respondent vio-
lated Section 8(a)(2) and (1) of the Act by telling em-
ployees of its intention to pay employees to induce them
to support Local 436.
Further issues presented are whether Respondent vio-
lated Section 8(a)(3) and (1) of the Act by: (a) suspend-
ing the employment of James Green; (b) discharging em-
ployee James Green; (c) eliminating employee Ronald
Marek's overtime hours; (d) discharging Ronald Marek;
(e) refusing to pay holiday benefits to employee Enoch
Gray; and (f) discharging Ray Norris, because the four
employees, respectively, supported AIW.
The final issue presented by the pleadings is whether
since April 27, 1977, Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to recognize AIW as the
exclusive bargaining representative of the production and
maintenance employees at its Warrensville Heights plant.
B. Interference, Restraint, Coercion, and Unlawful
Assistance to Local 436
During the week preceding November 24, 1977, Vice
President Ellie Brothag offered $50 each o,, employees
Ronald Marek and Charles Rankin to induce them to
start a fight with employee David Ciprian so that he
might quit. She gave as a reason that Ciprian favored
AIW and that the employees supporting AIW were
"messing the Company up." Marek and Rankin rejected
Brothag's offer.8
During the week following November 24, 1977, Vice
President Steven Green approached Marek and Rankin
and offered $100 to each of them as inducement to pro-
voke a fight with David Ciprian. Marek and Rankin took
up the offer.
On December 2 and 3 Marek and Rankin carried out
their project. On December 2, they warned Ciprian that
he was tampering with their employment and that, unlss
he ceased, he would be cut. As he spoke, Marek dis-
played a razor-edged tool. On the following morning,
Marek, Rankin, and several other employees approached
Ciprian and accused him of trying to cause them to be
fired. They warned him to stop such activity or face
death. On December 3, following the last threat, David
Ciprian quit his employment at Respondent's plant and
never returned. 9
' Brothag did not testify about the offer attributed to her by Ronald
Marek's testimony. Instead she denied actually paying or knowing about
any payments for harassment or physical attacks on employees. In any
event, of the two, Marek impressed me as the more frank and forthright
witness. I have therefore credited his testimony regarding this encounter
with Brothag.
9 My findings regarding Ciprian's encounters with Marek and Rankin
on December 2 and 3, 1977, are based on Ciprian's testimony. Marek's
version was that he, Marek, grabbed Ciprian, shook him, and pushed him
Continued
LYMAN STEEL COMPANY
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
First, it appears the Brothag's attempt to enlist Marek
and Rankin in her scheme to coerce David Ciprian may
have predated the filing of the earliest of the unfair laborpractice charges before me, captioned above as Case 8-CA-11951, by more than 6 months. In light of the 6-
month limitation imposed by Section 10(b) of the Act,°
I do not find Brothag's conduct to be violative of Sec-
tion 8(a)(1) of the Act. However, I find that Respondent
violated Section 8(a)(l) of the Act by Vice President
Green's efforts to enlist employees Marek and Rankin in
his plan to coerce employee Ciprian into withholding his
support from AIW.
On another occasion after the Ciprian incidents, Vice
President Steven Green suggested that Marek and
Rankin rid Respondent of AIW supporters Michael
DeFoor and Ray Norris. I find that, by this suggestion,
Respondent again violated Section 8(a)() of the Act.
On or about May 1, Ellie Brothag approached employ-
ee Marek and asked him if he had signed an AIW au-
thorization card, adding that she had heard "that every-
body had been signing AIW cards." Marek answered
that he had not signed such a card. In view of Respond-
ent's union animus, as evidenced by unfair labor prac-
tices found elsewhere in this Decision, I find this interro-
gation was coercive and therefore violative of Section
8(a)(l) of the Act. I I
On or about May 5, Vice President Brothag confront-
ed employee Nick Bertovich and said, "I thought I told
you to get that card back." Bertovich answered that he
had. Brothag responded that his name was the "first one
on the list." At this point, Brothag turned to Marek who
had signed an authorization card on the previous day
and said, "I thought you said that you would never sign
one." Marek did not respond. Brothag added "at least
you could have given us a chance." And added "You
will be sorry for this." 2
Given the context I find that, by her confrontation
with Bertovich, Brothag sought to coerce that employee
into revoking an authorization card which she believed
he had executed. I find her remarks were coercive and
interfered unlawfully with the employee's right under
Section 7 of the Act to support a labor organization. Ac-
cordingly, I find that by her remarks Respondent violat-
ed Section 8(a)(l) of the Act.
down and that Ciprian quit immediately after the assault. Marek appearedembarrassed as he provided this sketchy account. As Ciprian appeared tobe more at ease as he provided a fuller and more logical description, I
considered him the more reliable witness of the two.
10 Sec. 10(b) of the Act provides in pertinent part:
. . That no complaint shall issue based upon any unfair labor prac-tice occurring more than six months prior to the filing of the chargewith the Board and the service of a copy thereof upon the person
against whom such charge is made ....
Marek testified that Brothag questioned him in April 1978. Ondirect examination by Respondent's counsel, Brothag, in response to aleading question, denied asking Marek about signing an AIW card inApril. By her testimony, she did not exclude the possibility that she didso in May 1978. However, the General Counsel introduced authorization
cards bearing dates no earlier than May 1, 1978. This circumstance per-suades me that Marek was inaccurate in his testimony. However, asMarek impressed me as the more candid of the two, I have credited histestimony that Brothag asked him if he had signed an AIW card, but findit more likely that she did so in early May 1978, rather than in mid or
late April 1978.
1a My findings as to this incident are based on Marek's testimony.
I also find that, by her remarks to Marek, Brothag
warned that Respondent would punish him because he
signed an AIW authorization card. By this threat, Re-
spondent again violated Section 8(a)(1) of the Act.
Later in May 1978, according to Marek's credited tes-
timony, Brothag directed two employees to her office
after confronting them in the plant with the assertion
that they had signed cards. In the context of the renewal
of union activity, I find that Brothag was referring to
AIW authorization cards. By Brothag's conduct, I find
Respondent interfered with, restrained, and coerced em-
ployees in the exercise of their Section 7 right to support
AIW, and thereby violated Section 8(a)(1) of the Act.
Also in the spring of 1978, Vice President Brothag and
Green instructed Marek not to leave his work area and
not to speak to employee Ray Norris, Enoch Gray, or
James Green, all of whom were AIW supporters. As
early as the spring of 1977, AIW had advised Respond-
ent that Raymond Norris and James Green were mem-
bers of its organizing committee. On May 8, 1978, Re-
spondent received a mailgram from AIW announcing
that Marek, Green, and Gray were members of the AIW
organizing committee. Vice Presidents Green and
Brothag emphasized their prohibition with respect to
Norris and warned Marek that its violation would result
in termination. I find that Respondent prohibited em-
ployee Marek from associating with fellow employees
because he and they were AIW supporters. By this blan-
ket prohibition against any conversations at the plant be-
tween employees who were AIW supporters, Respond-
ent violated Section 8(a)(1) of the Act.
On May 2, 1978, Enoch Gray signed an AIW authori-
zation card. On May 5, 1978, Respondent received a
mailgram naming Gray as an AIW activist. Approxi-
mately 1 week later, Brothag told Gray not to sign an
AIW authorization card because he "was supposed to be
with the Company, and when you change like that . . .
every thing is going to change now." She mentioned
something about Local 436 and told Gray that the Com-
pany would give him $250 "if [he] would stay with the
Company."
In assessing these remarks I recall that in 1977 Brothag
and Vice President Steven Green had pressed money
upon Gray to gain his support for Local 436. Those ear-
lier incidents give specific meaning to the encounter be-
tween Brothag and Gray in May 1978. I find that,
viewed in this context, Brothag's remarks amount to a
further attempt to enlist Gray's support for Local 436.
First, Brothag implied that Gray's change to AIW would
affect his relationship with Respondent. In light of Re-
spondent's manifest hostility toward AIW, Gray was
likely to conclude that Respondent would punish him for
supporting AIW. The offer of $250 "if [he] would stay
with the Company" translates into the presentation of
further inducement to abandon AIW and support Local
436, the union favored by Respondent. I find that by
Brothag's implied threat and her implied promise of
money, both designed to coerce Gray into deserting
AIW in favor of Local 436, Respondent attempted to
1a My findings regarding this incident are based on Gray's testimony.
---
LYMAN STEEL COMPANY 301
assist Local 436 and thereby violated Section 8(a)(1) and
(2) of the Act.
On or about May 3, 1978, Respondent's employee
Richard Hlad received an AIW authorization card from
fellow employee Ray Norris, who Respondent knew to
be an AIW activist. Hlad signed the card and returned it
to Norris that same day. Approximately one-half hour
after he had returned the authorization card to Norris,
Vice President Brothag came to Hlad, stated that she
had heard that he had signed an authorization card, and
instructed him to retrieve the card from Norris and bring
it to her. Brothag added that Norris was "no good and
he would get [Hlad] in trouble." Brothag warned Hlad
to "stay away from [Norris)." ' Hlad obtained his AIW
card and gave it to Brothag. By demanding that Hlad
revoke his AIW authorization card and warning him that
Norris, who had solicited his signature, would get Hlad
into trouble, Brothag made plain that Respondent would
punish Hlad if he did not abandon AIW. I find therefore
that Brothag violated Section 8(a)(1) of the Act by her
warning, and by pressing Hlad to retrieve his AIW card
and give it to her.
I find that Brothag again transgressed when, in the
same context, she asked Hlad to sign a statement that he
had received the authorization card from Norris during
working hours. For, by pressing Hlad to make an accusa-
tion against a known AIW activist, Brothag was suggest-
ing that Respondent was planning reprisals for those
who actively supported AIW. By this suggestion that it
would punish AIW supporters, Respondent once again
violated Section 8(a)(l) of the Act.
In August 1978, Hlad had further confrontations with
Vice President Brothag regarding union activity. In one
incident, Hlad asked Vice President Brothag if she
would hire his friend, Karl Golias. Brothag responded by
asking Hlad: "Would this boy vote for the Union or the
Company?" In mid-August, Brothag asked Hlad to iden-
tify employees who would "vote for the Union" so that
she could press them to quit.
Brothag's interrogation of Hlad regarding the union
sentiment of a prospective employee, occurring in the
context of revealed union animus, was coercive and thus
violated Section 8(a)(l) of the Act. I also find that, by
both her attempt to press Hlad for the names of union
supporters and her threat to constructively discharge
prounion employees, Brothag violated Section 8(a)(1) of
the Act.
During the first week of September, Vice Presidents
Green and Brothag violated Section 8(a)(1) of the Act
by telling employee Hlad that, in the May 1977 represen-
tation election, Respondent "knew how everyone
voted." From this assertion, it was likely that the listen-
ing employee would have concluded that Respondent
had engaged in surveillance of what was to have been a
secret-ballot election. Thus, I find that, by these remarks,
Respondent unlawfully restrained, coerced, and inter-
fered with its employees' right to support a labor organi-
zation.
I further find that Steven Green and Brothag also vio-
lated Section 8(a)(1) of the Act when they told Hlad that
14 My findings regarding Richard Hlad's encounters with Vice Presi-
dent Brothag are based on his credible and undenied testimony
Respondent intended to fire Raymond Norris, who was a
known AIW activist, if Respondent lost the scheduled
representation election. I5
On or about September 5, Hlad heard a rumor at the
plant that, if "the Union" lost the election, Respondent
would grant a $1 wage increase to its employees. When
Hlad questioned Vice President Brothag about the
rumor, she confirmed it, except that she did not know
how much it would be. In confirming the rumor,
Brothag, on Respondent's behalf, was promising employ-
ees a wage increase if they withheld their support from
AIW and Local 436. I further find, therefore, that Re-
spondent thereby violated Section 8(a)(1) of the Act.
On September 11, Vice President Steven Green sum-
moned employees Hlad, Cook, and Golias to his office,
where he told the three that he did not want a union in
Respondent's plant. Steven Green went on to ask the
three employees why they wanted a union. Vice Presi-
dent Green also warned that, if a union succeeded in or-
ganizing Respondent's employees and if they went on
strike and no agreement was reached on a contract, Re-
spondent "could get rid of [them] and bring in a whole
[new] crew." He also warned that he personally had
enough money "to get by" even if Respondent closed its
plant.
In his encounter with employees Hlad, Cook, and
Golias, Vice President Green violated Section 8(a)(l) of
the Act. First, Green's questioning of the employees as
to why they wanted a union, coming in the midst of Re-
spondent's manifestations of union animus, was coercive
and therefore violative of Section 8(a)(1) of the Act.
I also find that Steven Green's remarks about a strike
and replacement strongly suggested that if the employees
engaged in an economic strike, Respondent would termi-
nate them permanently without hope of reinstatement.
By this warning, Respondent again did violence to its
employees' freedom to choose a labor organization as
their exclusive bargaining representative, and again vio-
lated Section 8(a)(l) of the Act.
Finally, by remarking that he had enough money to
tide him over "even after closing the plant," Vice Presi-
dent Green strongly suggested that, if the employees
voted for union representation, Respondent would retali-
ate by closing its plant. By this threat, I find Respondent
violated Section 8(a)(l) of the Act.
On September 13, 1978, Vice President Ellie Brothag
asked employee Hlad about the union sentiments of em-
ployee Bob Cook. Brothag asked Hlad if he knew
whether Cook was "for the Union or the Company."
Hlad responded, "I am pretty sure he's for the Compa-
ny." Brothag responded that, if Cook were prounion,
Hlad should tell her inasmuch as Cook was a probation-
ary employee and Respondent could discharge him. By
Brothag's threat to discharge Cook if he were prounion,
Respondent violated Section 8(a)(1) of the Act.
'5 My findings regarding Hlad's encounter with Vice Presidents Green
and Brothag are based on his credible testimony. As previously slated.
Brothag did not impress me as being a candid witness. Further, her testi-
mony in response to Hlad's assertions consisted of mechanical sounding
answers to leading questions by Respondent's counsel As noted earlier.
Steven Green did not testify.
LYMAN STEEL COMPANY 01
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also in September 1978, Vice President Brothag came
upon employee Karl Golias, Richard Hlad, and other
employees sitting in the plant lunchroom after lunch, on
working time. She remarked, "Now, see, if you would
have had a union, you guys would have been terminat-
ed." 1 By this warning, Brothag suggested that if a
union succeeded in achieving representative status Re-
spondent would retaliate against its employees by impos-
ing stricter discipline on them. Beyond question, this
threat violated Section 8(a)(l) of the Act.
Respondent hired David Byomin on May 1, 1978. At
the hiring interview Vice President Brothag told Byomin
that a union was likely to be "coming in the shop." She
went on to advise him to "keep your nose clean." She
also warned him: "Don't talk to anybody out of your de-
partment. Stay to your job."'7 Given the context within
which Brothag uttered her warnings, I find that she was
in essence warning the new employee that Respondent
would look with disfavor on him if he supported a
union, associated with prounion employees, or discussed
the possibility of union representation with fellow em-
ployees. By Brothag's warnings, I find Respondent again
restrained and coerced an employee in violation of Sec-
tion 8(a)(l) of the Act.
On two occasions in late June 1978, Vice President
Steven Green engaged in unlawful interrogation. In the
first incident, Green asked employee Byomin, "Does Ray
talk to you about the AIW when you are back there
welding?" By this question, Steven Green focused on the
union activities of employee Ray Norris. A few days
later, Green again asked employee Byomin, "Does Ray
talk to you about the Union at all?" Against the back-
drop of Respondent's numerous manifestations of union
animus, I find this interrogation regarding employee
hours of union activity coercive, and thus violative of
Section 8(a)(l) of the Act.
On or about July 1, 1978, Ellie Brothag approached
employees Richard Hlad and David Byomin regarding
union activity. She told them: "You guys are young. You
have a good future. You can build with this company.
You have a good future here." Brothag pointed out that
Respondent had a profit-sharing plan. At this, Byomin
remarked that even Ray Norris liked that plan. Brothag
responded, "If he likes that so much, why does he want
to bring a union in here?" In this same conversation,
Brothag said that, without a union, the Company had
more flexibility and could move employees from one de-
partment to another. Vice President Brothag asserted
that if a union represented the employees the employer
would be unable to make such transfers adding, "We
would have to lay you off."' 8
Contrary to General Counsel's contention, I find that
Brothag's question regarding Norris' reason for wanting
union representation was in the nature of a rhetorical
'" I based my findings as to this incident on the testimony of Karl
Golias who seemed to be giving his honest recollection free of embellish-
ment.
17 David Byomin impressed me as a candid witness attempting to pro-
vide his best recollection of his initial conversation with Vice President
Brothag. I have therefore credited his detailed account of the incident
rather than Brothag's denials.
I8 My findings regarding this incident are based on Byomil's testimo-
ny.
question evidencing Respondent's knowledge that Norris
was in favor of union representation. Respondent had re-
ceived information in the form of a mailgram from AIW
in the spring of 1977 announcing that Raymond Norris
was one of its organizing committee members. I also
note that Norris' union activity and prounion sentiments
were well known to the employees and that Respondent
had questioned Byomin repeatedly about Norris' union
activity. It thus appears that the only impression that an
employer was likely to get from Brothag's question was
that Respondent was puzzled by Norris' prounion senti-
ment in the face of Respondent's profit-sharing plan. I
shall recommend dismissal of so much of the consoli-
dated complaint as is concerned with this alleged interro-
gation.
However, the remainder of Brothag's assertions re-
garding transfers went beyond the bounds of opinion or
argument. On cross-examination, employee Byomin
agreed that Brothag's remarks referred to a hypothetical
union contract and its requirement that an employer
adhere to job classifications and refrain from transferring
an employee from one classification to another. Howev-
er, there is no showing that Brothag came forward with
any actual collective-bargaining agreement containing
such a provision. Thus, the thrust of Brothag's remarks
was that, with the advent of a union as collective-bar-
gaining representative, Respondent would impose a
harsher policy upon employees and would lay them off
rather than transfer them from job to job. I find, there-
fore, that Brothag's remarks about Respondent's transfer
policy violated Section 8(a)(l) of the Act.
On the afternoon of September 13, 1978, 9 days before
the scheduled rerun election, Respondent's president,
Richard Green, spoke to employees Raymond Norris,
Willie Allen, and two other employees in Respondent's
main office. President Green raised the topic of employ-
ees wages. He also stated that he did not want a union in
the plant and that the employees benefits "were good the
way they were." President Green also remarked that he
would review each employee's situation to determine if
individual wage increases were needed, and grant them
where needed.'9 I find that the four employees listening
to President Green were likely to conclude that, if they
and most of their fellow employees voted against union
representation, there would be a reward of increased
wages from Respondent. I find, therefore, that President
Green's remarks violated Section 8(a)(1) of the Act.
On September 18 and 19, 1978, Vice President Steven
Green, acting on Ellie Brothag's admitted direction, sta-
tioned himself near employee Raymond Norris' work-
place for the express purpose of keeping Norris under
surveillance. Indeed, Brothag testified that she wanted
Vice President Green "to contain Ray Norris to his
welding department." However, whenever Norris left his
work station, Vice President Green followed. In the
course of the 2 workdays Vice President Green rarely
left Norris alone.
There can be little doubt that Respondent knew that
Norris was an AIW activist. AIW notified President
i9 My findings regarding this incident are based on Ray Norris' testi-
mony.
LYMAN STEEL COMPANY 303
Richard Green in 1977 that Norris was a member of its
organizing committee. Further, the record shows that
Norris continued to solicit employee support for AIW at
the plant in 1978. Considering Respondent's hostility
toward AIW, and management's repeated attempts to in-
terfere with employee discussions of AIW on its prem-
ises, I find that the purpose of Vice President Steven
Green's surveillance was to further interfere with such
conversations. I find, therefore, that, by this surveillance,
Respondent violated Section 8(a)(1) of the Act.
In the spring of 1978, Respondent issued work rules
which prohibited its employees from: "Selling, soliciting
or raising contribution, unless authorized." In his testi-
mony, President Richard Green conceded that "it is a
violation of [the quoted rule] for an employee to be so-
liciting union cards on his own time in the plant during
the work day." Later in 1978, Respondent replaced this
rule with a new rule which prohibits: "Selling, soliciting
or raising contributions during working hours."
The General Counsel contends that the first of the
above-quoted prohibitions is overly broad and that by its
maintenance Respondent violated Section 8(a)(1) of the
Act, notwithstanding that since its promulgation Re-
spondent had issued a lawful rule. Respondent urges a
finding of no violation on the grounds that while the
quoted rule might have been unlawful it was not en-
forced and further that a new "unquestionably valid"
rule has supplanted it. I find that both rules are unlawful.
The Board, in Essex International, Inc., 211 NLRB
749, 750 (1974), declared the following policy regarding
no-solicitation rules aimed at employees:
A rule prohibiting solicitation during "work
time" or "working time" is, in our opinion, suffi-
ciently clear to employees to justify requiring the
party attempting to invalidate the rule to show, by
extrinsic evidence, that, in the context of a particu-
lar case, the rule was communicated or applied in
such a way as to convey an intent to restrict or pro-
hibit solicitation during breaktime or other periods
when employees are not actively at work. On the
other hand, in our opinion, a rule probibiting solici-
tation during "working hours" is prima facie suscep-
tible of the interpretation that solicitation is prohib-
ited during all business hours and, thus, invalid. We
would therefore require the employer to show by ex-
trinsic evidence that, in the context of a particular
case, the "working hours" rule was communicated or
applied in such a way as to convey an intent clearly to
permit solicitation during breaktime or other periods
when employees are not actively at work [Emphasis
supplied.]
Measured against the Board's standard, both rules are
overly broad and therefore prima facie invalid. In de-
fending its rules, Respondent has failed to show that it
affirmatively communicated to its employees, or demon-
strated by application of the rules, that they were free to
engage in solicitation during breaktime or other periods
when Respondent, by promulgating and maintaining
these two overly broad no-solicitation rules, violated
Section 8(a)(l) of the Act. Birmingham Ornamental Iron
Company, 240 NLRB 898 (1979). That no employee suf-
fered punishment or that employees in fact solicited on
Respondent's premises during breaks or other nonwork-
ing time does not satisfy the Board's rule. The operative
fact is that Respondent never communicated to its em-
ployees that they were free to engage in solicitation
while not actively working. See Allis Chalmers Corpora-
tion, 224 NLRB 1199, 1202 (1976). Instead the employees
were left to either abandon their Section 7 rights or
pursue them and assume the risk. See N.L.R.B. v. Walton
Mfg. Co., 289 F.2d 177, 180-181 (5th Cir. 1961).
Approximately 2 weeks prior to the Board-held repre-
sentation election of September 22, 1978, President Rich-
ard Green held "a series of coffee sessions" with groups
of employees in Respondent's coffeeroom. President
Green testified that he "outlined [Respondent's] benefits,
the [Respondent's] policies." He also asked them to "sup-
port" Respondent. President Green testified that he
probably assured his listeners that they did not need a
union. He told them that Respondent had good benefits.
President Green also asked the employees why they
wanted a union to represent them. By the time of these
meetings, Respondent's union animus had surfaced at the
plant in the form of the various unfair labor practices
found elsewhere in this Decision. In this setting, Presi-
dent Green's question designed to ferret out the employ-
ees' union sentiments was coercive. Accordingly, I find
that, by President Green's questions, Respondent again
violated Section 8(a)(1) of the Act.
C. Discrimination
1. Ron Marek
(a) The Facts20
Respondent hired Ron Marek in June 1977 and dis-
charged him on May 18, 1978. At the time he was hired,
Respondent's management told Marek to refrain from
talking to AIW supporters and to vote for Local 436.
Respondent's management also warned Marek that he
would lose his job if he did not vote as instructed. In late
1977 Vice Presidents Ellie Brothag and Steven Green in-
duced Marek and Marek's cousin, Charles Rankin, to
provoke a fight with David Ciprian. In early December
1977, Marek and Rankin threatened and attacked David
Ciprian. Later in December 1977, Vice President Green
urged Marek and Rankin to physically attack employees
DeFoor and Norris because they supported AIW. There
is no showing that Marek or Rankin did so.
On January 30, 1978, Marek was injured on the job.
He returned to work in April 1978. As found above, ap-
proximately 2 weeks after he returned to work, Vice
President Brothag asked him if he had signed an AIW
authorization card. On May 4, Marek signed an AIW
card following his return to work. Ellie Brothag and
Steven Green warned Marek not to talk to employees
Norris, Gray, and Green. All three were AIW support-
ers. By May 5, 1978, Respondent was aware of their
AIW activities.
20 There are no substantial issues of credibility presented regarding the
recitation of facts leading up to Marek's discharge, except as noted. I
based my findings on Marek's testimony.
LYMAN STEEL COMPANY
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On that date, Respondent received a mailgram from
AIW listing Marek as a member of AIW's organizing
committee at Respondent's plant. After Respondent had
received this mailgram, Brothag admittedly sought out
Marek in the plant and "asked him why." Brothag also
expressed her recollection that Marek had assured her
that he would never sign such a card. She added: "At
least you could have given us a chance." She also
warned that he would "be sorry for this."
Following his return to work in April, and until May
5, Respondent assigned an average of 6 hours per week
of overtime to Marek. However, on and after May 8,
and until his discharge, on or about May 18, Respondent
assigned no overtime to Marek. Indeed, on or about May
8, Brothag and Steven Green told him that his overtime
"was cut."
During the final week of Marek's employment Vice
President Brothag and Supervisor John Urschalitz
warned him to stay in the EDM room and to stop talk-
ing to AIW supporters, Norris, Gray, and Green.2 ' On
May 12 Respondent issued a written warning complain-
ing of Marek's inattentiveness to the EDM machine.
Marek testified that he had been inattentive as asserted in
the warning.
On May 18, 1978, Marek arrived at work to find a
large puddle of oil flowing from his electric discharge
machine.2 2 After Marek cleaned up the oil, both Ellie
Brothag and President Richard Green told him that he
was fired. Marek protested that similar incidents had
happened before without discharge resulting. President
Green responded: "I don't have anything against you. I
just don't want you here." At this point, Marek left. 23
The following day, at Vice President Brothag's sug-
gestion, Marek went to President Green's office. Marek
complained to Green that other employees had caused
oil leaks from the EDM machine and had not been fired.
President Green did not rebut Marek's assertion. Instead,
he offered to obtain employment for Marek as a welder.
Green explained that he did not want Marek working for
Respondent. President Green tried to persuade Marek to
take the job as a welder. Marek neither sought nor took
the job suggested by Green.
On direct examination, Marek testified that, on the
evening of May 17, he checked his EDM machine and
closed all of its valves. He also testified that, before leav-
ing, he noticed Supervisor Urschalitz near the EDM ma-
chine. However, there is no showing that he protested
his discharge to President Green or Respondent's other
officers on and after May 18 on the ground that Urscha-
litz tampered with his EDM machine. Indeed, under
cross-examination, Marek expressed doubt as to whether
21 John Urschalitz, who was a supervisor during the period involved
in Marek's discharge, testified that, after Marek returned to work in 1978,
he was frequently away from the EDM machine talking to persons pass-
ing by. However. Urschalitz did not contradict Marek's testimony that
Urschalitz and Brothag had warned Marek not to talk to AIW activists,
Norris, Gray, and Green.
22 1 find from President Green's testimony that this machine is used to
punch holes in steel.
23 On cross-examination, Marek denied telling President Green that
other employees had suffered oil leaks before. However, at that point,
Marek seemed anxious, went on the defensive, and seemed to be embel-
lishing his original account, which had been given in a forthright aniswer
on direct examination.
such a protest would have had any effect on his tenure.
Nor am I persuaded that on May 18 and 19 Marek told
President Green or Vice President Brothag that he had
checked the valve and ascertained that it was shut down
before leaving work on May 17. Although Marek testi-
fied on cross-examination that he did make such a claim
to Respondent's management, Marek did so in an uncer-
tain manner. I have also noted his neglect to include an
account of such a report either in his direct testimony re-
garding conversations with President Green and Vice
President Brothag on May 18 and 19 or in a pretrial affi-
davit.
It appears that other EDM operators suffered oil leaks
earlier than Marek without repercussions from Respond-
ent's management. Terry McConnell, an EDM operator
in Respondent's employ from February 1973 to June
1977, testified credibly that he experienced frequent oil
leaks from the EDM machine ranging from I gallon to
100 gallons. The larger spills covered the floor of the
EDM room. Respondent did not discipline McConnell
for any of his leaks. EDM operators Ulysses Butler and
Joe White experienced oil spills without receiving any
discipline from Respondent. White's spill occurred over-
night, filled the EDM room floor, and extended beyond
the room. I also find from employee Ray Norris' uncon-
tradicted testimony that EDM leaks were not rare and
that except for Marek no EDM operator suffered punish-
ment because of such a leak. President Green also con-
ceded that prior to Marek's discharge other employees
had permitted oil to leak from the EDM machine and
had not suffered any discipline at Respondent's hands.
President Green was uncertain as to whether one such
employee, whose name he could not remember, had been
given "time off."2 4
(b) Analysis and conclusions
The General Counsel contends and Respondent denies
that it deprived Marek of overtime on and after May 8,
1978, until his discharge 10 days later, in reprisal for his
announced support of AIW. I find ample support for the
General Counsel's position. Marek signed an AIW card
on May 4, 1978. On May 5, Respondent received word
from AIW that Marek was in the forefront of its organiz-
ing effort. That same day, Brothag warned that Marek
would "be sorry" for supporting AIW. On May 8, she
and Steven Green told Marek that his overtime was cut.
Thereafter, in contrast to his enjoyment of substantial
amounts of overtime prior to May 8, 1978, he received
none. In its brief, Respondent proffered no explanation
for this change in Marek's fortune. Nor did Respondent
offer testimony or records to rebut Marek's testimony. In
sum, the timing of the shutoff of Marek's overtime, so
soon after Ellie Brothag's threat, leaves little doubt that
24 Urschalitz testified that he thought that there had been "a couple"
when asked if there had been other EDM oil leaks by other employees.
He also testified that the loss in each instance "was a few buckets." Urs-
chalitz' experience with Respondent dated back only to June 1977. Terry
McConnell and Raymond Norris were employed by Respondent for 4
years and 4 months and 6 years and 7 months, respectively Aside from
their longer experience with Respondent, I noted that Terry McConnell
and Raymond Norris seemed more certain of their assertions Urschalitz
used imprecise terms, i.e., "a couple" and "a few buckets." which added
to my impression of uncertainty.
LYMAN STEEL COMPANY 305
Respondent used its economic leverage to punish Marek
for becoming an AIW supporter. I find therefore that by
depriving Marek of overtime on and after May 8, 1978,
Respondent violated Section 8(a)(3) and (1) of the Act.
There can be little question of Respondent's hostility
toward Marek in early May because of his apparent
change of heart toward AIW. Upon learning of Marek's
alignment with AIW, Brothag warned him: "You'll be
sorry for this." This warning, reflecting Brothag's and
Respondent's intentions to punish Marek, violated Sec-
tion 8(a)(l) of the Act. A further circumstance which
supports the General Counsel's contention is the timing
of the discharge only 10 days after Respondent discov-
ered Marek's pro-AIW sentiment. Finally, uncontradict-
ed testimony shows that, while other employees were re-
sponsible for serious oil spills from Respondent's EDM
machine, only Marek suffered discharge. This disparate
treatment of Marek, together with its timing so close
upon Respondent's threat of reprisal because he became
an AIW advocate, provides strong support for the Gen-
eral Counsel's contention that Marek suffered discharge
for that reason.
President Richard Green testified that he fired Marek
because of the large overnight leakage of oil caused by
Marek's negligence, plus warnings Marek had received
for not being attentive to his EDM machine. Green
called the leakage a catastrophe unique in Respondent's
history. President Green also testified that Marek's union
affiliation "was the last thing on [his] mind when [he]
fired [Marek]. In light of the other evidence bearing
upon the question of why Respondent discharged Marek,
I have rejected this explanation.
Although President Green termed Marek's oil leak to
be a "catastrophe," there was no showing that it was
worse than the worst of the spills testified to by wit-
nesses Terry McConnell and Raymond Norris. Nor did
Respondent produce any data comparing the production
losses or losses experienced from other leaks to Marek's
leak. In light of all of the credited testimony, including
that of President Green showing that at most only a sus-
pension was meted out as punishment for EDM oil leaks,
the word "catastrophe" seems inadequate to rebut the
evidence showing that Marek had suffered disparate pun-
ishment. Granted that the warning of May 12 was for
good cause, the earlier warnings were directed at thwart-
ing Marek's discussions of AIW with leading AIW em-
ployee activists. These earlier warnings which I have
found to be violative of Section 8(a)(l) of the Act pro-
vided further evidence of Respondent's general union
animus, and of its unsuccessful attempts to persuade
Marek to reject AIW.
Nor am I persuaded that the news of Marek's active
support for AIW played no role in Richard Green's deci-
sion to fire Marek. The AIW mailgram announcing
Marek's activities on behalf of AIW was addressed to
President Green. When asked if he was aware at the
time of his decision that Marek had joined AIW, Green
answered, "Not really." Yet on the very day that revela-
tion dropped in on President Green, his close associate,
Vice President Brothag, learned of it and threatened
Marek with reprisal because of his support for AIW. The
record also shows that President Green was himself ac-
tively hostile to AIW. His coercive interrogation of em-
ployees regarding their union sentiment and his participa-
tion in the unlawful constructive discharge of AIW ac-
tivist Raymond Norris showed his willingness to engage
in unfair labor practices to defeat union organizing ef-
forts among his employees.
In sum, I do not credit President Green's explanation
for his decision to discharge Marek. In rejecting his testi-
mony in this regard, I have noted his evasiveness and
hostility while under the General Counsel's examination.
I find, contrary to Respondent's position, that a prepon-
derance of the evidence shows that President Green used
the oil leak as a pretext for discharging Marek. I also
find that the actual reason for Marek's discharge was his
switching allegiance to AIW. I find, therefore, that by
discharging Marek on May 18, 1978, Respondent violat-
ed Section 8(a)(3) and (1) of the Act.
2. James Green
(a) The Facts2 5
Respondent employed James Green as a burner from
January 1974 until his discharge on August 7, 1978. On
April 27, 1977, Green executed an AIW authorization
card. In May 1977 Vice President Steven Green told
James Green that it would be to the employees' advan-
tage to support "the Teamsters Union." In the afternoon
of that same day, Steven Green gave $100 to James
Green. Vice President Green also told employee James
Green that "once the Teamsters got in, the $200 would
be coming."
Respondent first imposed discipline on James Green
on April 14, 1978. On that occasion, employee Green re-
fused to comply with Vice President Brothag's direction
to train employee Dan Jereb to use a machine. That
same day, Respondent imposed a 1-day suspension on
employee Green.
Notwithstanding Vice President Green's advice, on
May 1, 1978, James Green executed a second AIW au-
thorization card. Also, AIW's mailgram of May 5, 1978,
directed to Respondent, listed employee James E. Green
as a member of AIW's organizing committee.
As previously found, in its effort to interfere with
AIW's organizing effort, in May 1978, Vice Presidents
Brothag and Green and Supervisor Urschalitz instructed
employee Marek not to converse with James Green. On
July 25, 1978, employee Byomin went to employee
James Green to borrow some devices known as "shoes"
to be used for lifting metal plates. I find from David
Byomin's testimony that, while he and Green were con-
versing, Vice President Brothag approached him and
said, "I don't want you talking to James Green ever.
There are other shoes on the other side of the shop."
On occasion, during May and June 1978, President
Green asked employee Enoch how James Green was
working. Presidents Green complained to Gray about
"little arguments" he and employee Green had about
work assignments. At one point, President Green said he
2 Except as noted, no substantial issues of fact were raised regarding
the circumstances leading up to James Green's discharge. I have based
my findings of fact on the testimony of James Green, Ronald Marek, and
David Byomin
LYMAN~ ST E COM AN 305
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was "sick and tired" of James Green, adding that he
wanted to "get rid of him." 26
On May 15, 1978, President Richard Green pressed
James Green to train employee Dan Jereb on the same
machine upon which James was then working. James re-
fused the request on the ground that that machine was
not his usual work and he was not being paid the wages
usually paid to the operator of that machine. Upon hear-
ing employee Green's refusal, President Green said that
he understood that James Green had been late again that
morning. James Green denied that he had been late.
Richard Green said, "Well I was told that you were, and
I am going to give you a written reprimand for it."
President Green also remarked that James Green had
once before visited the National Labor Relations Board
and the Civil Rights Commission. He told Green: "If
you feel you have to go down again, go ahead." That
same day, Respondent imposed a -day suspension upon
employee James Green.
On August 7, 1978, Supervisor John Urschalitz in-
structed James Green to pull "drops," which are por-
tions of heavy steel plates, to be worked on by other
burners. However, James Green believed the drops were
in precarious positions and might fall upon him. He de-
cided that the assignment was "too much for one man to
handle" and refused repeated requests to move the steel.
After Urschalitz had failed to persuade employee Green
to do the work, President Richard Green intervened.
When James Green again refused, President Green told
him that if he believed the assigned work was too dan-
gerous that he should consider himself terminated. James
Green left the plant.
On the following day, Vice President Ellie Brothag in-
vited James Green back to the plant to discuss his dis-
charge with President Green. James Green returned that
day and, in the discussion which ensued with President
Green, he again refused the assignment of moving the
steel plates. James Green asserted that he wished to keep
his job, but that he would not move the steel plates be-
cause of the danger he perceived. President Green then
stated that James Green remained discharged.
There was conflicting testimony regarding the danger
to James Green. Ray Norris, a 6-year employee, ob-
served the pile of steel plates which included the plate
which Norris was to move. Norris testified that he con-
sidered the situation to be "[vJery dangerous." In con-
trast, employee Karl Golias testified, on cross-exmination
by Respondent, that he did not consider the situation
confronting James Green as being abnormally dangerous.
Respondent's witnesses John Urschalitz and Willie Allen
concurred in employee Golias' appraisal. A further cir-
cumstance to be weighed was Urschalitz' uncontradicted
and credited testimony that, when James Green stated
that the assignment of pulling the plate was too danger-
26 President Green denied making these remarks. However, as Enoch
Gray impressed me as the more candid witness of the two, I have relied
on his testimony in finding that President Green made the quoted com-
ments. Further, in light of James Green's refusal of two training assign-
ments in April and May 1978, it was likely that President Green ex-
pressed annoyance toward him in the context of remarks about employee
Green's work.
ous, Urschalitz' offered to assign another employee to
assist Green.2 7 Yet, Green persisted in his refusal.
(b) Analysis and conclusions
The General Counsel contends that Respondent sus-
pended James Green's employment for I day on May 15
and, later, on August 7, discharged him because he sup-
ported AIW. In agreement with Respondent, I find that
the record does not support the General Counsel's posi-
tion.
Despite my impression that Respondent was hostile
toward James Green because he supported AIW, that in-
gredient did not motivate Respondent on May 15 and
August 7, 1978. Instead, I find employee Green provided
Respondent with just cause to punish him on May 15
and again on August 7.
Another factor weighing against the General Counsel's
case is the Respondent's forbearance. In the first in-
stance, Respondent did not seize on the May 10 refusal
of an assignment to get rid of James Green. Instead,
President Green only suspended him for 1 day. In the
second incident, Respondent gave Green two opportuni-
ties to change his mind. When he did not do so, Re-
spondent terminated him. Respondent's conduct was not
that of one anxious to be rid of an employee. Instead,
Respondent made serious attempts to avoid terminating
James Green.
The record does not persuade me that Respondent re-
sorted to pretext or singled James Green out for special
treatment, either when it punished him for refusing to
train one employee in May, or when it discharged him in
August. There was no evidence that Respondent treated
James Green differently from other employees quilty of
misconduct similar to his. Nor was there any showing
that Respondent departed from its normal practices in its
treatment of James Green.
In sum, I find that General Counsel has not shown by
a preponderance of the evidence that employee James
Green suffered a I day-suspension and was thereafter dis-
charged because of his union activity. I shall therefore
recommend that the allegations regarding James Green's
suspension and termination be dismissed.
3. Enoch Gray
Respondent employed Enoch Gray from 1972 until
October 1978. As found above, in May 1977, Respond-
ent's management attempted to enlist Gray's support for
Local 436. Vice President Ellie Brothag urged Gray to
vote for Local 436. On May 3, 1977, Gray signed a
Local 436 authorization card. Vice President Steven
Green offered $200 to Gray if he would agree to vote
for Local 436. Soon after the offer, Vice President Green
gave Gray $200 and promised to pay him $250 more
after the election.
It is Respondent's policy to withhold holiday pay from
an employee who is absent either a day before a holiday
or on the day after the holiday. In 1977, employee
Enoch Gray was absent on the day after July 4. Never-
27 Urschalitzs detailed testimony presented a logical and reasonable se-
quence of remarks. He also appeared to be giving his full recollection.
LYMAN STEEL COMPANY 307
theless, Ellie Brothag came to him at the plant and paid
him for July 4 and 5.
In 1978, Gray supported AIW. On May 2, 1978, Gray
signed an AIW authorization card. Respondent received
AIW's mailgram 3 days later, listing Enoch Gray as a
member of AIW's organizing committee.
As found above, Respondent's first reaction to Enoch
Gray's change of heart occurred on May 15, 1978, in a
confrontation with Vice President Ellie Brothag.
Brothag threatened Gray with punishment because he
had become an AIW supporter.
In less than 2 weeks, Gray gave Respondent an oppor-
tunity to implement Brothag's warning. Later in May
1978, Enoch Gray asked President Green to permit him
to take a vacation to begin on Friday, May 26, and
extend 1 day beyond Memorial Day, which fell on
Monday, May 29. President Green refused Enoch Gray's
request and Respondent did not pay him for the Memori-
al Day holiday. Thus, unlike 1977, when Respondent de-
parted from its holiday policy in an effort to reward
Gray for apparently adhering to Local 436, Respondent
enforced its policy in 1978 after Gray had changed his
allegiance to AIW. The explanation for this change in
treatment was provided by the implied threat of reprisal
which Brothag leveled at Gray on May 15, 1978. I find
it likely that her warning reflected the union animus of
President Green who had received the AIW mailgram
listing Gray as an AIW activist, on or about May 5,
1978. I find, therefore, that Respondent, by withholding
Gray's 1978 Memorial Day holiday pay, punished him in
violation of Section 8(a)(3) and (1) of the Act.
4. Raymond Norris
(a) The facts
Respondent employed Raymond Norris as a welder
from April 1972 until September 25, 1978. Raymond
Norris was one of the employees who met with AIW
Representative Nick Serraglio, along with several other
employees, on April 26, 1977, to initiate AIW's organiz-
ing drive at Respondent's plant. Raymond Norris signed
an AIW authorization card on April 27, 1977. On or
about April 28, 1977, Respondent received an AIW mail-
gram announcing that Raymond Norris and other named
employees were members of AIW's organizing commit-
tee.2 8
In December 1977, or early January 1978, Vice Presi-
dent Steven Green revealed Respondent's hostility
toward Ray Norris. During that period, Vice President
Green suggested to employee Marek ways and means of
getting rid of Norris, including physical attacks and
doing damage to Norris' automobile. There is no show-
ing that Marek or his cousin, Charles Rankin, or any
other employee carried out the suggested attacks on Ray
Norris. 29
Ray Norris was active on behalf of AIW in 1978. In
early May he solicited employee signatures on AIW au-
thorization cards at the plant. He obtained signed cards
a8 My findings regarding Norris' employment history and union activi-
ty are based on his uncontradicted testimony and exhibits.
*' My findings regarding Vice President Green's attempts to harass
Norris are based on Ronald Marek's testimony.
from employees Ronald Marek, James Green, Ulysses
Butler, Anthony J. Colonil, Alan Cross, Ronnie Sum-
mers, Gregory Shehee, Nick Bertovich, and Enoch
Gray, Jr., at Respondent's plant.
As found above, on or about May 3, 1978, employee
Richard Hlad signed an AIW card and returned it to
Ray Norris. Also, as found above, approximately 30 min-
utes later, Vice President Brothag approached Hlad and
instructed him to get his signed card back from Ray
Norris. Brothag told Hlad that Norris "is no good" and
that Norris "would get [Hlad] in trouble." She warned
Hlad to "stay away from [Norris]." Brothag also direct-
ed Hlad to sign a written statement accusing Norris of
soliciting Hlad's signature on the authorization card "on
Company time."
As found above, in September 1978, Vice Presidents
Steven Green and Ellie Brothag warned employee Hlad
that, if AIW were successful in the coming representa-
tion election, Respondent would terminate Ray Norris.
On June 22, and again on June 24, 1978, Vice Presi-
dent Steven Green asked employee David Byomin
whether Ray Norris spoke to him about AIW during
worktime. Shortly after this incident, Ray Norris' name
again came up in a conversation between Ellie Brothag
and employee Byomin regarding the union campaign. In
the spring or summer of 1978 Ray Norris successfully so-
licited Byomin's signature on an AIW authorization card.
On July 20, 1978, Supervisor John Urschalitz issued a
written reprimand to Ray Norris which declared:
This is the fourth reprimand for failure to report
that you would not be in to work.
You will be advised what day you will have off,
without pay.
However, Respondent did not impose the -day layoff
until 2 days before the scheduled Board-held election.
On September 19, President Richard Green gave Norris
written notification that his -day layoff without pay for
the four reprimands would occur on September 20, 1978.
Further insight into Respondent's attitude toward Ray
Norris was provided on direct examination by the testi-
mony of Vice President Brothag. When asked to testify
regarding Norris' activities on behalf of AIW within the
"last few weeks prior to the second election," Vice
President Brothag testified as follows:
I would frequent the shop and many days-and this
would be almost everyday-I could see Ray Norris
sneaking up around the place way on the other side
of the shop.
And I even mentioned it to him one time, I asked
him where he was going, and he did say to the rest
room.
And I said, "Oh there is one back there."
And then this would be every day. So finally I
couldn't contain him to the welding department, so
I asked Steve Green to go out and sit at a burning
table to contain Ray Norris to his welding depart-
ment.
LYMAN STEEL COMPANY
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 18 and 19, Vice President Steven Green
kept Norris under surveillance as instructed by Brothag.
On or about September 9, 1978, President Richard
Green asked Ray Norris to take a 2-week vacation
which would have included September 22, 1978, the day
of the Board-held election. However, Norris refused,
stating that he planned to take his vacation in November
and December 1978.
On September 21 and 22, Supervisor Urschalitz in-
structed Norris to use the bathroom in the back of the
shop, closer to Norris' work station. Prior to these
instructions Respondent kept that facility locked.
The poor condition of the back bathroom was de-
scribed by employee Norris. One of the two toilets was
"stopped up," the second toilet had a broken seat, and
the floor had an accumulation of unpleasant smelling
water.
Ray Norris was the AIW's observer at the Board-held
election at the Respondent's plant on September 22,
1978. On the morning of the next working day, Monday,
September 4, Norris arrived at work. When he went to
the timeclock to punch in, he found his timecard missing.
He noticed a tornup timecard on the floor. He discov-
ered that it was his. Norris then went to the locker
room, where he discovered that his work clothes, two
pairs of workshoes, and his glasses were missing from his
locker. He also noticed ashes from papers that had been
burned in the bottom of his locker. Attached to the
inside of his locker was a piece of a brown paper bag on
which were inscribed in black obscene references to
Norris, "AIW out of the way," "Norris on his way out"
and "get out before you are carried out." At the bottom
was a tombstone shaped figure on which was inscribed:
"Ray Norris had no hair rest in peace 9-22-78 AIW."
Norris immediately reported to Vice President
Brothag. I find from Norris' testimony that he told
Brothag that his locker had been broken into, that his time-
card, work shoes, and glasses were gone and that he
could not work without the shoes and glasses. Brothag
responded: "I don't know anything about it." Norris said
that he could not work without the missing items. 30
Norris left the plant and went home.
On Tuesday morning, September 25, Norris tele-
phoned Vice President Brothag to set up a meeting with
President Green. On Brothag's instruction, Norris ar-
rived at the plant at 8:30 that same morning. After
Norris told President Green of his misfortune, Green
said, "I thought you came in here to talk to me about
quitting." Norris denied that he intended to quit, adding
that he could not work without his glasses or workshoes.
President Green responded that he, Green, had no
control over the other employees, their actions, or their
feelings towards Norris. Norris insisted he could not
work under such conditions. He added that he wanted to
take an immediate 2-week vacation, during which he
hoped that "things will cool off and I will come back to
work and it will be alright." President Green rejected
Norris' suggestion, stating: "No, you will take a week off
in November and one in December."
3o Brothag did not dispute Norris' testimony.
At this point, Vice President Steven Green arrived
and joined the discussion. He began to criticize Norris'
work performance. Vice President Green complained
that Norris did not work "more than 40 to 50 percent of
the time." He also charged Norris with poor workman-
ship and accused him of excessively roaming around the
plant.
Norris turned to President Green and protested that
he, President Green, had pressed Norris to take a 2-week
vacation earlier in September, before the Board election.
When Norris looked at his watch, Vice President Steven
Green stated, "Well, I guess I'm boring you. Why don't
you quit?" At this, Norris turned to Green and said, "If
you can't straighten it out so I'm able to work, give me
my vacation pay and I will quit." President Green gave
Norris the requested vacation pay and Norris quit.
(b) Analysis and conclusions
The General Counsel contends that "based on the Re-
spondent's knowledge, animus, and reaction to Norris'
predicament, a finding of an unlawful constructive dis-
charge in violation of Section 8(a)(1) and (3) of the Act
is warranted." (G.C. br., p. 14.) Respondent argues that
Norris' decision to terminate his employment "can in no
way be said to be the fault of the Respondent or a viola-
tion of Section 8(a)(3)." 3 1 I find merit in the General
Counsel's contention. By refusing Raymond Norris' re-
quest to take a 2-week vacation, Respondent sought to
confront Norris with no alternative but to quit. Respond-
ent's treatment of Norris' request was motivated by
union animus and therefore was violative of Section
8(a)(3) and (1) of the Act.
Ray Norris' union activity is amply shown. He partici-
pated in the original organizing campaign beginning on
April 26, 1977, when he met with an AIW representative
and signed an AIW authorization card. On the following
day, AIW notified President Richard Green that Ray-
mond Norris was a member of AIW's organizing com-
mittee. Thereafter, in 1978, Ray Norris continued to so-
licit signatures of his fellow employees on AIW authori-
zation cards. Finally, at the election on September 22,
Ray Norris acted as AIW's observer.
Also made plain was Respondent's knowledge of
Norris' leading role in AIW's campaign and Respond-
ent's hostility toward Norris because of his union activi-
ty. Vice President Green expressed a strong desire to get
rid of Norris and sought the assistance of employees to
persuade Norris to leave. Vice President Green also
threatened Norris' discharge if the Union lost the second
election. Vice Presidents Green and Brothag interrogat-
ed employee Byomin regarding Norris' AIW activity.
Respondent endeavored to prevent Norris from helping
AIW by keeping him under surveillance on September
18 and 19, 1978. With similar intent, Respondent belated-
31 In its brief (Resp. br., p. 25 fn. 5), Respondent moves for an order
striking Ray Norris' testimony on direct examination and for dismissal of
this portion of the complaint on the ground that I precluded Respond-
ent's cross-examination of Ray Norris. Upon thoroughly reviewing the
transcript, I could find no evidence that Respondent's counsel was pre-
cluded from cross-examination of Ray Norris. Indeed, at page 381 of the
transcript, I expressly invited Respondent's counsel to cross-examine the
witness further if he wished.
---
LYMAN STEEL COMPANY 309
ly imposed suspension on Norris but 2 days before the
election and 2 months after the Respondent had repri-
manded him and warned that such punishment was in
the offing.
Respondent seemed to welcome Norris' misfortune as
an opportunity to get rid of him. Respondent's reaction
to Norris' report, that he had lost both pairs of work-
shoes and his glasses and could not work, was less than
sympathetic. Ellie Brothag upon hearing of Norris'
plight said she knew nothing about it and was content to
watch a 6-year employee leave the plant. When Norris
appeared at the plant on September 25, President Green
revealed Respondent's attitude when he stated in essence
that he thought Norris was coming to notify Respondent
that he was quitting. Later that same morning, Vice
President Steven Green gave voice to a similar sentiment
when he suggested that Norris quit his job.
The best opportunity to get rid of Norris occurred
when Norris complained that he could not work because
he had lost his glasses and his work-shoes. At that point,
President Green declared that he had no control over
Norris' fellow employees or their actions toward Norris.
This suggested that Respondent could do nothing to pre-
vent recurrence of similar losses of property or other
employee actions against Norris himself. When Norris
expressed apprehension about working in this hostile at-
mosphere and asked for a 2-week vacation to let things
"cool off," President Green refused. Thus was Norris
faced with a choice of either going back to work in the
dangerous environment or quitting his employment. At
this point, Vice President Green added to the hostile at-
mosphere surrounding Norris by criticizing his work and
his performance in general and then suggesting "why
don't you quit?" When Norris appealed to President
Green saying, "If you can't straighten it out so I am able
to work, give me my vacation pay and I will quit,"
President Green jumped at this opportunity and gave
him his vacation pay. Against the backdrop of Respond-
ent's stated hostility toward Norris because of his AIW
activity, I find that Respondent was glad to exploit
Norris' misfortune as an opportunity to get rid of a trou-
blesome AIW supporter.
Respondent urged rejection of the General Counsel's
contention on the ground that Respondent bears no re-
sponsibility for Norris' decision to quit. In support of its
position, Respondent explained that Norris had decided
to quit if AIW lost the election and carried out his deci-
sion when Respondent rejected his vacation request. I
find no merit in this explanation.
That Norris may have expressed to fellow employees
an intent to quit if AIW lost the September 22 election
does not assist Respondent's defense. For, on September
25, when President Green asked him if he was coming to
the plant to discuss quitting, Norris replied, "No, but I
can't work." Norris went on to complain of the loss of
his shoes and glasses, which losses made it impossible for
him to work. For his part, President Green did not offer
Norris any time to obtain replacements. Nor did Green
otherwise encourage Norris to return to work. Instead,
President Green held himself and Respondent aloof from
Norris' plight. President Green added to Norris' burden
by suggesting that Norris was in constant danger from
his fellow employees and that Respondent could do
nothing to protect him. Not until he found himself con-
fronted with an immediate return to the harsh danger
raised by President Green's remarks did Norris talk of
quitting. Norris said he would return to work if Presi-
dent Green would do something to enable him to work.
Instead of attempting to allay Norris' fears, Green
handed him his vacation pay. Thus, far from showing
that Norris intended to quit, the exchange between Presi-
dent Green and Norris on September 25 showed beyond
question that Norris wanted to return to his job and that
Respondent did not want him to do so.
Also wanting in merit is Respondent's attempted expla-
nation of its refusal to grant Norris' request for a 2-week
vacation. Respondent's asserted ground for refusing that
request was that Norris was its only welder and could
not be spared. Initially this explanation suffers from the
infirmity of being an afterthought, raised for the first
time before me. For there is no showing that either
President Richard Green or Vice President Steven
Green offered this explanation to Norris on September
25, when he asked for an immediate vacation.
President Green's attempt to persuade Norris to take a
2-week vacation, beginning approximately 16 days prior
to Norris' request, casts further suspicion upon the
claimed necessity for Norris' continued presence at the
plant during the 2 weeks following September 25. Aside
from President Green's testimony that Norris could not
be spared, there was no showing that as of September
25, 1978, Respondent's expected workload for the period
covered by Norris' request would have been any greater
than it had been during the period suggested by Presi-
dent Green approximately 16 days earlier.
In any event, the fatal blow to Respondent's defense
was that, after President Green denied his vacation re-
quest, Norris in effect withdrew it and stated his condi-
tional willingness to return to work. Norris was willing
to forego an immediate vacation if Respondent would
assure him a safe work environment. However, President
Green uttered not a word of hope for Norris. Thus
Norris quit, not only because Green denied his vacation
request, but also because of the implicit rejection of his
plea for security at his work station.
In sum, I find from the record as a whole that Re-
spondent constructively discharged Norris on September
25, 1978, in reprisal for his activities on behalf of AIW.
Accordingly, I find that Respondent thereby violated
Section 8(a)(3) and (1) of the Act.
D. Respondent's Refusal To Bargain With AIW
On or about April 30, 1977, Respondent received a
letter from AIW, dated April 27, 1977, demanding bar-
gaining and recognition. In its letter, AIW claimed ma-
jority status in a unit consisting of Respondent's produc-
tion and maintenance employees. Respondent has never
agreed to recognize AIW as the bargaining representa-
tive of its production and maintenance employees. As of
April 27, 1977, AIW enjoyed the support of a majority
of Respondent's 34 production and maintenance employ-
ees. On April 28, 1977, AIW filed its representation peti-
tion in Case 8-RC-10916, seeking an election in the fol-
LYMAN STEEL COMPANY
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lowing unit of employees at Respondent's Warrensville
Heights, Ohio, facility:
All production and maintenance employees and
truck drivers excluding all office clerical employees,
professional employees, guards and supervisors as
defined in the Act.
The parties have agreed that this unit is appropriate
for purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
Respondent contends that a bargaining order is unwar-
ranted on the following grounds: (a) AIW no longer rep-
resents a majority of the unit employees; (b) the miscon-
duct of AIW's supporters renders AIW unworthy of a
bargaining order; (c) Respondent's conduct in 1978 does
not preclude the holding of a third election; (d) AIW has
waived whatever entitlement it had to a bargaining
order; and (e) Respondent could not properly recognize
and bargain with AIW. For the reasons set out below, I
find no merit in Respondent's contentions and shall rec-
ommend imposition of a bargaining order.
Turning to the first ground urged by Respondent, I
note that in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575, 610 (1969), the Court reaffirmed, without qualifica-
tion, the settled principle that a bargaining order is not
rendered inappropriate by the circumstance that a union
has lost, or may have lost, its majority status between the
time of the commission of the employer's unfair labor
practices and the Board's decision. The Court stated (395
U.S. at 610-611):
Remaining before us is the propriety of a bargain-
ing order as a remedy for a §8(a)(5) refusal to bar-
gain where an employer has committed independent
unfair labor practices which have made the holding
of a fair election unlikely or which have in fact un-
dermined a union's majority and caused an election
to be set aside. We have long held that the Board is
not limited to a cease-and-desist order in such cases,
but has the authority to issue a bargaining order
without first requiring the union to show that it has
been able to maintain its majority status. See
N.L.R.B. v. Katz, 369 U.S. 736, 748, fn. 16 (1962);
N.L.R.B. v. P. Lorillard Co., 314 U.S. 512 (1942).
And we have held that the Board has the same au-
thority even where it is clear that the union, which
once had possession of cards from a majority of the
employees, represents only a minority when the
bargaining order is entered. Franks Bros. Co. v.
N.L.R.B., 321 U.S. 702 (1944). We see no reason
now to withdraw this authority from the Board. If
the Board could enter only a cease-and-desist order
and direct an election or a rerun, it would in effect
be rewarding the employer and allowing him to
"profit from [his] own wrongful refusal to bargain,"
Franks Bros., supra at 704, while at the same time
severely curtailing the employees' right freely to de-
termine whether they desire a representative. The
employer could continue to delay or disrupt the
election processes and put off indefinitely his obliga-
tion to bargain; and any election held under these
circumstances would not be likely to demonstrate
the employees' true, undistorted desires. 3 2
The Court, in Gissel, also rejected Respondent's sug-
gestion that to impose a bargaining order on employees
who may not desire AIW is an unnecessarily harsh
remedy that needlessly prejudices employees' Section 7
rights. (395 U.S. at 612.) The Court stated:
Such an argument ignores that a bargaining order is
designed as much to remedy past election damage
as it is to deter future misconduct. If an employer
has succeeded in undermining a union's strength
and destroying the laboratory conditions necessary
for a fair election, he may see no need to violate a
cease-and-desist order by further unlawful activity.
The damage will have been done, and perhaps the
only fair way to effectuate the employee rights is to
re-establish the conditions as they existed before the
employer's unlawful campaign. 3 3
Thus, for the reasons set forth in Gissel, supra, neither
employee turnover nor the lapse of time involved be-
tween AIW's acquisition of majority status on April 27
and the entry by the Board of an order to remedy Re-
spondent's unlawful conduct would bar an otherwise ap-
propriate bargaining order.
The incidents of misconduct, including obscenities, a
threat to Vice President Brothag's daughter, an abusive
letter addressed to Vice President Brothag, and other as-
serted incidents of apparent employee misconduct are
not to be condoned. However, I am not persuaded that
such incidents were sufficient to foreclose entry of a bar-
gaining order to remedy Respondent's unfair labor prac-
tices. There was no showing that AIW was responsible
for or condoned any of the incidents of misconduct set
forth in the record.
Respondent also claim that Local 436's attainment of
majority status soon after AIW had made its claim ex-
cused Respondent from recognizing AIW. However, as
there is no showing that Local 436 ever achieved an un-
tainted majority among its production and maintenance
employees, Respondent's claim is unsupported.
Not until May 14, 1977, did Local 436 obtain signed
authorization cards from 16 unit employees. Assuming
that there were 34 employees in the unit on that date,
Local 436 did not have majority support.3 4 Between
3Z The Court specifically noted that an employer's unlawful conduct
which causes an election to be set aside does more han simply delay his
bargaining obligation. The employer "can also affect the outcome of a
rerun election by delaying tactics, for figures show that the longer the
time between a tainted election and a rerun, the lesser are the union's
chances of reversing the outcome of the first election." 395 U.S. at 611,
fn. 30.
"3 The Court added (id. at 613): "There is, after all, nothing permanent
in a bargaining order, and if, after the effects of the employer's acts have
worn off, the employees clearly desire to disavow the union, they can do
so by filing a representation petition."
34 At the hearing, I did not receive a Local 436 authorization card
signed by Gregory J. Sheehy. Local 436 offered Sheehy's card and re-
quested a stipulation that the card was signed on May 10, 1977. Howev-
er, the General Counsel refused to enter into a stipulation on the ground
that the card signed by Sheehy gave as the date of signature 4-10-77, a
time, according to the General Counsel, when Sheehy was not Respond-
ent's employee.
Continued
- --- --- -
LYMAN STEEL COMPANY 311
January 27 and March 16, 1978, Local 436 obtained six
additional cards. Thus, as of March 16, 1978, Local 436
had 22 cards. The parties stipulated that there were 30
employees in the production and maintenance unit as of
May 5, 1978. Thus, assuming that the same number ob-
tained on March 16, 1978, Local 436 had a sufficient
number of cards to constitute a majority. However, that
majority was mortally tainted by Respondent in 1977.
As found above, in May 1977, Respondent's manage-
ment actively assisted Local 436's organizing campaign.
During that month, Vice President Richard Green of-
fered to pay employee Daniel Sheehan for signing a
Local 436 authorization card. Also, Vice President
Green solicited employee Robert Burnett's signature on a
Local 436 authorization card. Vice President Ellie
Brothag evidenced Respondent's favorable attitude
toward Local 436 when she told employee Verbic that if
he signed a card for Local 436, "the Company would
take care of [him]." Verbic followed Brothag's sugges-
tion. Vice President Green told employee Verbic to
punch out an hour early and to go to a Local 436 meet-
ing. The next day at Vice President Green's invitation,
Verbic appeared in his office, reported that he attended
the meeting, and received $4 in cash. Also in May 1977,
Vice President Green solicited employee James Green's
support for the Teamsters and paid him $100 to achieve
that end. At or about the same time, Vice President
Green told employee Enoch Gray that he would give
him $200 to vote for Local 436 and another $250 after
the election. In early May, Brothag encouraged Enoch
Gray to sign a Local 436 card. Gray signed a Local 436
athorization card on May 3, 1977. John Verbic signed a
Local 436 authorization on May 4, 1977. Daniel Sheehan
signed a Local 436 authorization card on May 13, 1977.
Finally, in September 1978, President Richard Green dis-
closed in talks to his employees that in 1977 Respond-
ent's management had asked employees to support Local
436.
Considering Respondent's considerable, unconcealed
assistance to Local 436's campaign, I find that the prof-
fered authorization cards are so tainted as to remove
them as the basis for claiming majority support. See Pro-
fessional Ambulance Service, Inc., 232 NLRB 1141, 1153
(1977).
Citing C. E. Collins, et al., d/b/a Collins Mining Co.,
177 NLRB 221 (1969), as authority, Respondent argues
that, by not alleging violation of Section 8(a)(5) in the
initial charges in this case and by its agreeing to the
second election, AIW waived any entitlement it might
have had to a finding that Respondent violated Section
8(a)(5) and (1) of the Act. I reject this unfounded conten-
tion.
The cited authority has no application here. In Collins,
the Board refused to find a violation of Section 8(a)(5)
Although received in evidence, Local 436's authorization card execut-
ed by Rufus Gray bears no date. Nor is there any testimony showing
when Gray signed the card. I have not counted Gray's card in determin-
ing when Local 436 obtained cards from a majority of the unit employ-
ees.
I have not counted an authorization card apparently signed by employ-
ee Terry L Smith which bears no date. I also noted that employee
Ronnie Summers signed one Local 436 authorization card on May 12.
1977, and a second Local 436 card on the following day
and () of the Act where it found no showing that a ma-
jority of the employer's employees supported the charg-
ing union's demand for recognition. Here, at the time
AIW first demanded recognition and bargaining, it en-
joyed the support of a majority of Respondent's produc-
tion and maintenance employees. Thereafter, AIW did
nothing to waive its entitlement to recognition as the
bargaining representative of Respondent's production
and maintenance employees.
The impact of Respondent's unfair labor practices
upon its 30 to 35 production and maintenance employees
was so pervasive as to deplete AIW's strength and make
it highly unlikely that the Board could conduct a fair
election among Respondent's employees. It is likely that
word of Respondent's many unfair labor practices, in-
cluding the constructive discharge of leading AIW advo-
cate Ray Norris, the discrimination against Enoch Gray
because of his activity on behalf of AIW, and the dis-
crimination against employee Ronald Marek also because
of his support of AIW, has reached many of the employ-
ees. These manifestations of animus toward AIW would
probably intimidate many, if not all, of the unit employ-
ees. Therefore, I find that AIW's authorization cards are
the most reliable indication of the desires of the unit em-
ployees concerning representation.
AIW obtained signed authorization cards from a ma-
jority of the employees in the appropriate unit by April
27, 1977, the date it demanded recognition, and was enti-
tled to such recognition on and after that date. Instead of
granting recognition, beginning in late November 1977,
Respondent engaged in a succession of unfair labor prac-
tices beginning with attempts to induce employees to
forcefully persuade AIW supporters to quit Respondent's
employ and ending with the constructive discharge of
AIW activist Norris on September 25, 1978. I find there-
fore that the Respondent violated Section 8(a)(5) of the
Act by its refusal to recognize AIW on and after April
24, 1978, which is the beginning of the 6-month period of
limitations provided by Section 10(b) of the Act. Chro-
malloy Mining and Minerals, Alaska Division, 238 NLRB
688 fn. 3 (1978); Howard Manufacturing Company, Inc.,
180 NLRB 220, 222 (1969).
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. AIW and Local No. 436, respectively, are labor or-
ganizations within the meaning of Section 2(5) of the
Act.
3. Respondent interfered with, coerced, and restrained
its employees in the exercise of rights guaranteed by Sec-
tion 7 of the Act, thereby committing unfair labor prac-
tices prohibited by Section 8(a)(1) of the Act by:
(a) Offering to pay and paying employees to threaten
and harass employees who supported AIW.
(b) Interrogating employees concerning their union
membership, activities, sympathies, and desires and the
union membership, activities, sympathies, and desires of
fellow employees, or of prospective employees.
(c) Threatening employees with plant closure, layoff,
discharge, stricter discipline, or other reprisals if they
LYMAN STEEL COMPANY
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supported AIW, associated with known AIW supporters,
or if AIW became their bargaining representative.
(d) Giving employees the impression that their union
activities were under Respondent's surveillance by con-
fronting employees with knowledge that they had signed
authorization cards in favor of AIW.
(e) Promulgating and maintaining unlawful no-solicita-
tion rules.
(f) Instructing employees not to discuss their union ac-
tivities or their union sentiments among themselves.
(g) Ordering employees to request the return of their
authorization cards from AIW.
(h) Directing employees to sign statements stating that
employees soliciting on behalf of AIW had done so
during working time.
(i) Giving employees the impression that their union
activities including voting in a Board-held election were
under Respondent's surveillance by telling employees
that they knew how employees voted in the Board's
secret-ballot election.
(j) Warning employees that employees who supported
AIW would be terminated.
(k) Maintaining surveillance of employees during
working hours to prevent employees from engaging in
discussions regarding AIW.
(1) Threatening that if employees engaged in an eco-
nomic strike, Respondent would replace them perma-
nently without hope of reinstatement.
(m) Promising an employee a wage increase if AIW's
organizing campaign failed.
4. Respondent assisted a labor organization in violation
of Section 8(a)(2) and (1) of the Act by promising an em-
ployee a cash payment if he would support Local 436.
5. Respondent violated Section 8(a)(3) and (1) of the
Act by discontinuing Ronald Marek's overtime and dis-
charging him, by refusing to pay employee Enoch Gray
his holiday pay for Memorial Day 1978, and by con-
structively terminating employee Ray Norris on Septem-
ber 25, 1978.
6. Since April 27, 1977, a majority of the employees in
the following appropriate unit employed at Respondent's
Warrensville Heights, Ohio, plant have designated AIW
as their exclusive representative in that unit for purposes
of collective bargaining:
All production and maintenance employees and
truck drivers excluding all office clerical employees,
professional employees, guards and supervisors as
defined in the Act.
7. Respondent, by refusing on and since April 24,
1978, to recognize and bargain with AIW as the repre-
sentative of its employees in the appropriate unit, has re-
fused and is refusing to bargain in good faith and thus
has committed, and is committing, unfair labor practices
prohibited by Section 8(a)(5) and (1) of the Act.
8. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
9. Respondent has not committed any unfair labor
practices except as noted above.
IV. REPORT ON OBJECTIONS AFFECTING THE RESULTS
OF THE SECOND ELECTION IN CASE 8-RC-10916
Having found that during the critical period between
the date of the first election, i.e., May 24, 1977, and the
date of the rerun election, September 22, 1978 (The
Singer Company, 161 NLRB 956 (1966); Goodyear Tire
and Rubber Company, 138 NLRB 453 (1963)), Respond-
ent violated Section 8(a)(l), (2), and (3) of the Act, it fol-
lows that the election must be set aside. Dal-Tex Optical
Company, Inc., 137 NLRB 1782, 1786-87 (1962); Leas &
McVitty, Incorporated, 155 NLRB 389, 390-391 (1965).
Accordingly, I shall recommend that the election held
on September 22, 1978, in Case 8-RC-10916, be set aside
and that the petition be dismissed.
V. THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices, I shall recommend
that it cease and desist therefrom and take affirmative
action necessary to effectuate the purposes of the Act. I
shall further recommend that Respondent be ordered to
offer employees Ronald Marek and Raymond Norris im-
mediate and full reinstatement to their former positions
or, if those positions are not available, to substantially
equivalent positions without prejudice to their entitle-
ment to overtime work, their seniority, or their benefits
and privileges. I shall also recommend that Respondent
be ordered to make employees Enoch Gray, Ronald
Marek, and Raymond Norris whole for any losses of pay
they may have suffered, by payment to each of them the
sums they would have earned but for the discrimination
against them. Such losses shall be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), plus interest as set forth in Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962), and Florida
Steel Corporation, 231 NLRB 651 (1977). I shall also rec-
ommend that Respondent be required to preserve and
make available to Board agents, upon request, all perti-
nent records and data necessary to analyze and deter-
mine whatever backpay may be due.
Having found that by April 27, 1977, a majority of Re-
spondent's employees in the appropriate bargaining unit
had authorized AIW to represent them in collective bar-
gaining with the Respondent, and having found that Re-
spondent committed serious and extensive unfair labor
practices so that it now seems unlikely, if not impossible,
that a fair election under Board auspices could be held, I
shall recommend that Respondent be required to recog-
nize and bargain with AIW as the representative of those
employees, effective the earliest date permitted under
Section 10(b) of the Act, which is April 24, 1978.
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 614
(1969); Chronalloy Mining and Mineral, Alaska Division,
238 NLRB 688, fn. 3 (1978); Howard Manufacturing
Company, Inc., 180 NLRB 220, 222 (1969).
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
LYMAN STEEL COMPANY 313
ORDER3 5
The Respondent, Nyman Steel Company, Warrensville
Heights, Ohio, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their member-
ship in, sentiment toward, and activities on behalf of In-
ternational Union, Allied Industrial Workers of America,
AFL-CIO, referred to herein as AIW, or any other
labor organization.
(b) Interrogating employees concerning the union
membership, union sentiment, or activity of fellow em-
ployees, or of prospective employees, on behalf of AIW
or any other labor organization.
(c) Engaging in surveillance of employees during
working hours at the plant for the purpose of interfering
with, restraining, and otherwise discouraging their dis-
cussion of matters pertaining to AIW or any other labor
organization.
(d) Giving employees the impression that the signing
of authorization cards for AIW or for any other labor
organization or their voting for AIW or any other labor
organization at a Board-held representation election or
any other union activity is known to Respondent and
being watched by Respondent.
(e) Threatening employees with plant closure, layoff,
stricter discipline, or other reprisals because of their sup-
port for AIW or any other labor organization.
(f) Offering to and paying employees money to threat-
en or harass fellow employees because they support
AIW or any other labor organization.
(g) Promulgating, maintaining, giving effect to, or en-
forcing an overly broad no-solicitation rule which tends
to inhibit employees from soliciting for AIW or any
other labor organization on Respondent's premises
during their nonworking time.
(h) Promising employees the payment of money to en-
courage them to support Excavating, Building Material,
Construction Drivers, Race Track Employees, Manufac-
turing, Processing, Assembling and Installer Employees,
Local Union No. 436 of Lake, Geauga, Cuyahoga
County and Vicinity, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, referred to herein as Local 436,
or any other labor organization.
(i) Threatening employees with loss of employment or
other reprisals because they associate with employees
who support AIW or any other labor organization.
(j) Coercing employees by asking them to sign state-
ments that they had received union authorization cards
during worktime from an employee who supports AIW
or any other labor organization, or by requiring them to
request return of their signed authorization cards from
AIW or any other labor organization.
a3 In the event no exceptions are filed as provided by Sec. 112.40 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted b the Board elld
become its findings, conclusions, and Order, and all obje-tions thrcio
shall be deemed waived for all purposes.
(k) Threatening that, if employees engaged in an eco-
nomic strike, Respondent would replace them perma-
nently, without hope of reinstatement.
(I) Threatening employees with plant closure, dis-
charge, stricter discipline, layoff, or other reprisals if the
AIW or any other organization organized Respondent's
employees.
(m) Promising employees cash payment if they support
Local 436 or any other labor organization in a Board-
held election.
(n) Promising wage increases to employees if AIW or
any other labor organization failed to organize Respond-
ent's employees.
(o) Instructing employees not to discuss their union ac-
tivities or union sentiments among themselves at the
plant.
(p) Withholding overtime hours, discharging, with-
holding holiday pay, constructively discharging, or oth-
erwise discriminating against employees because they
support or have supported AIW or any other labor orga-
nization.
(q) Refusing to recognize or bargain collectively with
AIW as the exclusive bargaining representative of Re-
spondent's employees at its Warrensville Heights, Ohio,
plant in the following appropriate bargaining unit:
All production and maintenance employees and
truck drivers, excluding all office clerical employ-
ees, professional employees, guards and supervisors
as defined in the Act.
(r) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with AIW as
the sole and exclusive collective-bargaining representa-
tive of its employees in the above-described unit with re-
spect to rates of pay, hours of employment, and other
terms and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Rescind the current no-solicitation rules set forth,
respectively, in Respondent's employee handbook and in
Respondent's revised work rules appended to the em-
ployee handbook.
(c) Offer Ronald Marek and Raymond Norris immedi-
ate and full reinstatement to their respective former posi-
tions of employment, dismissing, if necessary, anyone
who may have been hired or assigned to perform their
functions or, if their former respective positions do not
exist, to substantially equivalent positions without preju-
dice to their seniority or other rights or privileges.
(d) Make whole employees Ronald Marek, Enoch
Gray, and Raymond Norris for any losses of pay each
may have suffered as a result of the discrimination each
has suffered in the manner set forth above in the section
entitled "The Remedy."
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
LYMAN STEEL COMPANY
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ords necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Post at Respondent's Warrensville Heights, Ohio,
plant copies of the attached notice marked "Appen-
dix."36 Copies of said notice, on forms provided by the
Regional Director for Region 8, after being duly signed
by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by Respondent for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(g) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the election con-
ducted on September 22, 1978, in Case No. 8-RC-10916
be set aside and that the petition in the case be, and it
hereby is, dismissed.
IT IS ALSO FURTHER RECOMMENDED that unfair labor
practices alleged in the complaint but not specifically
found herein are hereby dismissed.
3 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
WE WILL NOT interrogate employees concerning
their membership in, sentiments toward, or activity
for International Union, Allied Industrial Workers
of America, AFL-CIO (referred to herein as AIW),
or any other labor organization.
WE WILL NOT interrogate employees regarding
the sentiments of prospective employees or other
employees toward, or the activities of prospective
employees or other employees on behalf of, AIW.
WE WILL NOT threaten employees with dis-
charge, plant closure, layoff, stricter discipline, or
other reprisals because they support AIW, or any
other labor organization, or associate with other
employees who support AIW, or any other labor
organization, or because AIW or any other labor
organization organizes our employees.
WE WILL NOT engage in surveillance of our em-
ployees during their working time at the plant for
purposes of discouraging them from discussing
AIW, or any other labor organization.
WE WILL NOT threaten that we will permanently
replace employees who engage in a strike without
any hope of their reinstatement.
WE WILL NOT offer employees money to harass
or coerce employees who support AIW, or any
other labor organization.
WE WILL NOT give employees the impression
that their union activities are under our surveillance
by confronting employees with knowledge that they
have signed authorization cards in favor of AIW, or
any other labor organization, or by telling them that
we know how they voted in a secret-ballot election
conducted by the National Labor Relations Board.
WE WILL NOT instruct employees not to discuss
their union activities or union sentiments among
themselves at the plant.
WE WILL NOT order employees to request the
return of their signed authorization cards from
AIW, or any other labor organization.
WE WILL NOT offer wage increases to persuade
employees to withhold their support from AIW, or
any other labor organization.
WE WILL NOT offer employees money or other
inducements to support Excavating, Building Mate-
rial, Construction Drivers, Race Track Employees,
Manufacturing, Processing, Assembling and Install-
er Employees, Local Union #436 of Lake, Geauga,
Cuyahoga County and Vicinity Affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (re-
ferred to herein as Local 436), or any other labor
organization.
WE WILL NOT discourage membership in AIW or
in any other labor organization by discharging em-
ployees, constructively discharging employees, de-
priving employees of overtime work, holiday pay,
or other benefits, or by any other discrimination in
regard to their hire or tenure or conditions of em-
ployment.
WE WILL NOT promulgate, maintain, or enforce
any rule or regulation which prohibits our employ-
ees from soliciting on behalf of any labor organiza-
tion in work areas of our facility during their non-
worktime.
WE WILL NOT refuse to recognize and bargain in
good faith with AIW in an appropriate bargaining
unit.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
LYMAN STEEL COMPANY 315
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL offer Ronald Marek and Raymond
Norris immediate reinstatement to their former posi-
tions, dismissing, if necessary, anyone who may
have been hired or assigned to perform the work
which they performed prior to their discharge, or,
if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or
other rights and privileges, and make them whole
for any loss of pay they may have suffered as a
result of our discrimination, including Ronald
Marek's lost overtime, together with interest on
those amounts.
WE WILL make Enoch Gray whole by paying to
him his holiday pay for Memorial Day 1978, togeth-
er with interest on that amount.
WE WILL immediately recognize and bargain in
good faith with AIW, as the exclusive collective-
bargaining representative of our employees in the
bargaining unit described below. Such recognition
and bargaining should be retroactive to April 24,
1978. If we reach an understanding, we will reduce
such agreement to writing and will sign and honor
it. The bargaining unit is:
All production and maintenance employees
and truck drivers, at our Warrensville Heights,
Ohio, plant, excluding all office clerical employ-
ees, professional employees, guards and supervi-
sors and defined in the Act.
LYMAN STEEL COMPANY