OmniSource Corporation

National Labor Relations Board - Board Decisions

Feb 27, 2018

366 NLRB No. 23 (N.L.R.B. 2018)

366 NLRB No. 23
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Omnisource Corporation and United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Al-
lied-Industrial and Service Workers Interna-
tional Union, AFL–CIO/CLC, Local 9130-03.
Case 08–CA–167138
February 27, 2018
DECISION AND ORDER
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
AND MCFERRAN
On February 13, 2017, Administrative Law Judge Paul
Bogas issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel and the Charging Party filed answering briefs,
and the Respondent filed reply briefs. In addition, the
General Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief to the Gen-
eral Counsel’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, some of the Respondent’s exceptions allege that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
We adopt the judge’s finding that the Respondent violated Sec.
8(a)(1) by discharging employees Ricky Dean, Darrell Smith, Roy
Thompson, and Terry Timman for statements made in the processing of
Thompson’s grievance against supervisor Chris Charlebois. We find it
unnecessary to pass on the judge’s finding that the discharges also
violated Sec. 8(a)(3), as any such finding would not materially affect
the remedy. See, e.g., Roadway Express, Inc., 355 NLRB 197, 204
(2010) (citing NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 22 (1964)),
enfd. mem. 427 Fed. Appx. 838 (11th Cir. 2011). Member Pearce joins
his colleagues in finding the Respondent violated Sec. 8(a)(1), but
would also adopt the judge’s finding that the discharges violated Sec.
8(a)(3). See generally Magnolia Manor Nursing Home, 284 NLRB
825, 825 fn. 1 (1987).
In affirming the judge, Chairman Kaplan relies on the credibility-
based findings that the Respondent failed to show that it had an honest
belief that any of the discharged employees made deliberate or mali-
ciously false statements during the grievance investigation process that
would warrant removal of statutory protection. He does not rely on the
to adopt the recommended Order as modified and set
forth in full below.2
ORDER
The National Labor Relations Board orders that the
Respondent, OmniSource Corporation, Mansfield, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because they engage in protected concerted
activities.
(b) In any like or related manner inferring with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order,
offer Ricky Dean, Darrell Smith, Roy Thompson, and
Terry Timman full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed.
(b) Make Ricky Dean, Darrell Smith, Roy Thompson,
and Terry Timman whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy sec-
tion of the judge’s decision as amended in this decision.
(c) Compensate Ricky Dean, Darrell Smith, Roy
Thompson, and Terry Timman for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards,
and file with the Regional Director for Region 8, within
21 days of the date the amount of backpay is fixed, either

judge’s articulation of a different standard for employees engaged as
union officials in the processing of a grievance.
2 We shall modify the judge’s recommended Order to include the
standard remedial language for the violations found and shall substitute
a new Notice to conform to the Order as modified.
In accordance with our decision in AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016), we shall modify the judge’s recommended
tax compensation and Social Security reporting remedy.
In accordance with our decision in King Soopers, Inc., 364 NLRB
No. 93 (2016), enfd. in rel. part, King Soopers v. NLRB, 859 F.3d 23
(D.C. Cir. 2017), we shall also order the Respondent to compensate
affected employees for their search-for-work and interim employment
expenses regardless of whether those expenses exceed interim earnings.
Search-for-work and interim employment expenses shall be calculated
separately from taxable net backpay, with interest at the rate prescribed
in New Horizons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
The General Counsel seeks a make-whole remedy that includes con-
sequential damages incurred as a result of the Respondent’s unfair labor
practice. The relief sought would require a change in Board law. Hav-
ing duly considered the matter, we are not prepared at this time to devi-
ate from our current remedial practice. Accordingly, we decline to
order this relief at this time. See e.g. Laborers International Union of
North America, Local Union No. 91 (Council of Utility Contractors),
365 NLRB No. 28, slip op. at 1 fn. 2 (2017).
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by agreement or Board order, a report allocating the
backpay awards to the appropriate calendar years for
each employee.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter, notify the employees in
writing that this has been done and that the discharges
will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Mansfield, Ohio facility copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since December 18, 2015.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 8 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. February 27, 2018

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against any of you because you engaged in protected
concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Ricky Dean, Darrell Smith, Roy Thompson,
and Terry Timman full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Ricky Dean, Darrell Smith, Roy
Thompson, and Terry Timman whole for any loss of
earnings and other benefits resulting from their dis-
charge, less any net interim earnings, plus interest, and
WE WILL also make such employees whole for reasonable
search-for-work and interim employment expenses, plus
interest.
OMNISOURCE CORP. 3
WE WILL compensate Ricky Dean, Darrell Smith, Roy
Thompson, and Terry Timman for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards,
and WE WILL file with the Regional Director for Region
8, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Ricky Dean, Darrell Smith, Roy
Thompson, and Terry Timman, and WE WILL, within 3
days thereafter, notify them in writing that this has been
done and that the discharges will not be used against
them in any way.
OMNISOURCE CORPORATION
The Board’s decision can be found at
https://www.nlrb.gov/case/08-CA-167138 or by using
the QR code below. Alternatively, you can obtain a copy
of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street S.E., Washing-
ton, D.C. 20570, or by calling (202) 273-1940.
Karen Neilsen, Esq., for the General Counsel.
James J. O’Connor, Esq., and Anthony M. Stites, Esq. (Barret
McNagny LLP), of Fort Wayne, Indiana, for the Respond-
ent.
Nancy A. Parker, Esq. of Pittsburgh, Pennsylvania, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was
tried in Mansfield, Ohio, on September 12, 13, 14, and 15,
2016. The United Steel, Paper and Forestry, Rubber, Manufac-
turing Energy, Allied-Industrial and Service Workers Interna-
tional Union, AFL–CIO/CLC, Local 9130-03 (Union or Charg-
ing Party) filed the charge on January 6, 2016, and the amended
charge on May 25, 2015. The Regional Director for Region 8
of the National Labor Relations Board (NLRB or Board) issued
the consolidated complaint on May 27, 2016, and the amend-
ment to the consolidated complaint on June 2, 2016. On Sep-
tember 9, 2016, the Regional Director issued an order severing
cases. What remains before me is case number 08–CA–
167138, which alleges that OmniSource Corporation (Respond-
ent or Company) violated Section 8(a)(3) and (1) of the Nation-
al Labor Relations Act (the Act) by discriminatorily discharg-
ing four employees at its Mansfield, Ohio, facility because of
their union and protected concerted activities. The Respondent
filed a timely answer in which it denied committing any viola-
tion of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Respondent, and the Charging
Party, I make the following finds of fact and conclusions of
law.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, processes and sells scrap
metal, and from its facility in Mansfield, Ohio, annually sells
and ships goods valued in excess of $50,000 directly to points
outside the State of Ohio. The Respondent admits, and I find,
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is a scrap metal recycling company with ap-
proximately 70 facilities. Steel Dynamics, Incorporated, is the
parent corporation of the Respondent and the two entities have
the same corporate headquarters. Seven of the Respondent’s 70
facilities are unionized. None of these seven were initially
organized while owned by the Respondent, but rather were
unionized at the time the Respondent acquired them. The Re-
spondent’s unionized locations include the one in Mansfield,
Ohio, which is the subject of this litigation. The bargaining
unit at the Mansfield location has approximately 34 members,
of whom 9 are truck drivers and 25 are production and mainte-
nance employees who work in the scrap yard.
On December 18, 2015, the Respondent discharged four of
its long-time employees: Ricky Dean, Darrell Smith, Roy
Thompson, and Terry Timman. At the time the Respondent
discharged them, Dean, Smith, and Timman were the only cur-
rent union representatives employed at the Mansfield location.
Dean, a bargaining unit truck driver based at the Mansfield
facility had been employed by the Respondent since September
2002. He became a union official in 2012 and was the chair-
person of the bargaining unit at the time the Respondent dis-
charged him. Dean’s union activities included overseeing other
bargaining unit representatives, participating in the negotiations
for the last two labor contracts, and attending the parties’ bi-
weekly labor-management committee (LMC) meetings. Smith,
who worked in the scrap yard, had been employed by the Re-
spondent since 1993, served as “bargaining unit griever” from
2003 until 2015, and was the bargaining unit’s secretary when
the Respondent discharged him. As unit secretary, he was re-
sponsible for, inter alia, attending the LMC meetings. Timman
had been employed by the Respondent since February 2003,
and was the bargaining unit griever at the time the Respondent
discharged him. Timman’s responsibilities as griever included
filing and pursuing grievances and attending the LMC meet-
ings. The fourth discharged employee, Thompson, was hired
by the Respondent in October 2004, and at the time of his ter-
mination was a crane operator. Thompson was a member of
the Union but had no position with it.
Prior to when the Respondent discharged Thompson and
Timman, it had never previously disciplined them. General
Counsel’s Exhibit (GC) 38. The Respondent had disciplined
Smith only once before—in January 2002, for failing to appear
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for his shift without properly notifying management. Ibid. The
Respondent issued Dean a verbal warning in 2008 for incorrect-
ly designating the time he spent undergoing a required random
drug test and a 3-day suspension in 2011 for an altercation with
a coworker. Linda McKinley, the Respondent’s mid-Ohio
human resources manager, stated that, aside from attendance
matters, none of the four employees had “a lot” of prior disci-
pline at the time of their discharges. Transcript at Page (Tr.)
1043.
B. Charlebois Arrives at the Mansfield Facility
Robert Oney was plant manager at the Mansfield facility in
2015 and 2016. On July 7 or 8, 2015, the Respondent brought
Christopher Charlebois, a more senior management official
(division manager), to the facility to work with Oney and the
Mansfield management team to improve safety, environmental
metrics, team building and communications, and to help ensure
that the Respondent was complying with the collective-
bargaining agreement. Once Charlebois came to the Mansfield
facility, he and Oney functioned as co-managers of the facility.
Almost immediately upon Charlebois’ arrival, friction devel-
oped between him and some bargaining unit employees. A
regular monthly safety meeting was held on Charlebois’ first
day at the facility, and he attended, as did the unit employees.
When Charlebois was called upon to participate in a team
building game, Thompson made a comment, heard by others,
along the lines of “Yeah, you should do it, because it would
take a member of management to fuck it up.” Thompson testi-
fied that he meant this as a humorous statement. Charlebois did
not find it humorous, which is not surprising given that he was
new to the facility and had never met Thompson before.
Charlebois responded, “I can see you’re the smart-ass in the
group.” Multiple employees testified that Charlebois became
red-faced with anger and glared at Thompson. Charlebois testi-
fied that Thompson was pacing and behaving in a “dysfunc-
tional” manner at the meeting. After the meeting, some em-
ployees began referring to Charlebois as “grumpy grandpa”
when he was not present.
Following Charlebois’ arrival, the Respondent began to more
strictly enforce certain rules regarding unit employees’ break
time and cell phone usage, and also instituted a new policy on
smoking. Union officials believed that Charlebois was respon-
sible for these changes and at a meeting with management
Smith complained that Charlebois should make such changes
“gradually . . . instead of being firm all at once.”
When Charlebois arrived at the Mansfield facility, there were
two operating employee-management committees—one created
to address safety issues and one to address trust and communi-
cation issues. Bargaining unit volunteers participated in these
committees, but the Union itself had no direct role in them.
When Charlebois came to the facility, he began attending the
employee-management committee meetings. The record shows
that the Respondent implemented some, but not all, of the
changes that employees recommended at the committee meet-
ings. At some point, prior to December 2015, all of the em-
ployee-volunteers simultaneously ceased participating in the
two employee-management committees. Thompson, who was
one of the employee-volunteers, stated that he quit the commit-
tee because he felt that management “looked down” on the
employees and did not take their complaints seriously. Thomp-
son complained, in particular, about Charlebois who he charac-
terized as “condescending and a bit of an intellectual bully.”
C. Thompson Initiates Grievance Alleging Misconduct by
Charlebois, and Respondent Terminates Employees for Alleg-
edly Making False, Slanderous, and Defamatory Statements
During the Investigation of that Grievance
On December 18, 2015, the Respondent terminated Thomp-
son and all three of the Mansfield union representatives—Dean,
Smith, and Timman. The termination letter for each of the four
individuals used the same language. The letters stated that the
employees were being discharged “due to your false, slander-
ous, and defamatory statements you made about management,
Chris Charlebois.”1 The statements referred to were made by
the employees in the course of pursuing a grievance, filed by
the Union on December 8, concerning alleged misconduct by
Charlebois. The grievance, which was set in motion by a writ-
ten statement that Thompson provided to his union representa-
tives, involved two alleged incidents on December 7—one in
the hallway at the Mansfield offices and one in a conference
room that is adjacent to that hallway. In the course of meetings
with the Respondent regarding that grievance, Dean, Smith, and
Timman, also gave accounts regarding Charlebois’ conduct at
an earlier, December 2, meeting. At some point during the
investigation of the grievance regarding alleged misconduct by
Charlebois, the Respondent, without notifying the Union, re-
cast the investigation as one into whether the employees had
engaged in misconduct while pursuing the grievance.
In addition to discharging the employees, the Respondent is
paying the attorney’s fees for a defamation lawsuit that
Charlebois filed in the Court of Common Pleas, Summit Coun-
ty, Ohio, seeking compensatory and punitive damages from
Dean, Smith, Thompson, Timman, and a fifth former employee,
Gary Sutherland. The attorney representing Charlebois in his
defamation suit against those former employees is the same one
who is serving as lead trial counsel for the Respondent in this
ULP proceeding.
1. December 2—alleged “Hold a Machine Gun to
You” Statement
A regularly scheduled LMC meeting was held on December
2 in the Mansfield location’s conference room and lasted ap-
proximately 45 minutes. In attendance were Union Officials
Dean, Smith, and Timman, and Management Officials,
Charlebois, McKinley, Oney, Patrick Harte (Transportation
Manager for the Respondent’s four Ohio locations), and Curtis
West (dispatcher/traffic manager at Mansfield). The confer-
ence room is a relatively small space and the eight attendees
were tightly seated around an oblong conference table.
Charlebois was seated between Smith and Timman, and Dean
was next to Timman.
During the December 2 meeting there were, at times, multi-

1 Each letter also stated that the termination was consistent with the
management rights provision (art. 7) in the collective-bargaining
agreement. GC Exh. 6, pp. 4–5. The Respondent does not cite this
provision in its brief.
OMNISOURCE CORP. 5
ple discrete conversations taking place simultaneously around
the conference table. While the close quarters meant that eve-
ryone present was within earshot of everything said at the meet-
ing, the evidence shows that sometimes attendees were concen-
trating on one conversation and did not listen to what was being
said in other, simultaneous, conversations. For the purposes of
this case the only significant instance of this occurred towards
the end of the meeting when three discrete conversations were
occurring: McKinley, Oney and Smith were discussing retire-
ment accounts; Dean and Harte were discussing trucking is-
sues; and Charlebois and Timman were engaged in a third dis-
cussion.
Although there is a factual dispute about a key part of the
conversation between Charlebois and Timman, witnesses for
both sides, including all three union representatives and man-
agement witnesses McKinley and West, agreed that the conver-
sation included mention of “Stalin” and “Hitler.” Given the
testimony of witnesses for both sides on this point, I find that,
during the December 2 meeting, Charlebois and Timman had a
conversation during which Stalin and Hitler were mentioned.2
The factual dispute regarding the December 2 meeting re-
volves around how it came to pass that Stalin and Hitler were
mentioned during a meeting between labor and management at
a scrap yard facility. McKinley’s testimony was that
Charlebois said “You know I’m a history buff, especially
World War II” and that Timman responded: “Well, so am I.
Stalin.” Then, according to McKinley, Charlebois said “Better
than Hitler.” Tr. 932. While West testified that he heard the
words Stalin and Hitler, his testimony was not helpful regard-
ing the disputed portion of the conversation because he testified
that he either did not hear, or did not recall hearing, the conver-
sation that led to Stalin and Hitler being mentioned. Tr. 700.
The three union witnesses contradicted McKinley’s account of
how Stalin and Hitler came to be discussed. According to
them, Charlebois was trying to resurrect the safety and commu-
nications committees and was encouraging Timman and Smith
to participate, but they were resisting such participation.
Charlebois reacted to their resistance by saying something to
the effect of “What do I got to do, hold a machine gun to you
guys to get something done here?” Timman responded, sarcas-
tically, “Okay, Stalin.” Then Charlebois commented that Stalin
was worse than Hitler. Tr. 312–314 (Timman); Tr. 519 (Dean);
Tr. 590 (Smith).
Based on my review of the entire record in this case, includ-
ing the demeanor of the witnesses, and the substance of the
testimonies above, I credit the testimony of Dean, Smith and
Timman and find that at the December 2, 2015, LMC meeting
Charlebois did ask whether it was necessary to “hold a machine

2 To the extent that Charlebois’ testimony that he did not “recall”
having any conversation at all with Timman on December 2 and did not
“recall” Stalin and Hitler being mentioned on that occasion, Tr. 737,
can be interpreted as a denial, his denial is not credible given, inter alia,
that even Human Resources Manager McKinley and transportation
manager West confirmed those facts, and that all three union witnesses
to the meeting gave consistent testimony on that point. I also find that
witnesses Oney and Harte were not listening to the December 2 conver-
sation between Charlebois and Timman since neither of them recalled
the Stalin and Hitler references.
gun” to employees in order to get something done. That testi-
mony rings true because it explains how the mention of Stalin
and Hitler flowed from the discussion of a labor relations top-
ic—i.e., participation in the employee-management commit-
tees. Moreover, the testimonies of the three union witnesses
were mutually corroborative and also consistent with the way
people actually talk. McKinley’s version of events, on the
other hand, does not make a credible connection between any-
thing that would typically be discussed at a labor relations
meeting and the reference to Stalin and Hitler. According to
her, Charlebois, apropos of no labor relations subject, stated
that he was a history buff with a special interest in World War
II. That, on its own, is improbable, but from that point McKin-
ley’s account becomes even stranger. She claims that Timman
responded to Charlebois’ comment by blurting out the name of
a random World War II figure—“Stalin.” Moreover, although
there were four other management officials at the December 2
meeting, not one of them corroborated McKinley’s testimony
that Charlebois stated that he was a history buff with a special
interest in World War II, or provided any meaningful insight
into why Charlebois would have raised that subject during a
LMC meeting. Not only did I consider this testimony by
McKinley lacking in credibility, but based on her demeanor and
testimony as a whole, I find that she was an unusually biased
witness and give her testimony regarding disputed matters very
little weight.
The Respondent argues that the accounts of the three union
witnesses are not credible because they did not complain about
Charlebois’ December 2 statement until almost a week later,
after Thompson initiated a grievance regarding Charlebois’
December 7 conduct and statement. That contention is not
persuasive. Timman credibly testified that, on December 2, he
thought Charlebois’ statement about holding a machine gun to
employees was just a “figure of speech” and not a threat. Tr.
319–320. Similarly, Dean told McKinley that “he didn’t think
much of it at the time,” and none of the three union officials
indicated to McKinley that the statement frightened them. Tr.
986–987. In McKinley’s write-up of her investigation she said
that Smith told her that “any mention of guns in the workplace
was unacceptable,” but that he had planned to “let it slide.”
Putting aside the question of whether it is acceptable for a man-
ager to talk, even in figurative terms, about holding a gun to
employees, I believe that the language attributed to Charlebois,
at least when viewed in isolation from his alleged misconduct
on December 7, was properly understood as “a figure of
speech” and while arguably a threat of some work-related re-
percussions was not a threat of gun violence. It is not at all
suspicious to me that the three union officials would not initial-
ly choose to make an issue of Charlebois’ December 2 state-
ment, and raise it only after Thompson’s allegations regarding
subsequent conduct provided reason to believe that the Decem-
ber 2 statement was part of a worrisome pattern. This is, in
fact, consistent with what Smith told McKinley during an inter-
view on December 8, when he explained that “he did not like
the statement made about machine guns and was going to let it
go until he heard about the [December 7] incident with Roy
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
[Thompson].” Respondent’s Exhibit Number (R. Exh.) 9.3 The
fact that McKinley dismissed these very credible explanations
for the timing of the employees’ reports regarding December 2
speaks more to McKinley’s bias during the investigation than to
any lack of credibility on the part of employees.
In addition to finding that Charlebois did make the statement
about “holding a machine gun” to employees on December 2, I
find that the evidence does not show that any of the employees’
falsely reported that statement to the Respondent. On Decem-
ber 8, Smith reported, in writing, that Charlebois said “What do
I have to do hold a machine gun to you to get something done
around here.” On December 9, Dean provided the Respondent
with a written statement that Charlebois had said “What do I
have to do hold a machine gun to you to get something done,”
and Timman provided a written statement that the comment
was “something to the effect of having to hold a machine gun
to us.” I find that those reports were not only honest, but sub-
stantially accurate.
It is true that other people—not the discharged employees—
appear to have been spreading rumors that Charlebois had made
a more extreme statement. Robert Carman, the Respondent’s
mid-Ohio regional manager, stated that his understanding was
that all four employees had claimed that Charlebois said “we’re
going to stand you up and mow you down with a machine gun.”
However, he testified that this understanding came from Oney,
not from any of the discharged employees. Tr. 827–829. At
any rate, either Oney or Carman was painting with an overly
broad brush in reporting that all four employees reported that
alleged statement because Thompson was not even at the De-
cember 2 meeting and was not shown to have made any claims
to the Respondent about that meeting or a machine gun com-
ment.4 In addition, McKinley reported that, another employee,
Gary Sutherland, met with her on December 8 and said that
employees were afraid because a “supervisor was threatening
them with guns.” Sutherland is not one of alleged discrimi-
natees whose discharges are at-issue in this case and even if his
report was inaccurate with respect to Charlebois’ statements,
that report cannot be held against the alleged discriminatees.5
2. Hallway incident between Charlebois and Thompson
on December 7
In late November 2015, a malfunction led to damage to the
crane that Thompson was operating. The Respondent directed
Thompson to fill out a safety report regarding the incident.
Thompson refused to do so, stating that employees had not
been required to fill out reports in the past when they were not

3 The Respondent marked its exhibits as “Company” exhibits, and
the Court Reporter marked the same exhibits as “Respondent” exhibits,
and used the Respondent’s numbering. I refer to these exhibits as Re-
spondent’s Exhibits.
4 See Mojave Electrical Coop, Inc., 327 NLRB 13, 15 (1998) enfd.
206 F.3d 1183 (D.C. Cir. 2000) (Where the employer’s conclusion that
employee had made maliciously false report was based in good faith on
exaggerated reports from intermediaries, the responsibility for the ex-
aggeration must be borne by employer, not the employee.).
5 See Triple Play Sports Bar and Grille, 361 NLRB 308, 312 (2014),
affd. 629 Fed. Appx. 33 (2d Cir. 2015) (employees cannot be disci-
plined for the unprotected comments of others, even where they were
part of the same discussion).
at-fault for damage and that he believed the Respondent was
attempting to create a paper trail to justify discharging him. On
December 7, the Respondent called Thompson and Timman to
the conference room so that management, and in particular
Charlebois, could explain to Thompson that the report was
required under the Respondent’s safety program and would not
be used to discipline him. As Thompson walked down the
hallway towards the conference room, he followed a short dis-
tance behind Timman, who was himself a short distance behind
Oney. On their way to the conference room the three passed by
Charlebois’ office, where Charlebois was still present. Oney
and Timman passed Charlebois’ office without incident, but
when Thompson was about to pass by, Charlebois stepped for-
ward to encounter him in the hallway.
Charlebois and Thompson themselves are the only witnesses
who testified to seeing or hearing their encounter in the hall-
way. Their accounts are in accord in some respects, but differ
regarding key details. Both testified that Charlebois ap-
proached Thompson and reached towards him in an effort to
initiate a handshake, and that Thompson refused to shake
Charlebois’ hand. Both Thompson and Charlebois gave sub-
stantially consistent testimony about what Charlebois said to
Thompson regarding his refusal. Charlebois testified that he
said “You don’t want to shake a man’s hand?” Thompson testi-
fied that what Charlebois said was: “What’s wrong with you?
You don’t shake a man’s hand when he puts it out in front of
you?”
Beyond that, Charlebois’ and Thompson’s accounts regard-
ing the encounter differ. According to the written statement
that Charlebois provided to the Respondent as part of the inves-
tigation, when he exited his office and tried to shake Thomp-
son’s hand, he impeded Thompson’s path insofar as “there is
not enough room for two grown men to pass side by side, fac-
ing each other” in the narrow hallway. (R. Exh. 21, pp. 1–2;
see also Tr. 921–922) (Oney describes the hallway as “kind of
. . . narrow,” between 3 and 4 feet wide). Charlebois stated
that Thompson, in order to squeeze past, “almost hugged the
wall with his back.” (R. Exh. 21, p. 2.) Charlebois testified
that his “hand may have brushed” Thompson during the en-
counter. (Tr. 713.) In his written account, Charlebois said that
Thompson “brushed right by” him. (R. Exh. 21.)
Thompson testified to a more physically extreme encounter
than Charlebois described. According to Thompson, when he
refused to shake hands, Charlebois grabbed him by the jacket
and pulled. Thompson testified that he was quickly freed from
Charlebois’ grip and continued down the hallway to the confer-
ence room for the meeting regarding his refusal to complete an
incident report.
After carefully reviewing Charlebois’ and Thompson’s tes-
timonies regarding their hallway encounter, and considering
their accounts in light of the record as a whole, I do not find a
basis for crediting one witness over the other regarding the
contradictory portions of those accounts. No one else heard or
saw the encounter and I did not find either Charlebois or
Thompson more credible than the other based on their demean-
or, testimony, written statements, or the record as a whole.
Charlebois had an interest in the outcome of this case, as well
as in a defamation lawsuit regarding some of the same opera-
OMNISOURCE CORP. 7
tive facts, and a number of his denials, for example regarding
the references to Stalin and Hitler on December 2 and the refer-
ence to dinosaurs on December 7 (discussed infra), were con-
tradicted even by management witnesses for the Respondent.
Thompson also has a personal stake in the outcome of this liti-
gation and at times his demeanor when testifying about disput-
ed events suggested agitation that I am concerned may have
clouded his perception and/or recollection.
The Respondent argues that Charlebois should be credited
over Thompson because Thompson did not raise the alleged
grabbing incident at the start of the meeting that took place
immediately afterwards. However, as discussed above, the
subject of that meeting was the intensifying conflict over
Thompson’s refusal to comply with the safety program by
completing a report. It is not surprising that Thompson would
be focused on that conflict, and the possibility that he would be
disciplined for his refusal, and would not use the opportunity to
accuse Charlebois of misconduct that occurred just moments
before and which Thompson had not yet had an opportunity to
digest or discuss with his union representatives. Indeed, at trial,
Thompson credibly testified that, during the December 7 meet-
ing, he did not mention the hallway encounter because he was
concerned about losing his job and wanted the opportunity to
discuss the hallway encounter with his union representatives
before bringing it up with management. (Tr. 228–229.) This
was also consistent with what Thompson told McKinley during
a December 14 interview when she asked him why he had not
mentioned the hallway incident at the December 7 meeting.
(GC Exh. 18.) Thompson’s concern that he was in danger of
being disciplined at the December 7 meeting was well-founded;
at the meeting Charlebois warned Thompson that he would be
suspended unless he completed the incident report. Here again,
the fact that McKinley dismissed the employee’s very credible
explanation for the timing of his report is more indicative of
McKinley’s bias during her investigation than of a lack of cred-
ibility on the employee’s part.
The Respondent also suggests that I should credit
Charlebois’ account over Thompsons’ because no other wit-
nesses corroborated Thompson’s account. However, the fact is
that no other witnesses corroborated Charlebois’ account either.
Indeed, none of the other trial witnesses who were present in
the office complex even testified to seeing Charlebois attempt
to shake Thompson’s hand or to hearing Charlebois’ statement
about Thompson’s refusal—things that both sides agree oc-
curred. None of the other individuals were shown to have been
situated in such a way that they necessarily would have seen or
heard the conduct that Thompson testified about. Under the
circumstances, the fact that no one else witnessed the disputed
event does not buttress either side’s position regarding that
event.
In addition to finding that the record does not show that
Thompson’s account regarding the hallway encounter was
false, or that Charlebois’ account was true, I also find that the
record does not show that Thompson, or any of the other dis-
charged individuals, made false statements regarding the hall-
way encounter. The evidence shows that on December 7,
Thompson notified Timman, the union official responsible for
handling grievances, that Charlebois had grabbed him in the
hallway earlier that day. After Thompson raised the matter
with Timman, both discussed the matter with Smith, who had
extensive experience handling grievances. On December 7,
Thompson prepared a written statement regarding the grabbing
allegation (as well as another allegation, discussed infra, re-
garding a statement allegedly made by Charlebois at the De-
cember 7 meeting) and this written statement was provided to
the union officials. Regarding the hallway incident, Thompson
wrote:
I was walking through the hallway for a meeting with Bob[
Oney] and Chris[ Charlebois]. Chris stuck his hand out to
shake my hand and I just kept walking. He reached out and
grabbed me pulled me backwards. Said, “You don’t shake a
man’s hand when he holds it out.” He let go and I kept walk-
ing.
(GC Exh. 7.) Timman talked to Dean about Thompson’s re-
port, and Dean advised him to file a grievance under the par-
ties’ March 2, 2012, letter of understanding, which requires the
immediate discharge of any employee or manager who engages
in a “verbal or physical altercation that occurs in the work-
place.”6 On December 8, Timman and Smith submitted
Thompson’s written statement to Oney and Charlebois, along
with a grievance report, signed by Timman, that cited the letter
of understanding. (GC Exh. 2.) Neither Thompson’s written
statement nor the grievance report was shown to include a false
account, much less a knowingly false account, of the hallway
incident.
When Timman and Smith provided the grievance report and
written statement to Charlebois and Oney, Charlebois denied
that he had grabbed Thompson, but confirmed that he made a
statement to Thompson about refusing to shake hands. Tim-
man and Smith then met with Thompson, and informed him
that Charlebois denied grabbing him. Thompson told them that
the security cameras that were present in the hallway should be
checked because the videotape would confirm that Charlebois
had grabbed him. Smith believed that Thompson’s insistence
on checking the security cameras lent credence to his account.
Smith asked Plant Manager Oney to review the security camera

6 The body of the letter of understanding states in its entirety:
OmniSource Corporation together with the United Steelwork-
ers International Union agrees that altercations between co-
workers, whether verbal or physical, are unacceptable on the
property of the OmniSource facility.
An altercation is defined as a physical threat or physical harm
to any employee, hourly to hourly, management to management,
and hourly to management or management to hourly employees.
Both parties are committed to maintain a friendly and safe
work environment for ALL employees, customers, and visitors.
For this reason, any verbal or physical altercation that occurs
in the workplace will result in immediate discharge for all parties
involved in the altercation. Such violations will be investigated
aggressively to determine if the incident should be covered by the
appeal process defined in the current or any future collective bar-
gaining agreements.
Whatever the issue, please refrain from taking matters into
your own hands. Contact your supervisor or the union grievance
representative in order to resolve the issue.
GC Exh. 3.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
footage, which Oney agreed to do. Later, Oney told Smith (but
did not state at trial) that the security camera footage failed to
show what happened in the hallway. Smith testified that securi-
ty camera footage had been used to show hallway activity dur-
ing the investigation of an unrelated incident, but the record
does not establish whether or not footage relevant to the instant
case ever existed.
Thompson gave a verbal statement to the Respondent regard-
ing the hallway incident when McKinley interviewed him about
the grievance on December 14, 2015. McKinley prepared
typed notes of what Thompson said about the hallway incident
and the account in those notes is substantially consistent with
both Thompson’s trial testimony on the subject and his Decem-
ber 7 written statement.
On December 10, a police officer visited the facility to inves-
tigate allegations regarding Charlebois’ conduct. This visit was
not prompted by any of the alleged discriminatees in this case,
but by another unit employee. While at the facility, the police
officer interviewed Thompson. The officer’s written report
regarding what Thompson told him was substantially consistent
with what Thompson told the Respondent and testified to at
trial. The officer told Thompson that if he wanted to press
charges he would have to talk to the District Attorney. Prior to
his discharge, Thompson discussed his allegation with the Dis-
trict Attorney, who told Thompson that there was an insuffi-
cient basis for bringing an assault case.
Given the above, I find that the record regarding the hallway
encounter fails to show that Thompson engaged in the conduct
that Respondent claims justified his termination—i.e., that he
made statements that were “false, slanderous, and defamatory,”
and certainly not that he made statements that were deliberately
or maliciously false. Regarding the three union officials who
the Respondent discharged on the same basis, the record even
more clearly fails to establish that they made any “false, slan-
derous, and defamatory” statements regarding the hallway inci-
dent. Indeed, none of them claimed to have witnessed the
hallway encounter at all. Timman explicitly told McKinley that
he had not seen or heard the hallway encounter. In other
words, the employee-union representatives merely conveyed, as
part of the contractual grievance process, what Thompson had
described to them, and asserted that the conduct he had de-
scribed was a violation of the letter of understanding regarding
altercations.
In addition to finding that, relative to the grabbing allegation,
none of the discharged employees were shown to have engaged
in the maliciously untruthful conduct that the Respondent
claims as justification for the terminations, I also find that the
Respondent has not shown that it had a good faith basis for
believing that such misconduct occurred. McKinley was the
company official who conducted the investigation of the griev-
ance involving alleged misconduct by Charlebois. However,
the record is clear that before she even began the investigation,
McKinley had prejudged the matter and that she finalized her
conclusion that Thompson was lying based on her preexisting
bias. She testified that as soon as the Union presented Thomp-
son’s allegations regarding misconduct by Charlebois, and
before any investigation, she “could not believe” it was true
that Charlebois had grabbed Thompson, Tr. 1000, and “didn’t
really believe any of it had happened,” Tr. 1003. As discussed
above, she dismissed Thompson’s reasonable explanation for
the timing of his report about the incident. She prejudged the
situation in this manner even though Thompson had been em-
ployed for over a decade and the Respondent had never once
found it necessary to discipline him in the past. By her own
admission, when McKinley began investigating Charlebois’
conduct, she asked that all three of the eventually terminated
union officials provide her with written statements, but did not
ask that Charlebois provide a written statement because, in her
words, “he’s a senior executive with our company.” (Tr. 950–
951.) Thompson’s preinvestigation belief that Thompson was
lying about being grabbed by Charlebois could only have been
changed, she testified, if there was another eyewitness who
corroborated his account. (Tr. 1017–1018.) I note that the lack
of such eyewitness evidence did not lead the Respondent to
conclude merely that it could not substantiate whether or not
the grabbing incident had occurred (resulting in denial of the
grievance), but led the Respondent all the way to affirmative
conclusions that Charlebois had not grabbed Thompson and
that Thompson was maliciously lying about it (leading not only
to denial of the grievance, but to the discharge of Thompson).
Based on the record, I find that McKinley, in addition to be-
ing predisposed to discredit Thompson, was also unduly dis-
posed to credit Charlebois, a high level executive of whom she
appears to be somewhat in awe. While testifying, McKinley
volunteered that Charlebois was a “very highly educated” “gen-
tlem[a]n” who was “coming from a completely different area of
life” than “our guys.” (Tr. 933–934.) She testified, it
“warm[ed] my heart,” to see a person like Charlebois engaged
in a “nice” conversation with a bargaining unit employee. (Tr.
933 and 1018.) As discussed above, she admitted that she did
not initially even ask for a written statement from Charlebois
because “he’s a senior executive” with the company. Based on
all of the above, I find that McKinley’s conclusion that Thomp-
son was maliciously lying about the hallway encounter did not
have an honest, good-faith basis, but, rather, was merely an
expression of her pronounced preexisting bias. The record
shows that McKinley was not interested in determining whether
Charlebois had engaged in the misconduct, but rather in punish-
ing Thompson and the other discharged employees for making
an allegation of misconduct against someone who she deemed
so far above their station. Without notifying the Union, she re-
cast the investigation of a grievance regarding alleged miscon-
duct by Charlebois, into an investigation of misconduct by the
employees in pursuing that grievance.
McKinley eventually forwarded an investigative report, and
various witness statements, to Andrew Ables, the Respondent’s
corporate human resources manager and the individual who
made the final decision to discharge Thompson, Dean, Smith,
and Timman. In reaching that decision, Ables consulted with a
group of managers that included Mike Herrmann (division
manager), Robert Carman (mid-Ohio regional manager), and
McKinley—all of whom agreed with the discharge decision.
The evidence shows that the bias against the employees was not
McKinley’s alone, but permeated the Respondent’s investiga-
tion. Oney, the plant manager whose account was a key part of
McKinley’s investigation, testified that when, before the inves-
OMNISOURCE CORP. 9
tigation, he heard the allegation that Charlebois had grabbed
Thompson, he “immediately thought that it wasn’t true.” (Tr.
895.) In addition, the record shows that before McKinley in-
terviewed the alleged discriminatees on December 14, and at a
time when the Respondent purports to have been impartially
attempting to ascertain the facts, Herrmann (an upper level
executive) indicated to McKinley by email that he was “confi-
dent” that the employees “will not be able to coordinate the
context of their lie well enough to make it believable.” (Tr.
1014–1016.) He suggested additional questioning that he was
convinced would expose them. Carman testified that all four of
the alleged discriminatees were making false claims about what
Charlebois said during the December 2 meeting, but Thompson
was not even at that meeting and made no representations about
what was said there. Carman stated that his understanding was
that all four employees had claimed that Charlebois said “we’re
going to stand you up and mow you down with a machine gun.”
However, he testified that this understanding came from Oney,
not from any of the discharged employees. (Tr. 827–829.) I
find that the Respondent did not arrive at the conclusion that
the employees were lying through an honest inquiry, but
through one directed at rejecting the employees’ complaints
about Charlebois and punishing them for making those com-
plaints.
3. Charlebois “Dinosaur” comment at December 7 meeting
Following the December 7 hallway interaction, Thompson
and Charlebois continued down the hallway and into the con-
ference room for the meeting regarding Thompson’s refusal to
complete a report. The others present were Timman and Oney.
Charlebois explained to Thompson that the report was required
for the Respondent’s safety program and would not be used to
discipline him. Thompson continued to resist, prompting
Charlebois to warn that Thompson would be suspended for
insubordination if he did not complete the report.
In response to Thompson’s continued resistance to complet-
ing the report, Charlebois made a statement at the meeting in
which he referred to the fate that awaited “old dinosaurs.” All
those present at the meeting testified to hearing the dinosaur
statement, although there are differences in their accounts of
Charlebois’ precise wording. Thompson testified that what
Charlebois said was, “People are going to conform to my way,
or all the old dinosaurs will be shot.” (Tr. 225.) According to
Timman’s testimony, the statement was, “The old dinosaurs
will comply or will be shot.” (Tr. 339.)7 Management witness
Olney testified that what Charlebois said was, “Everyone needs
to conform to the way things are heading and that some old
dinosaurs may not survive.” (Tr. 916–917.) At the hearing,
Charlebois himself initially affirmed that what he said was,
“Here’s an example of an employee who is a dinosaur,” and
“some old dinosaurs may not survive.” (Tr. 790.) Then
Charlebois recanted to some extent, stating that he would “nev-
er” have used the word “survive,” and that what he actually
said was “probably something along the line—here’s an exam-
ple of an employee who’s a dinosaur who will be left behind.”

7 Neither of the other two alleged discriminates—Dean and Smith—
was present at this meeting or made any claims to firsthand knowledge
of what Charlebois said during it.
(Tr. 790–791.) In the notes that Charlebois prepared close in
time to the event, he gave a formulation that was slightly dif-
ferent than either of those he testified to at trial. In his notes he
reported that he had said that “dinosaurs” would “get passed
by.” (R. Exh. 21, p.e 3.)
Given the above, the Respondent’s contention that Thomp-
son and Timman made “false, slanderous, and defamatory
statements” about what Charlebois said at the December 7
meeting depends on the difference between the statement that
old dinosaurs “will be shot,” and the statement that old dino-
saurs either “may not survive,” or “will be left behind,” or will
get “passed by.” As discussed in the analysis section of the
decision, I find that it is unnecessary to resolve the factual
question of which of these very similar versions of the state-
ment is the most accurate since the difference between them is
not legally consequential under the Act.
The parties agree that Thompson completed the incident re-
port at the December 7 meeting after Charlebois threatened to
suspend him and made the comment regarding the fate of “old
dinosaurs.”
4. December 18: Employees discharged
As noted earlier, on December 18, 2015, the Respondent dis-
charged Dean, Smith, Thompson, and Timman. The Respond-
ent took this action without notifying these individuals, or the
Union, that the investigation of the union grievance alleging
misconduct by Charlebois had mutated into an investigation of
alleged employee misconduct in pursuing that grievance. The
termination letters presented to the four individuals set forth the
identical reason for the action—“false, slanderous, and defama-
tory statements you made about management, Chris
Charlebois.” Despite the long tenure of the employees, and the
fact that none of the four had, even in McKinley’s estimation,
“a lot” of prior discipline,8 the deliberations of the full-group of
managers did not include any discussion of the employees’
favorable disciplinary histories or of the possibility of imposing
discipline short of termination. (Tr. 844–847.) The ultimate
decision to discharge the employees was made by Ables, after
consulting with Herrmann, Carman, and McKinley—all of
whom supported the decision. Based on the record in this case,
and as discussed in the section of this decision addressing the
hallway encounter, I find that their view that the alleged dis-
criminatees had made slanderous statements was the product of
bias, not honest inquiry.9

8 Timman and Thompson had no history of prior discipline at all
during their decade-plus employment with the Respondent. Smith had
been disciplined only once, for an attendance matter over a decade
earlier. Dean had been disciplined in 2008 for a time and attendance
reporting issue, and in 2011 for an altercation with a coworker.
9 The Respondent unilaterally arranged for a polygraph examination
of Charlebois, and this examination was conducted on February 5,
2016. The Respondent offered evidence regarding the examination at
the hearing, and the General Counsel objected. While I permitted the
Respondent to present the polygraph evidence, I stated that I would
decide what, if any, weight it was appropriate to give that evidence
once the parties had had an opportunity to present arguments on the
subject in their post hearing briefs. After considering the matter, I have
determined that it is not appropriate to give the evidence of the poly-
graph examination any weight. I note, at the outset, that since the ex-
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
D. Complaint Allegation
The complaint alleges that, on about December 18, 2015, the
Respondent violated Section 8(a)(3) and (1) by discriminatorily
discharging employees Ricky Dean, Darrell Smith, Roy
Thompson, and Terry Timman because they supported and
assisted the Union and engaged in concerted activities.
III. ANALYSIS AND DISCUSSION
The Supreme Court has stated that “no one doubts that the
processing of a grievance” to assert a contractual right “is con-
certed activity within the meaning of Section 7” of the Act.10
NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 836 (1984).
Union officials engage in protected activity when they fulfill

amination was given well after the Respondent terminated the alleged
discriminates, it cannot logically be used to evaluate the honesty of the
Respondent’s investigative efforts or decision-making process. At any
rate, the case law shows that polygraph evidence is viewed with ex-
treme skepticism in federal proceedings. In United States v. Scheffer,
the Supreme Court upheld a per se rule excluding all polygraph evi-
dence in court martial proceedings. 523 U.S. 303 (1998). The Court
stated that “there is simply no consensus that polygraph evidence is
reliable.” Id. at 309. The Court cited a number of studies on the issue,
including one which found that the accuracy of polygraph examinations
is “‘little better than could be obtained by the toss of a coin.’” Id. at
310, quoting Iacono & Lykken, 1 Modern Scientific Evidence, Section
14-5.3 (1997). The Court of Appeals for the D.C. Circuit—one of the
two circuit courts that could be called upon to review the instant—has
adopted a per se rule excluding all polygraph evidence as unreliable.
United States v. Skeens, 494 F.2d 1050, 1053 (D.C. Cir. 1974). The
other circuit court where this matter could eventually be reviewed, the
Court of Appeals for the Sixth Circuit, has repeatedly stated that it
disfavors the admission of polygraph evidence, King v. Trippet, 192
F.3d 517, 523–524 & fn. 3 (6th Cir. 1999), and has expressed its long
held opinion that polygraph evidence is “inherently unreliable,” U.S. v.
Scarborough, 43 F.3d 1021, 1026 (6th Cir.1994).
Any possibility that it might be appropriate to give weight to the
polygraph evidence in this case is eliminated by the specific circum-
stances present here. The Respondent arranged for the polygraph ex-
amination unilaterally, meaning that the adverse parties had no oppor-
tunity to participate to ensure that the examination was conducted in an
impartial manner. The Sixth Circuit has repeatedly held that unilateral-
ly obtained polygraph evidence is too unreliable to be admitted. King
v. Trippet, supra: United States v. Sherlin, 67 F.3d 1208, 1216–1217
(6th Cir. 1995), cert. denied 516 U.S. 1082 (1996); Conti v. Commis-
sioner of Internal Revenue, 39 F.3d 658, 663 (6th Cir. 1994), cert.
denied 514 U.S. 1082 (1995). I give no weight to the unilaterally ad-
ministered polygraph examination arranged by the Respondent in an
effort to buttress the testimony of Charlebois.
Moreover, the specific examination results regarding the alleged
threats are particularly unhelpful here. The questions that the poly-
graph examiner asked Charlebois about his disputed statements were
whether he had threatened to shoot anyone, point a gun at anyone, or
line up people and shoot them. R. Exh. 17. The examiner found
Charlebois’ denials on this score truthful. However, the examiner
stated that he would have found Charlebois’ denial truthful even if, as
reported by Timman and Thompson, Charlebois had said that “old
dinosaurs will be shot,” since a statement threatening to shoot “anyone”
or “people” is not the same as one to shoot “dinosaurs.” Tr. 494–495.
10 Section 7 of the Act provides that employees have the right, inter
alia, to “assist labor organizations” and “engage in . . . concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection.” 29 U.S.C. Sec. 157.
their role in processing an employee grievance. Union Fork &
Hoe Co., 241 NLRB 907, 908 (1979). Indeed, the protection
afforded to union representatives who are processing a griev-
ance is robust and is not lost even if the representatives engage
in misconduct, “unless the excess is extraordinary, obnoxious,
wholly unjustified, and departs from the res gestae of the griev-
ance procedure,” Roemer Indus., Inc., 362 NLRB No. 96
(2015), quoting Clara Barton Terrace Convalescent Center,
225 NLRB 1028, 1034 (1976), and “is so violent or of such
character as to render the employee unfit for further service.”
Union Fork, supra. The Act’s protection extends beyond the
grievance process to employee complaints about supervisors’
treatment of them. Calvin D. Johnson Nursing Home, 261
NLRB 289, fn. 2 (1982); Avalon-Carver Community Center,
255 NLRB 1064 (1981); Dreis & Krump Mfg., Inc., 221 NLRB
309 (1975), enfd. 544 F.2d 320 (7th Cir. 1976); see also Ishi-
kawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354
F.3d 534 (6th Cir. 2004).
The Respondent contends that it lawfully discharged Dean,
Smith, Thompson, and Timman, for making slanderous state-
ments about Charlebois’ conduct towards employees. There is
no doubt that the allegedly slanderous statements that the Re-
spondent relies on were made by those employees in the course
of protected activity. The employees’ activity was protected
both because they were asserting a contractual right through the
grievance process and because they were complaining about a
supervisor’s treatment of unit employees. The protection ex-
tends, as well, to statements that Thompson made to law en-
forcement officers regarding Charlebois’ workplace conduct
because “[i]t has long been recognized that bringing a com-
plaint or grievance to the attention of public authorities is also
protected activity.” Marathon Oil Co., 195 NLRB 365, 367
(1972), enfd. 478 F.2d 1405 (7th Cir. 1973).
Under the standards set forth above, Respondent could not
lawfully discipline any of those employees for making inaccu-
rate statements in the course of their protected activity, unless
those statements were deliberately or maliciously false. Uni-
versal Fuels, 298 NLRB 254, 255 (1990); Walls Mfg. Co., Inc.,
137 NLRB 1317 (1962); see also Simplex Wire & Cable Co.,
313 NLRB 1311, 1315 (1994) (An employer may not “restrict
employees in the exercise of their Section 7 rights by prohibit-
ing statements which are merely false, as distinguished from
those which are maliciously so.”). In addition, since the state-
ments by the three union representatives were made in the con-
text of the grievance procedure, discipline was unlawful unless
any such statements rose to the level of misconduct that was
“extraordinary, obnoxious, wholly unjustified, and [a] de-
part[ure] from the res gestae of the grievance procedure,” and
so “violent or of such character as to render the employee unfit
for further service.” Roemer, Indus., supra; Union Fork, supra;
Clara Barton Terrace, supra.
Where, as here, the employer takes adverse action against an
employee for alleged misconduct occurring during the course
of the employee’s known protected activities, the employer has
the burden, under the U.S. Supreme Court’s analysis in Burnup
& Sims, of showing that it had an honest belief that the employ-
ee engaged in misconduct that stripped the employee’s activity
of its statutory protection. Modern Management Services, LLC,
OMNISOURCE CORP. 11
361 NLRB 228 (2014), citing NLRB v. Burnup & Sims, Inc.,
379 U.S. 21, 23 (1964); Akal Security, Inc., 354 NLRB 122,
124–125 (2009), reaffd. 355 NLRB 584 (2010). Therefore,
pursuant to Universal Fuels, and Walls Mfg., the Respondent
must show an honest belief not only that the employees’ reports
were inaccurate, but that their reports were deliberately or ma-
liciously false. In the case of the three union representatives,
the Respondent must show, in addition, an honest belief that the
statements were wholly unjustified, beyond the res gestae of the
grievance procedure, and so violent or of such character as to
render those employees unfit for further service. If the Re-
spondent meets the burden of showing this honest belief, its
actions are still a violation of the Act if the General Counsel
shows by a preponderance of the evidence that the employees
did not, in fact, engage in misconduct of that extreme character.
Modern Management Services, supra, citing Pepsi-Cola Co.,
330 NLRB 474 (2000); Wittek Industries, 313 NLRB 579, fn. 2
(1993). As discussed below, I find that under these standards,
the Respondent clearly violated Section 8(a)(3) and (1) of the
Act when it discharged the employees for the statements they
made as part of their protected union and concerted activity.
The Respondent proffers three instances of what it asserts are
deliberate or malicious falsehoods that remove the employees’
conduct from the Act’s protection. First, the Respondent alleg-
es that the employees maliciously lied when they reported that,
during a meeting on December 2, Charlebois asked whether it
was necessary to “hold a machine gun” to employees in order
to get something done. This alleged justification applies to
Union Officials Dean, Smith, and Timman, but not to employee
Thompson who was not present at the December 2 meeting and
made no reports about the statement. Even assuming that the
Respondent could demonstrate that it had an honest belief that
the three union representatives not only deliberately or mali-
ciously lied, but engaged in wholly unjustified conduct that
went beyond the res gestae of the grievance procedure when
they reported Charlebois’ statement, the Respondent’s defense
fails because the employees accurately reported what
Charlebois said. Modern Management Services, supra; Pepsi-
Cola Co., supra; Wittek Industries, supra. Specifically, a pre-
ponderance of the evidence shows that Charlebois did, on De-
cember 2, react to employees’ reluctance to volunteer for the
employee-management committees by asking whether it was
necessary to hold a machine gun to their heads to get something
done. The discharged employees’ truthful reports about
Charlebois’ statement, which they communicated in the course
protected activity, is not a lawful basis for discharging them
regardless of whether the Respondent incorrectly believed those
reports were maliciously false, or of whether management offi-
cials found them distasteful.
I note that, with respect to Dean and Smith, their account re-
garding the “machine gun” comment is the only alleged mali-
cious falsehood that the Respondent can reasonably attempt to
attribute to them. Neither of those individuals was a witness to
the other conduct by Charlebois, or claimed to have firsthand
knowledge regarding it. The record does not show circum-
stances that would justify holding Dean and Smith responsible
for the allegedly unprotected statements of others. Triple Play
Sports Bar, 361 NLRB 308, slip op at 5. Therefore, at this
point in the analysis, I find that, under the standards set forth
above, the Respondent violated Section 8(a)(3) and (1) of the
Act when it discharged Dean and Smith for statements they
made in the course of protected activity. Burnup & Sims, Inc.,
supra, Modern Management Services, supra, Pepsi-Cola, Co.,
supra, Universal Fuels, supra; Walls Mfg. Co., supra.
Second, the Respondent contends that Thompson’s report
that Charlebois grabbed him in the hallway on December 7
justifies his discharge. As discussed above, Thompson’s griev-
ance report was made in the context of protected activity and
therefore the Respondent has the burden of showing that it had
an honest belief that Thompson’s report was not only untrue,
but deliberately or maliciously false. Burnup & Sims, supra;
Modern Management Services, supra, Walls Mfg. Co., supra.
For the reasons discussed in the statement of facts, I find that
the Respondent has not met that burden. The record shows that
the Respondent’s supposedly “honest belief” was largely an
expression of McKinley’s preexisting bias and indignation that
an employee would make an accusation against a manager who
McKinley viewed as far above the employee’s station. Car-
man, one of the management officials who participated in mak-
ing the discharge decision, and supported it, mistakenly be-
lieved, based on what Oney told him, that all four employees,
including Thompson, had asserted that Charlebois threatened
that “we’re going to stand you up and mow you down with a
machine gun.” Oney’s report is exaggerated not only in the
sense that none of the four alleged discriminatees recounted
that extreme version of Charlebois’ comment, but also in that
one of the four, i.e., Thompson, was not even a witness to the
machine gun comment and made no report regarding it. Where
an employer’s conclusion that an employee made a maliciously
false statement is based on the exaggerated reports of interme-
diaries regarding what the employee said, as is the case here,
the responsibility for the exaggeration must be borne by em-
ployer, not the employee. Mojave Elec. Coop, 327 NLRB at
15.
As also found above, bias permeated the decision making
process that led to the discharges. The Respondent never even
gave the employees notice that it was investigating them for
misconduct, rather than investigating the employees’ grievance
regarding alleged misconduct by Charlebois. During the sup-
posedly open-minded portion of the investigation, Herrmann
(one of the decision making group) stated that he was “confi-
dent” that the employees were lying and suggested a strategy
for showing that this was the case. An employer does not have
an “honest belief” that employees engaged in misconduct
where the employer’s belief was not the result of an open-
minded inquiry, Wells Aluminum Corp., 319 NLRB 798, 813
(1995), revd. and remanded 113 F.3d 1236 (6th Cir. 1997), or
was formed “on the basis of an inquiry conducted in a partial
and superficial manner,” Orleans Mfg. Co., Inc., 170 NLRB
220, 226–227 (1968), enfd., 412 F.2d 94 (2d Cir. 1969). The
Respondent’s belief that Thompson was deliberately or mali-
ciously lying was based on an inquiry that was neither open-
minded nor impartial and therefore the Respondent has not met
its burden of showing that its belief was “honest.”
Assuming that, contrary to my findings, one assumes that the
Respondent had an honest belief that Thompson’s report about
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Charlebois’ hallway conduct was untrue, the General Counsel
has still established a violation because any inaccuracies that
arguably might exist in Thompson’s report about Charlebois’
hallway conduct do not, in fact, rise to the level of deliberate or
malicious falsehoods that can remove such reports from the
protection afforded to complaints about the treatment of em-
ployees. Universal Fuels, supra; Walls Mfg., supra. Even ac-
cording to Charlebois’ account: Charlebois stepped out of his
office in order to confront Thompson in the hallway;
Charlebois stood in a way that impeded Thompson from con-
tinuing down the hallway; Charlebois reached towards Thomp-
son; Thompson “hugged” the wall in an effort to avoid
Charlebois; and the two men brushed, or may have brushed,
each other, during the encounter. Assuming that Charlebois’
report gets every detail of the encounter right (something I
consider unlikely given other demonstrated shortcomings in his
testimony), his description was not far enough removed from
what Thompson reported as to render Thompson’s own account
a deliberate or malicious lie, especially given the emotionally
charged context, the close physical nature of the encounter, and
the contact that Thompson, even under Charlebois’ version, had
with the hallway wall and likely with Charlebois himself, while
squeezing between them. Any arguable inaccuracies in
Thompson’s report were, at most, “good-faith misstatements or
incomplete statements, not malicious falsehoods justifying
removal of the Act’s protection.” MasTec, 357 NLRB 103, slip
op. at 6; see also Cincinnati Suburban Press, 289 NLRB 966,
967–968 (1988) (an inaccurate communication does not lose
the protection of the Act unless it is sufficiently reckless or
maliciously untrue). Thus, under the applicable standards, even
if the Respondent had an “honest” belief that Thompson’s ac-
count was not accurate, under the circumstances present here
that would not remove those statements from the Act’s protec-
tion. “Protection is not lost simply because the employee im-
parts information that “is not entirely accurate, or is exaggerat-
ed or objectionable to the employer, provided, of course, the
information is not deliberately false or maliciously inspired.
Were it otherwise, the freedom of expression and communica-
tion enjoyed by employees, unions, and employers alike would
be very tenuous and dubious.” United Aircraft Corp., 139
NLRB 39, 46 (1962).
The Respondent’s remaining example of a supposedly delib-
erate or malicious falsehood is Thompson’s and Timman’s
report that, at the December 7 meeting, Charlebois said that
people would have to comply with the way things are being
done or “old dinosaurs” “will be shot.” As discussed in the
statement of facts, both the General Counsel’s and the Re-
spondent’s witnesses agree that Charlebois made a statement
about the unhappy fate that awaited “old dinosaurs.” The Re-
spondent’s claim that the employees’ version was maliciously
false is based on the difference between their version, i.e., “old
dinosaurs will be shot,” and the various versions given by the
two management witnesses, i.e., “old dinosaurs will not sur-
vive,” or old dinosaurs “will be passed by,” or old dinosaurs
“may be left behind.” Regardless of which, if any, of these
versions is completely accurate, the differences between them
is not nearly consequential enough to permit a finding of mali-
cious or deliberate lying. MasTec, supra; Cincinnati Suburban
Press, supra; United Aircraft Corp., supra. Such discrepancies
in the accounts of honest witnesses regarding the precise word-
ing used at meetings are commonplace and all but unavoidable.
Indeed, there were comparable discrepancies between man-
agement witness Oney’s testimony (dinosaurs may “not sur-
vive”) and Charlebois’ testimony (claiming he would “never”
have used the word “survive”) and even within Charlebois’
own trial testimony and between Charlebois’ trial testimony
and what he set forth in his written report during the investiga-
tion (dinosaurs will “not survive” versus dinosaurs may be “left
behind” versus dinosaurs will “get passed by”). Based on my
review of the record as a whole, I find by a preponderance of
the evidence that the discrepancies discussed above were not
the result of deliberate or malicious misrepresentations by
Thompson or Timman.11 In the case of Timman—a union rep-
resentative fulfilling his duty under the grievance procedure—
those discrepancies clearly did not meet the further requirement
of rendering his report wholly unjustified and beyond the res
gestae of the grievance procedure. Roemer, Indus., supra; Un-
ion Fork, supra.
I note, moreover, that in all the accounts, Charlebois made a
statement about what would happen to “old dinosaurs,” not
what would happen to people. Such a statement is idiomatic,
not literal. It refers to persons or things that are no longer use-
ful or are becoming obsolete.12 While all of the versions of his
statement would reasonably be perceived by employees as
threats of job-related consequences, none of the versions consti-
tuted a threat that Charlebois actually intended to enforce a
safety program by shooting noncomplying employees.13

11 McKinley testified that Timman’s report that Charlebois had said
old dinosaurs would be “shot” was inconsistent with his initial state-
ment to her on the subject. According to McKinley, when she interro-
gated him on December 8, Timman said “I might have heard something
about dinosaurs, but I don’t remember anything about shooting.” Tr.
945. As discussed earlier, I found McKinley to be a very biased wit-
ness and I consider her testimony regarding the December 8 meeting
self-serving and unreliable. Moreover, her testimony about what Tim-
man told her was uncertain on its face—she stated that it was her “re-
call” and “not verbatim.” Ibid. At any rate, the difference between the
versions is not significant insofar as Charlebois’ threat is substantially
the same regardless of whether one believes that he said the old dino-
saurs would be shot, or that old dinosaurs would not survive, or that he
used one of the other similar formulations that Charlebois reported.
12 See Farlex Dictionary of Idioms (downloaded 11/29/16) (defining
“go the way of the dinosaur(s)” as meaning “To become extinct, obso-
lete, old-fashioned, or no longer in common use”); and Cambridge
English Dictionary (downloaded 11/29/16) (“Dinosaur” is used disap-
provingly to refer to “an old-fashioned person or thing person or thing
that people no longer consider to be useful.”).
13 The Respondent discusses evidence that, during the grievance pro-
ceeding, Donnie Blatt—a union business manager who is not an em-
ployee of the Respondent and is neither an alleged discriminatee nor a
firsthand witness to any of Charlebois’ alleged misconduct on Decem-
ber 2 and 7—argued that Charlebois had violated the letter of under-
standing regarding “altercations” and that this warranted either remov-
ing Charlebois or reinstating two union employees discharged for simi-
lar violations. The December 8 grievance, which is signed by Timman,
also references the letter of understanding. Regardless of whether the
arguments about the applicability of the letter of understanding had
merit, the evidence shows that neither Thompson nor Timman, nor any
OMNISOURCE CORP. 13
For reasons discussed above, I find that the Respondent has
not shown that it had an honest belief that Thompson and Tim-
man were guilty of making maliciously or deliberately false
statements when they reported the “old dinosaurs” threat. As-
suming that the Respondent had such a belief, the General
Counsel has still shown a violation pursuant to Burnup, supra,
since the evidence shows that, even if Thompson’s or Tim-
man’s account of the threat was not entirely accurate, any inac-
curacies were not deliberate or malicious, but, at most, exam-
ples of the type of exaggerations and incorrect information that
the Board has held insufficient to vitiate the Act’s protection.
United Aircraft, supra; Jimmy John’s, supra; Universal Fuels,
supra; and Walls Mfg., supra.
For the reasons discussed above, I find that the Respondent
violated Section 8(a)(3) and (1) when, on December 18, 2015,
it discharged employees Thompson and Timman.
The ferocity of management’s response to the Union’s griev-
ance in this case is, in my view, shocking. Rather than simply
accepting or rejecting the grievance, the Respondent discharged
every one of the employees involved with pursuing that griev-
ance. All of those individuals were long-term employees of the
Respondent, and they included every current union representa-
tive at the facility. The Respondent did not stop there, but also
funded a defamation lawsuit seeking to extract monetary dam-
ages from the discharged workers. Although a showing of
employer animus against protected union or concerted activity
is not part of the legal analysis under the circumstances present
here, I note that the ferocity of the Respondent’s actions is hard
to fathom in the absence of a commitment on its part to chilling
protected activity.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The United Steel, Paper and Forestry, Rubber, Manufac-
turing, Energy, Allied-Industrial and Service Workers Interna-
tional Union, AFL–CIO/CLC, Local 9130-03 (the Union) is a
labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent violated Section 8(a)(3) and (1) of the
Act on December 18, 2015, when it discharged employees
Ricky Dean, Darrell Smith, Roy Thompson, and Terry Tim-
man.

of the other discharged individuals, gave deliberately or maliciously
false accounts of what Charlebois said and did. At any rate, as dis-
cussed above, statements that union officials make while processing a
grievance are afforded robust protection and do not lose that protection
even if they are exaggerated or inaccurate as long as they are not whol-
ly unjustified and beyond the res gestae of the grievance procedure.
Roemer Indus., supra; Union Fork, supra; Clara Barton Terrace Con-
valescent Center, supra. Similarly, the Respondent notes that Suther-
land complained to McKinley that a “supervisor was threatening them
with guns.” Sutherland, like Blatt, is not one of the employees who the
complaint alleges the Respondent discriminated against. Under the
circumstances present here, any improper statements that Blatt and
Sutherland may arguably have made are their own, and do not provide
a lawful basis for discharging Dean, Smith, Thompson, or Timman.
See Triple Play Sports, supra, slip op. at 5.
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, I shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the
policies of the Act. The Respondent, having discriminatorily
discharged Ricky Dean, Darrell Smith, Roy Thompson, and
Terry Timman, must offer them reinstatement and make them
whole for any loss of earnings and other benefits resulting from
that discrimination. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
at the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). The Respondent shall
file a report with the Social Security Administration allocating
backpay to the appropriate calendar quarters and shall also
compensate the discriminatees for the adverse tax consequenc-
es, if any, of receiving one or more lump-sum backpay awards
covering periods longer than 1 year. Latino Express, Inc., 359
NLRB 518 (2012).14
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended Order.15
ORDER
The Respondent, OmniSource Corporation, Mansfield, Ohio,
its officers, agents, and representatives, shall
1. Cease and desist from
a) Discharging or otherwise discriminating against any em-
ployee for supporting the United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied-Industrial and Service
Workers International Union, AFL–CIO/CLC, Local 9130-03
(the Union), or any other union, or for otherwise engaging in
activity protected by Section 7.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Ricky Dean, Darrell Smith, Roy Thompson, and Terry Timman
full reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.

14 The General Counsel also asks that the Respondent be ordered to
reimburse the discharged employees for all search-for-work and work-
related expenses regardless of whether the discriminatees received
interim earnings in excess of these expenses overall or in any given
quarter, and further to pay for all consequential damages incurred by
the discriminatees as a result of the Respondent’s unlawful conduct. I
cannot order these remedies because doing so would be contrary to
existing Board precedent. See, e.g., Guy Brewer 43 Inc., 363 NLRB
No. 173, slip op. at 2, fn. 2 (2016), Webco Industries, Inc., 340 NLRB
10, 16 (2003), Flannery Motors, Inc., 330 NLRB 994, 995 (2000).
15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Make Ricky Dean, Darrell Smith, Roy Thompson, and
Terry Timman whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writing
that this has been done and that the discharges will not be used
against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Mansfield, Ohio, copies of the attached notice marked
“Appendix.”16 Copies of the notice, on forms provided by the
Regional Director for Region Eight after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since December 18, 2015.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. February 13, 2017.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.

16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting the United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied-Industrial and Service
Workers International Union, AFL–CIO/CLC, Local 9130-03
(the Union), or any other union, or for otherwise engaging in
activity protected by Section 7
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Ricky Dean, Darrell Smith, Roy Thompson, and Terry Timman
full reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
WE WILL make Ricky Dean, Darrell Smith, Roy Thompson,
and Terry Timman whole for any loss of earnings and other
benefits resulting from their discharge, less any net interim
earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters.
WE WILL compensate Ricky Dean, Darrell Smith, Roy
Thompson, and Terry Timman for the adverse tax consequenc-
es, if any, of receiving one or more lump-sum backpay awards
covering periods longer than 1 year.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharges of
Ricky Dean, Darrell Smith, Roy Thompson, and Terry Tim-
man, and WE WILL, within 3 days thereafter, notify them in
writing that this has been done and that the discharges will not
be used against them in any way.
OMNISOURCE CORPORATION
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/08-CA-167138 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.