Precoat Metals

National Labor Relations Board - Board Decisions

May 28, 2004

341 N.L.R.B. 1137 (N.L.R.B. 2004)

PRECOAT METALS 1137
Precoat Metals and Chester Florian and Jim White
and Jack Focht

United Steelworkers of America, AFL–CIO–CLC,
Local 3911-09 and Chester Florian and Kenneth
Rolfe and Jim White. Cases 13–CA–37256, 13–
CA–37310, 13–CA–37343, 13–CB–15838, 13–
CB–15860, and 13–CB–15868
May 28, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On January 31, 2001, Administrative Law Judge Wil-
liam J. Pannier III issued the attached decision. The
General Counsel and Charging Parties Florian, Rolfe,
and Focht filed exceptions and supporting briefs. The
Respondent Employer filed exceptions, a supporting
brief, and answering briefs. The Charging Parties also
filed a Motion to Reopen the Record, and the Respondent
Employer filed a brief in opposition to the motion.1
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

1 In their Motion to Reopen the Record, Charging Parties Florian,
Rolfe, and Focht request that the record be reopened to introduce the
minutes of a July 12, 1998 union meeting. The Charging Parties aver
that they did not receive the minutes until February 23, 2000, in con-
nection with a different proceeding between the parties in Federal
court. They further maintain that the evidence bears on the judge’s
credibility determinations concerning key witnesses who testified on
behalf of Respondent Union.
We deny the Charging Parties’ motion. First, we find that the mo-
tion was not “promptly” filed as required by Sec. 102.48(d)(2) of the
Board’s Rules and Regulations. The Charging Parties received the
minutes on February 23, 2000, about 11 months before the judge’s
decision was issued in this case. The Charging Parties have not ade-
quately explained why they did not bring this evidence to the judge’s
attention prior to the issuance of his decision. They state only that they
“were not certain whether such a motion would be necessary.” The
judge’s decision was issued on January 31, 2001, and the motion to
reopen the record was not filed until April 4, 2001. The Charging
Parties were certainly aware after the issuance of the judge’s decision
that “such a motion would be necessary.” Yet, they have not explained
why they waited more than 2 months after the issuance of the judge’s
decision to file their Motion to Reopen the Record. Because the motion
to reopen the record was not filed “promptly” on the discovery of the
evidence, we deny the motion as untimely.
Second, the Board has long held that it will not reopen a record so
that a party may attack a judge’s credibility resolutions. Labor Ready,
Inc., 330 NLRB 1024, 1025 (2000); Vulcan Waterproofing Co., 327
NLRB 1100 (1999), enf. denied on other grounds 219 F.3d 677 (7th
Cir. 2000); P & T Metals, Inc., 316 NLRB 1189 fn. 2 (1995). Here, the
Charging Parties seek to introduce the additional evidence in order to
call into question the accuracy of the judge’s credibility findings. Ac-
cordingly, we deny the Charging Parties’ motion.
affirm the judge’s rulings, findings,2 and conclusions as
further discussed below, and to adopt the recommended
Order as modified and set forth in full below.3
I. INTRODUCTION
In his decision, the judge found that the Respondent
Employer did not violate Section 8(a)(3) and (1) of the
Act by suspending and discharging employees Chester
Florian and Jim White. The judge also found that the
Respondent Union did not violate Section 8(b)(1)(A) and
8(b)(2) of the Act. Thus, the judge concluded that the
Respondent Union did not cause the Respondent Em-
ployer to suspend and discharge Florian; did not fail to
process Florian’s and White’s grievances in a fair man-
ner; and did not fail to fairly represent employee Kenneth
Rolfe. For the reasons set forth in the judge’s decision,
we affirm his dismissal of those allegations.
We also affirm, for the reasons set forth by the judge,
his finding that the Respondent Employer violated Sec-
tion 8(a)(4) and (1) of the Act by placing employee Jack
Focht on paid leave of absence, offering Focht a last
chance agreement, and discharging him for talking to and
giving an affidavit to a Board agent. However, the judge
recommended that the Respondent Employer not be or-
dered to offer Focht reinstatement to his former position
with backpay. For the reasons set forth below, we agree
with the judge’s recommendation.
II. BACKGROUND
In brief, the facts concerning the Focht violations are
as follows. The Respondent Employer is engaged in the
business of coating metal coils for other companies.
Focht is a 35-year employee of the Respondent Em-
ployer. In 1991, he began working at the Respondent
Employer’s Chicago plant as a manager/supervisor. On
May 20, 1998,4 the Respondent Employer removed
Focht from his production manager position because he
allegedly engaged in discriminatory hiring practices as
found in the preliminary report of the Department of La-
2 The General Counsel and the Charging Parties have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3rd Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
In addition, some of the Charging Parties’ exceptions imply that the
judge’s findings and conclusions were the result of bias. On careful
examination of the judge’s decision and the entire record, we are satis-
fied that the Charging Parties’ contentions are without merit.
3 We shall modify the judge’s recommended Order in accordance
with our decision in Excel Container, 325 NLRB 17 (1997), and shall
substitute a new notice in accordance with our decision in Ishikawa
Gasket America, Inc., 337 NLRB 175 (2001).
4 All dates are in 1998, unless stated otherwise.
341 NLRB No. 143
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1138
bor, Office of Federal Contract Compliance Programs
(OFCCP). Focht remained employed by the Respondent
Employer and retained his production manager title be-
tween May and August, but did not possess managerial
or supervisory authority during that time.
On August 7, the OFCCP issued its final decision that
reaffirmed its preliminary holding that Focht had en-
gaged in discriminatory hiring practices. Notwithstand-
ing the OFCCP ruling, Regional Manager Ray Drufke
appointed Focht to a newly created business manager
position in mid-August. The judge found that despite
Focht’s title, the evidence failed to show that Focht’s
new position was supervisory or managerial within the
meaning of the Act. While the Respondent Employer
contends in its exceptions that Focht possessed supervi-
sory authority when he was the business manager, we
agree with the judge that the evidence establishes that
Focht’s status after May 20 was that of a statutory em-
ployee.
On August 31, Focht accompanied employees Florian
and Rolfe to the Board’s Chicago Regional Office and
gave an affidavit in support of Florian’s unfair labor
practice charge against the Respondent Employer. On
September 11, during a meeting with Drufke and Plant
Manager Jim Boyle Jr., Focht disclosed that he was
working with Florian’s attorney and “went to the
NLRB.” Thereafter, Drufke discussed the results of the
meeting with his supervisor, vice president of manufac-
turing, Roger Kramer, and they agreed to meet with
Focht on September 14. At the September 14 meeting,
Kramer, Drufke, and Focht discussed the Respondent
Employer’s treatment of Florian and the fact that Focht
was working with “someone’s attorney in conjunction
with the NLRB.” At the end of that meeting, the Re-
spondent Employer placed Focht on a paid leave of ab-
sence to do some “soul searching” and determine how he
could best serve the company in the future.
Focht remained on paid leave until October 28th when
he met with Kramer and Human Relations Director John
Christopher. At that meeting, Kramer offered Focht a
last chance agreement and a transfer to the Respondent
Employer’s Jackson, Mississippi facility. On November
2, Focht declined the last chance agreement and transfer.
On November 3, the Respondent Employer terminated
Focht.
The judge concluded that “a preponderance of the
credible evidence does establish that Focht had been
placed on paid leave on September 14, offered the last
chance agreement on October 28, and discharged on No-
vember 3 because Kramer discovered that Focht—a
statutory employee—had become involved with the
Board, in the course of working with ‘someone’s attor-
ney,’ and had decided to retaliate against Focht for hav-
ing engaged in this statutorily-protected conduct, in vio-
lation of Section 8(a)(4) and (1) of the Act.” We agree
with the judge.
The judge recognized that reinstatement and backpay
are the traditional Board remedies for a discriminatory
discharge. Indeed, the judge stated that “reinstatement is
a particularly important remedy to order in situations
where, as here, an employer’s discriminatory motivation
is one proscribed by Section 8(a)(4) of the Act.” Again,
we agree with the judge.
In Focht’s case, however, the judge determined that
the customary reinstatement and backpay remedies
should be withheld because Focht engaged in “deliberate
and malicious” conduct that undermined the Board’s
ability to effectively administer the objectives of the
Act.5 In support of his determination, the judge relied
essentially on two factors: (1) Focht’s false testimony at
the hearing and in his prehearing affidavit; and (2)
Focht’s misconduct during the course of his employment
with the Respondent Employer. Once more, we agree
with the judge. As discussed below, we find that it
would not effectuate the policies of the Act to award
Focht the remedies of reinstatement or backpay in the
circumstances of this case.
III. ANALYSIS
The Board is authorized under Section 10(c) of the Act
to remedy unfair labor practices with “such affirmative
action including reinstatement of employees with or
without back pay, as will effectuate the policies” of the
Act. Fibreboard Paper Products Corp. v. NLRB, 379
U.S. 203, 215 (1964). Congress has delegated “to the
Board the primary responsibility for making remedial
decisions that best effectuate the policies of the Act.”
ABF Freight System, Inc. v. NLRB, 510 U.S. 317, 323–
324 (1994). See 29 U.S.C. Sec. 160(c). Although rein-
statement and backpay are the usual remedies when an
employee has been unlawfully discharged,6 the Board
has, at times, decided not to grant those remedies where
doing so would not effectuate the policies of the Act.
For example, the Board has denied employees remedial
relief when they have engaged in conduct that abused
and undermined the integrity of the Board’s processes.
See, e.g., D.V. Copying and Printing, Inc., 240 NLRB
1276 fn. 2 (1979) (“subornation of perjury alone consti-
tutes deliberate and malicious conduct so calculated to
abuse and undermine Board processes” that the discrimi-

5 The judge cited Service Garage, Inc., 256 NLRB 931 (1981), enf.
denied on other grounds 668 F.2d 247 (6th Cir. 1982); and Owens
Illinois, 290 NLRB 1193 (1988), enfd. 872 F.2d 413 (3d Cir. 1989).
6 Sheller-Globe Corp., 296 NLRB 116 (1989).
PRECOAT METALS 1139
natee’s right to reinstatement and backpay was tolled “as
of the time of such conduct”).7
Recently, in Toll Mfg. Co., 341 NLRB No. 115, slip
op. at 3–5 (2004), the Board exercised its remedial dis-
cretion and decided not to award full backpay to a dis-
criminatee who lied under oath in a Board proceeding.8
The Board stated that in exercising its broad remedial
discretion in cases where a discriminatee has made false
statements or has otherwise engaged in misconduct dur-
ing Board proceedings, “the Board conducts a ‘balanc-
ing’ analysis and assesses the impact of the discrimina-
tee’s transgression on the integrity of the Board’s proc-
esses.” Toll Mfg., supra, slip op. at 4. The Board’s rem-
edy must “accord[ ] with the magnitude of the transgres-
sion” and must strike a balance “between the equally
important policies of discouraging unfair labor practices
by remedying them and protecting Board processes from
manipulation” by denying employees any benefit that
might flow from their interference with Board processes.
Id., slip op. at 4–5. In striking that balance, the Board
examines the seriousness and significance of the offense
to the outcome of the case, the overall veracity of the
discriminatee, and the impact of the offense on the integ-
rity of Board processes.
Applying that balancing test here, we conclude that, as
a result of his false testimony in his pretrial affidavit and
at the hearing, Focht has forfeited his entitlement to rein-
statement and backpay.
We agree with the judge that Focht’s lies undermined
the Board’s ability to administer the Act. The judge
found that Focht was a “generally untrustworthy wit-
ness” who “gave testimony totally lacking in effort to be
candid,” both during the hearing and in his prehearing
affidavit. In his affidavit, Focht lied to a Board agent
about the core issue involved in the unfair labor practice
charge filed by employee Chester Florian. The judge
found that Focht wholly invented conversations in which

7 Similarly, the circuit courts have declined to enforce Board orders
that awarded reinstatement and backpay to employees who lied to their
employers and in testimony under oath. NLRB v. Coca-Cola Bottling
Co., 333 F.2d 181, 185 (7th Cir. 1964), denying enf. of 142 NLRB
1030 (1963); Iowa Beef Packers, Inc. v. NLRB, 331 F.2d 176, 184–185
(8th Cir. 1964), denying enf. in relevant part of 144 NLRB 615 (1963).
8 Because the employer had already reinstated the employee, the ap-
propriateness of a reinstatement remedy was not at issue in Toll.
Member Schaumber dissented in Toll Mfg., supra. Because he found
that the respondent employer did not violate Sec. 8(a)(3) and (1) of the
Act by discharging the employee at issue in that case, Member
Schaumber did not reach the issue of whether backpay should be de-
nied. However, as explained at fn. 5 of his dissent in Toll, if Member
Schaumber had found the violation, he would have joined his col-
leagues in finding that backpay should be cut off as of Dec. 12, 2000,
the date that the employee at issue first lied under oath at a Board hear-
ing.
representatives from both the Union and management
demonstrated their animus in terminating Florian. These
falsehoods, in all likelihood, largely contributed to the
General Counsel’s decision to pursue the complaint and
caused the Board to expend considerable resources pur-
suing an ultimately groundless complaint. As the judge
stated, “supplying false statements during the investiga-
tive phase of the Board’s proceedings [led] the General
Counsel to make allegations not based in whole or in part
on credible evidence.” As the judge concluded, this con-
duct “is hardly a course which promotes effective ad-
ministration of the Act.”
Not only did Focht’s prehearing conduct cause the
Board to spend resources pursuing a groundless com-
plaint, but Focht continued to lie at the Board’s hearing
in this case. As in Toll Mfg., supra, in which full back-
pay was denied, Focht’s false trial testimony concerning
a central issue in the case prolonged the proceeding and
compounded the waste of the Board’s resources. Focht’s
lack of veracity was pervasive, and had a serious impact
on Board processes.9 For these reasons, we conclude, in
agreement with the judge, that Focht’s false statements in
his affidavit and at the hearing constituted “malicious
abuse of the Board’s processes,”10 and that in order to
protect the integrity of the Board’s processes it would not
effectuate the policies of the Act to allow Focht to bene-
fit from the Board processes that he abused.
Inasmuch as Focht’s remedies are being denied be-
cause of the insult to the Board’s processes resulting
from Focht’s lies, we find it unnecessary for the Respon-
dent Employer to show, in order to justify a denial of
remedy based on Focht’s false testimony, that it would
have lawfully discharged Focht, or any employee, for
that false testimony. Cf. Berkshire Farm Center, 333
NLRB 367 (2001), in which the Board stated that rein-
statement and backpay are appropriate unless the em-
ployer can show that the employee “engaged in miscon-
duct for which the employer would have discharged any
9 The cases relied on by our dissenting colleague, in which the Board
granted traditional remedies to employees who gave false testimony,
involve lies that were less substantial than those Focht perpetrated.
See, e.g., Service Garage, Inc., supra, 256 NLRB 931 (remedy not
forfeited where lie “did not go to the heart or even to the periphery of
the Board’s processes”); Owens Illinois, supra, 290 NLRB 1193 (where
the major portion of a discriminatee’s testimony at an unfair labor
practice hearing was credited and relied on, the discriminatee was given
a full remedy even though she gave some false testimony at the hear-
ing); Lincoln Hills Nursing Home, Inc., 288 NLRB 510, 512 (1988)
(the public interest in vindicating the Act outweighed “the evil to be
contemplated” from a discriminatee’s “insignificant trespass on the
truth” where a discriminatee’s false testimony constituted a “very small
part of his otherwise credible testimony and played no part in the out-
come of the case.”).
10 Service Garage, supra, 256 NLRB 931.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1140
employee.” In cases such as this one involving perjury
or other interference with Board processes, where the
Board’s motivation for the denial of remedy is the pro-
tection of the integrity of its own processes, an employer
need not meet the burden set forth in Berkshire Farm,
supra. In cases not involving interference with Board
processes, however, we shall continue to apply the stan-
dard set forth in Berkshire Farm, supra. See, e.g., Mar-
shall Durbin Poultry Co., 310 NLRB 68, 70 (1993),
enfd. in pertinent part 39 F.3d 1312 (5th Cir. 1994) (full
remedy denied because employer met its burden of
showing that employee who engaged in on-the-job sex-
ual misconduct would have been discharged for that con-
duct had the employer known about it); John Cuneo,
Inc., 298 NLRB 856 (1990) (full remedy denied because
employer showed that it “probably would not have re-
tained” the employee after it learned that he had misrep-
resented his employment history on his application).
Our dissenting colleague says that we have exagger-
ated the impact of Focht’s falsehoods on the administra-
tion of the Act. On the contrary, it is he who has mini-
mized their impact. As the Supreme Court stated in ABF
Freight, “[f]alse testimony in a formal proceeding is in-
tolerable. We must neither reward nor condone such a
‘flagrant affront’ to the truth-seeking function of adver-
sary proceedings.” 510 U.S. at 323.11 By finding that
Focht has not forfeited his reinstatement and backpay
remedies, our dissenting colleague is condoning false
testimony and thus compromising the effective admini-
stration of the Act. We are not, as our dissenting col-
league suggests, discouraging employees from testifying
before the Board; we are, however, discouraging em-
ployees from making false representations under oath to
the Board. Accordingly, we deny Focht reinstatement
and backpay to which he would have otherwise been
entitled.
Our dissenting colleague says that we are denying re-
instatement and backpay simply because Focht was dis-
credited. That is not the case. There is a difference be-
tween the discrediting of a witness and a finding that a
witness has deliberately lied. In the instant case, Focht
wholly invented conversations, and was “totally lacking
in effort to be candid.”
Our colleague also notes that some of the Respon-
dent’s witnesses were discredited. However, as noted

11 We recognize that, in ABF, the Court upheld the Board’s authority
to grant full relief to an employee-victim of an unfair labor practice,
even if that employee has lied in some respects. However, the funda-
mental principle of ABF is that the Board has the discretion to grant, or
not grant, such relief. Further, the Court’s strong language condemning
the act of lying in Board proceedings clearly indicates that the Court
would affirm a Board denial of relief in a case like the instant one.
above, there is a distinction between the discrediting of a
witness and a finding that a witness has deliberately lied.
Our colleague argues that Focht’s lies concerned a fel-
low employee, rather than Focht himself. We think that
this is classic distinction without a difference. The es-
sential point is that a person has deliberately lied to the
Board. It matters not that the lie concerned another per-
son.
Our dissenting colleague finds it particularly trouble-
some to deny relief in an 8(a)(4) case. We disagree.
Section 8(a)(4) is designed to insure the integrity of
Board processes. To award full relief to an employee
who has deliberately abused those processes would be
contrary to the very principles of Section 8(a)(4).
Having found that Focht has forfeited full backpay as a
result of his false testimony, we must determine whether
he is entitled to any backpay at all. In cases involving
forfeiture of remedy for abuse of Board processes, back-
pay is tolled as of the time the abuse occurred. See Toll
Mfg., supra (backpay tolled at the time of discriminatee’s
first material lie under oath); Lear-Siegler Management
Service, 306 NLRB 393, 394 (1992) (backpay tolled as
of date employee threatened witness to induce him to
testify); D.V. Copying, supra (backpay tolled as of date
of subornation of perjury).12 Consistent with Board
precedent, we find that Focht is not entitled to any back-
pay after August 31, the date of Focht’s affidavit and his
first material lie under oath. Because Focht had not yet
been discharged as of the date of his affidavit, we con-
clude that Focht is not entitled to any backpay in this
case.
While Focht’s abuse of Board processes is the sole and
independent reason for the denial of reinstatement and
backpay, we agree with the judge that, in addition to his
false testimony, Focht also engaged in misconduct in the
workplace that demonstrated a lack of trustworthiness.
Thus, Focht’s false testimony, which is the sole basis for
the denial of the remedy, was not inconsistent with a
12 Because the conduct requiring forfeiture of the discriminatee’s
remedy in this case is the abuse of Board processes rather than other
“misconduct for which the employer would have discharged any em-
ployee,” Berkshire Farm, supra, we believe that it is appropriate to toll
backpay as of the date the Board’s processes were compromised, rather
than the date the employer acquired knowledge that the discriminatee
had engaged in that misconduct. Just as whether the employer would
or would not have discharged the employee for abusing Board proc-
esses is irrelevant to our inquiry as to whether the employee’s remedy
should be forfeited, the date the employer first acquired knowledge of
the employee’s abuse of Board processes is irrelevant to our decision as
to when backpay should be tolled. Compare cases not involving abuse
of Board processes such as John Cuneo, supra (backpay tolled when
employer first acquired knowledge of application falsification); Mar-
shall Durbin, supra (backpay tolled when employer first attained
knowledge of sexual misconduct).
PRECOAT METALS 1141
pattern of earlier misconduct. Thus, the judge opined,
and we agree, that Focht sowed the seeds of distrust and
conflict among the employees, the Respondent Em-
ployer, and the Respondent Union, and that that behavior
was so disruptive to harmonious labor relations as to
warrant a denial of the usual reinstatement remedy.
The judge set forth numerous examples of Focht’s
misconduct. We agree with the judge’s assessment of
Focht’s conduct, both when he was a supervisor and
when he was an employee. We are convinced, for the
reasons set forth by the judge, that reinstating Focht
would not effectuate the purposes of the Act. For exam-
ple, Focht granted employee Florian’s request for a day
off, even though Focht lacked the necessary authority to
do so. After management rescinded Focht’s action,
Focht did not reveal the true facts to Florian and instead
allowed Florian to believe that the Respondent Union
improperly caused his request to be denied. Focht al-
lowed the “conflict” between Florian and the Respondent
Union to remain uncorrected.
Focht also falsely told Florian, after Florian had been
suspended for violating a work rule, that “he [Florian]
got set up” by both the Respondent Employer and the
Respondent Union. This caused Florian to distrust the
Respondent Union.
Additionally, after Florian was warned by management
about his violation of a work rule, Florian spoke to
Focht, and Focht told Florian to disregard the warning.
Florian was discharged because he followed Focht’s ad-
vice.13
As a result of these and other incidents discussed by
the judge, the judge concluded that, if reinstated, Focht
“would locate other ‘conflicts’ that he could create for
unit employees, Respondent Union, and Respondent
Employer.” In light of this, as well as his lack of trust-
worthiness and false testimony before the Board, we find
that Focht is unfit for reemployment with the Respondent
Employer and that it would not effectuate the policies of
the Act to order his reinstatement.
Our dissenting colleague asserts that, in relying on
these incidents, we have failed to apply the precedent
discussed in Berkshire Farm Center, supra, 333 NLRB
367 (holding that reinstatement is appropriate unless the
employer can show that the employee engaged in mis-
conduct for which the employee would have been dis-
charged). However, as we noted above, the Berkshire
Farm standard does not apply in cases involving abuse of
the Board’s processes. In the instant case, the abuse of
Board procedures was not inconsistent with a pattern of

13 Although our dissenting colleague opines that these findings are
based on inferences, we find that the inferences are amply supported by
the record.
earlier misconduct. Our dissenting colleague therefore
suggests that the Berkshire Farm standard applies. We
disagree. The standard applied in cases involving abuse
of Board processes is the one set forth above. We fail to
see why this standard should be abandoned simply be-
cause the abuse of Board processes is not inconsistent
with a pattern of earlier misconduct.
Finally, contrary to the assertion of our dissenting col-
league, we are not leaving the unfair labor practice “es-
sentially unremedied” and allowing the Respondent Em-
ployer to “escape the consequences of its violation” of
Section 8(a)(4). As pointed out by the judge, the Re-
spondent Employer remains subject to a cease-and-desist
Order, which will “remain as background should the Re-
spondent Employer again engage in conduct which vio-
lates Section 8(a)(4) of the Act.” We agree with the
judge that this is “not an inconsiderable consequence.”
See Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 904 fn. 13
(1984) (“Were [the Respondent] to engage in similar
illegal conduct, [it] would be subject to contempt pro-
ceedings and penalties. This threat of contempt sanc-
tions thereby provides a significant deterrent against fu-
ture violations of the Act.”).
ORDER
The National Labor Relations Board orders that the
Respondent, Precoat Metals, Chicago, Illinois, its offi-
cers, agents, successors, and assigns shall
1. Cease and desist from
(a) Placing on paid leave of absence, offering a last
chance agreement to, discharging, or otherwise discrimi-
nating against employees, for having filed charges or
given testimony, including in the form of an affidavit,
under the National Labor Relations Act.
(b) In any like or related manner interfering with, re-
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the National La-
bor Relations Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, remove
from its files any reference to Focht’s placement on a
paid leave of absence, offer of a last chance agreement,
and discharge, and within 3 days thereafter, notify him in
writing that this has been done and that the leave of ab-
sence, last chance agreement, and discharge will not be
used against him in any way.
(b) Within 14 days after service by the Region, post at
its facility in Chicago, Illinois copies of the attached no-
tice marked “Appendix.”14 Copies of the notice, on
14 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-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1142
forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 September 14, 1998.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER WALSH, dissenting in part.
I agree with my colleagues and the judge that the Re-
spondent violated Section 8(a)(4) and (1) by placing em-
ployee Jack Focht on a leave of absence, offering him a
last chance agreement, and discharging him, all for giv-
ing testimony in the form of an affidavit under the Act.1
However, as set forth below, I do not agree with their
refusal to grant Focht the traditional remedies of rein-
statement and backpay.
Section 10(c) of the Act grants the Board broad discre-
tionary authority to devise remedies that effectuate the
policies of the Act. “The underlying policy of Section
10(c) of the Act . . . is ‘a restoration of the situation, as
nearly as possible, to that which would have obtained but
for the illegal discrimination.’” Trustees of Boston Uni-
versity, 224 NLRB 1385 (1976), enfd. 548 F.2d 391 (1st
Cir. 1977), quoting Phelps Dodge Corp. v. NLRB, 313
U.S. 177, 194 (1941). “Where a respondent has been
found to have . . . unlawfully discharg[ed] employees, we
have long held that the best way to ensure that discrimi-
natees are restored ‘as nearly as possible’ to the position
they would have been in absent the unlawful discrimina-
tion is to require the respondent to reinstate those em-
ployees and to make them whole by awarding them
backpay in the amount they would have earned but for
the respondent’s unlawful discrimination.” Sheller-
Globe Corp., 296 NLRB 116 (1989). Traditional rein-
statement and backpay remedies should only be withheld

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.”
1 I also agree with my colleagues that the judge properly dismissed
the other allegations in the complaint.
“where the circumstances require forfeiture of remedy to
effectuate the purposes of the Act.” Iowa Beef Packers,
Inc., 144 NLRB 615, 622 (1963), enf. denied in pertinent
part 331 F.2d 176 (8th Cir. 1964). This is not such a
case.
In denying Focht reinstatement and backpay, my col-
leagues rely on two grounds: (1) Focht’s false testimony
under oath in his pretrial affidavit and at the hearing; and
(2) Focht’s conduct during his employment that caused
conflict in the workplace. Neither of these is sufficient
under Board precedent to justify the denial of the
Board’s traditional remedies to Focht.
A. False Testimony
Although false testimony by a discriminatee may war-
rant a denial of remedies if it reaches the level of “mali-
cious abuse of the Board’s processes,”2 the Board is not
precluded from granting reinstatement and backpay to an
employee who has testified falsely if it would effectuate
the policies of the Act to grant those remedies.3 In ABF
Freight System v. NLRB, 510 U.S. 317 (1994), the Su-
preme Court upheld the Board’s decision to grant rein-
statement and backpay to a discriminatee who committed
perjury while testifying before an administrative law
judge.4 Although the Court expressed its concern about
the seriousness of the discriminatee’s misconduct,5 the
Court also recognized that there were countervailing con-
siderations. “Most important is Congress’ decision to
delegate to the Board the primary responsibility for mak-
ing remedial decisions that best effectuate the policies of
the Act when it has substantiated an unfair labor prac-
2 Service Garage, Inc., 256 NLRB 931 (1981), enf. denied on other
grounds 668 F.2d 247 (6th Cir. 1982); Owens Illinois, 290 NLRB 1193
(1988), enfd. 872 F.2d 413 (3d Cir. 1989).
3 “The Board has often ordered the reinstatement of discriminatees
despite findings that they had perjured themselves at the hearing” D. V.
Copying & Printing, Inc., 240 NLRB 1276, 1288 (1979), citing Trus-
tees of Boston University, 224 NLRB 1385, 1401–1402, 1410 (1976),
enfd. 548 F.2d 391 (1st Cir. 1977); Coca-Cola Bottling Co. of Mem-
phis, 232 NLRB 794, 809, 812 (1977), enfd. as modified 616 F.2d 949
(6th Cir. 1980), cert. denied 449 U.S. 998 (1980). See also, Service
Garage, supra, 256 NLRB at 931 (discriminatee’s false testimony,
although “deliberate and willful,” did not warrant a forfeiture of the
usual Board remedies); Owens Illinois, supra, 290 NLRB at 1193
(Board granted reinstatement and backpay to a discriminatee despite
five “examples of untruthfulness” in her testimony); Lincoln Hills
Nursing Home, Inc., 288 NLRB 510, 512 (1988); Iowa Beef Packers,
Inc., 144 NLRB 615, 622 (1963), enf. denied in pertinent part 331 F.2d
176 (8th Cir. 1964).
4 304 NLRB 585, 591 (1991), enfd. sub nom. Miera v. NLRB, 982
F.2d 441 (10th Cir. 1992), affd. sub nom. ABF Freight System v. NLRB,
510 U.S. 317 (1994).
5 The Court stated that “[f]alse testimony in a formal proceeding is
intolerable. We must neither reward nor condone such a ‘flagrant
affront’ to the truth-seeking function of adversary proceedings.” 510
U.S. at 323.
PRECOAT METALS 1143
tice.”6 Thus, the Supreme Court held that it was within
the Board’s discretion to award a full remedy to a dis-
criminatee who falsely testified at an administrative hear-
ing.
Recently, in Toll Mfg. Co., 341 NLRB No. 115 (2004),
the Board reviewed the law concerning the appropriate-
ness of granting traditional Board remedies to an em-
ployee who lied under oath in a Board proceeding.7 In
Toll, the Board stated that in deciding whether traditional
remedies should be forfeited for abuse of Board proc-
esses, the Board must strike a balance “between the
equally important policies of discouraging unfair labor
practices by remedying them and protecting Board proc-
esses from manipulation” by denying employees any
benefit that might flow from their interference with
Board processes. Toll Mfg., supra, slip op. at 5. In con-
ducting this “‘balancing’ analysis,” the Board assesses
“the overall veracity of the discriminatee,” as well as the
“magnitude of the transgression” and its “impact on the
Board’s processes.” Id., slip op. at 4.
Applying the principles in Toll to the facts of this case,
my colleagues erroneously conclude that Focht has for-
feited his entitlement to the Board’s traditional remedies.
The proper application of the principles in Toll, however,
leads to the conclusion that Focht is entitled to reinstate-
ment and backpay.
As the Board recognized in Toll, not every lie requires
forfeiture of the Board’s remedies. In Toll, however, the
employee’s repeated lies went to the central issue in the
case, and the employee in Toll “abused the Board’s proc-
esses for his own benefit.” 341 NLRB No. 115, slip op.
at 5. Further, the employee’s lies in Toll caused the
Board to unnecessarily reopen the record and hold a sec-
ond unfair labor practice hearing. In contrast, here,
Focht did not manipulate the Board’s processes to obtain
a remedy for himself, and his false testimony was unre-
lated to the legality of his discharge. Although the judge
found that Focht was a generally untrustworthy witness,
the judge did credit the portion of Focht’s testimony re-
lating to the 8(a)(4) violation found by the judge. Unlike
in Toll, Focht’s false testimony did not impact in any
way on the unfair labor practice to be remedied and did
not result in any benefit to Focht. Under these circum-
stances, the fact that Focht’s testimony on other matters
in the case was discredited should not preclude any rem-
edy for Focht, a victim of an unfair labor practice under
Section 8(a)(4) of the Act. See, e.g., Lincoln Hills Nurs-

6 510 U.S. at 323–324. The Court noted that Section 10(c) of the
Act expressly authorizes the Board to determine whether reinstatement
and backpay “will effectuate the policies of [the Act].”
7 In Toll, the Board concluded that the employee was not entitled to
a full backpay remedy. Reinstatement was not at issue.
ing Home, supra, 288 NLRB at 512 (discriminatee’s de-
liberate false testimony did not preclude a remedy where
“it cannot be said that [the discriminatee] abused the
Board’s unfair labor practice proceedings for his own
benefit,” because none of the violations about which he
falsely testified entitled him to receive any remedial
benefits.) A forfeiture of remedy should be reserved for
cases in which an employee seeks to profit from his
abuse and manipulation of Board processes.
My colleagues and the judge have exaggerated the
magnitude and impact of Focht’s false testimony on the
administration of Board processes. The judge stated that
“it is fair to conclude that this proceeding would not have
been so prolonged, had those false statements not been
made during the investigation.” This “conclu[sion]” is
mere speculation on the part of the judge and is no basis
for refusing to grant Focht reinstatement and backpay.
Here, Focht’s version of the events in this case was dis-
credited, but his testimony did not rise to the level of
“malicious abuse” of Board processes requiring “forfei-
ture of remedy to effectuate the purposes of the Act.”
Toll Mfg., supra, slip op. at 4.
My colleagues have also failed to give any significant
weight to the adverse impact their decision will have on
the administration of the Act. Because Focht has been
denied his traditional remedies merely because he was
discredited, employees will be discouraged from testify-
ing in Board proceedings for fear that they, too, will lose
any potential remedies in the event they are discredited.
Witnesses’ versions of events are routinely discredited in
whole or in part in most Board cases, but remedies have
been denied only “where the circumstances require for-
feiture of remedy to effectuate the purposes of the Act.”
Iowa Beef Packers, Inc., supra, 144 NLRB at 622.8 My
colleagues have not shown that a forfeiture of Focht’s
remedies here, where the discredited testimony was unre-
lated to the unfair labor practice to be remedied and
Focht received no benefit from his discredited testimony,
is necessary to effectuate the policies of the Act.
In denying reinstatement and backpay to Focht, my
colleagues have also failed to take into account some of
the counterveiling considerations supporting a remedy
for Focht discussed in ABF Freight, supra. In that case,
the Court noted that the administrative law judge had
refused to credit a number of the employer’s witnesses,
and that the “unfairness of sanctioning [the discrimina-
tee] while indirectly rewarding those witnesses’ lack of
candor is obvious.”9 This inequity was a factor leading
to the Court’s conclusion that the Board did not abuse its
8 See also D.V. Copying, supra, 240 NLRB at 1288.
9 510 U.S. at 325.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1144
discretion in awarding a full remedy to the discrimina-
tee.10
As in ABF Freight, Focht was not the only witness
who testified falsely in this case. Although the judge
found Focht to be “a generally untrustworthy witness,”
the judge also found that vice president Kramer’s testi-
mony “regarding his motivation for [taking adverse ac-
tion against Focht] was no more reliable than that of
Focht.” In addition, the judge was critical of the testi-
mony of plant manager Boyle and human relations direc-
tor Christopher. Indeed, in the introductory section of
his decision, the judge stated that there was “little basis
for relying upon the testimonies of many of the principal
witnesses.”
Thus, here, as in ABF Freight, “[t]he unfairness of
sanctioning [Focht] while indirectly rewarding [the Re-
spondent Employer’s] witnesses’ lack of candor is obvi-
ous.” 510 U.S. at 325. Furthermore, in assessing the
equities of the situation, it is important to consider the
fact that the Respondent Employer is the wrongdoer that
has been shown to have acted with a motive proscribed
by the Act, and withholding reinstatement and backpay
would leave the Respondent Employer’s unfair labor
practices substantially unremedied. As the Board stated
in Owens Illinois, supra, 310 NLRB at 1193, the “denial
of the normal remedy leaves the effects of the Respon-
dent’s unlawful conduct unremedied and thus fails to
effectuate the policies of the Act.” Leaving the effects of
an 8(a)(4) violation essentially unremedied is particularly
troublesome, because that provision was enacted to pro-
tect the integrity of the Board’s processes.11 While my
colleagues claim to be motivated by the protection of the
Board’s processes, they are actually undermining, rather
than protecting, the effective administration of the Act by
failing to adequately remedy the 8(a)(4) violation in this
case, and by discouraging employee testimony under the
Act. Although false testimony is not to be rewarded or
condoned, it will not effectuate the policies of the Act to
withhold the traditional remedies of reinstatement and
backpay from Focht under the circumstances of this case.

10 As stated in D.V. Copying, supra, 240 NLRB at 1288, “some lee-
way must be extended to an employee who has been the object of
unlawful discrimination, particularly since the falsity has no predictable
effect on future employment. . . . [T]here is, perhaps, a certain weighing
of equities in such cases, since the employers’ representatives will
necessarily also have been found to have perjured themselves by de-
claring that their motive for discharge was pure.”
11 As conceded by the judge, “reinstatement is a particularly impor-
tant remedy to order in situations where, as here, an employer’s dis-
criminatory motivation is one proscribed by Sec. 8(a)(4) of the Act. To
allow conduct motivated by that proscription to be left unremedied by
reinstatement would naturally compromise a statutory prohibition
aimed at effective administration of the Act. See, e.g., Oil City Brass
Works v. NLRB, 357 F.2d 466, 471 (5th Cir. 1966).”
B. Misconduct During Employment
Although finding Focht’s false testimony to be the
“sole basis for the denial of the remedy,” my colleagues
do not stop there. Instead, they go on in dicta to cite
various incidents occurring during the course of Focht’s
employment that they believe render Focht unfit for re-
employment. In relying on this “pattern of earlier mis-
conduct” to support their withholding of Focht’s rein-
statement remedy, my colleagues have seriously misap-
plied Board precedent.
“When an employee is unlawfully discharged, rein-
statement and backpay are appropriate remedies unless
the employer can show subsequent conduct, or discovery
of conduct, that would have resulted in a lawful dis-
charge.” Berkshire Farm Center, 333 NLRB 367 (2001).
Under established Board precedent, “if an employer es-
tablishes that an employee engaged in misconduct for
which the employer would have discharged any em-
ployee, reinstatement is not ordered and backpay is ter-
minated on the date the employer first acquired knowl-
edge of the misconduct.” Berkshire Farm, supra, citing
Marshall Durbin Poultry Co., 310 NLRB 68, 70 (1993),
enfd. in pertinent part 39 F.3d 1312 (5th Cir. 1994); John
Cuneo, Inc., 298 NLRB 856 (1990).12
Here, the judge set forth a litany of transgressions
committed by Focht during his employment that the
judge believed precluded Focht’s reinstatement. The
judge found that Focht sowed the seeds of distrust and
conflict among the employees, the Respondent Em-
ployer, and the Respondent Union, and concluded that
Focht’s behavior was so disruptive to harmonious labor
relations as to warrant a denial of remedial relief.
12 My colleagues state that this precedent is not applicable where a
forfeiture of remedy results from alleged abuses of Board processes. In
such cases, my colleagues apply the principles set forth in Toll Mfg.,
supra. My colleagues agree, however, that this precedent is applicable
where it is alleged that other types of misconduct justify the denial of
traditional remedies. Because the judge and my colleagues rely on
misconduct not involving the abuse of Board processes to justify their
denial of traditional remedies, this precedent is applicable to that mis-
conduct.
PRECOAT METALS 1145
My colleagues affirm the judge.13 In doing so, the ma-
jority has totally misapplied the burdens of proof set
forth in Berkshire Farm. Under that precedent, it is the
employer’s burden initially to show “subsequent con-
duct, or discovery of conduct.” 333 NLRB at 367. In
order to meet this burden, the employer must show either
that the conduct occurred after the discharge, or, if the
conduct occurred during the course of the employee’s
employment, that the employer did not discover it until
after the discharge. Here, there is no contention that
misconduct occurred after the discharge. Rather, the
misconduct relied on by my colleagues to support the
denial of Focht’s reinstatement occurred during the
course of Focht’s employment. Of critical importance is
the fact that the Respondent Employer, the party with the
burden of proof under Berkshire Farm, has not shown
that it first became aware of this conduct after Focht’s
discharge. For this reason alone, the majority errs in
relying on the “pattern of earlier misconduct” to support
withholding the reinstatement remedy.
In addition, the Respondent Employer has not satisfied
the second prong of the Berkshire Farm test. Under that
prong, it is the employer’s burden to show that the em-
ployee’s misconduct was of a type that “would have re-
sulted in a lawful discharge.” Berkshire Farm, 333
NLRB at 367. The Respondent Employer obviously has
not carried that burden because the conduct the majority
relies on was tolerated by the Respondent Employer dur-
ing the course of Focht’s employment. Inasmuch as the
Respondent Employer did not discipline Focht for that
misconduct at the time it occurred, the Respondent Em-
ployer cannot show now that it is the kind of misconduct
for which it would have discharged any employee.14

13 One “incident” relied on by the majority was constructed by the
judge’s piling of inference on inference. After Florian was warned by
management about his violation of a work rule, the judge inferred (1)
that Florian spoke to Focht and (2) that Focht told Florian to disregard
the warning. Building on those inferences, the judge “infer[red] that
Florian was discharged as a result of following Focht’s advice.” It is
well established, however, that “inferences must be founded on sub-
stantial evidence upon the record as a whole” and that “an inference
based upon an inference” is not permissible. Steel-Tex Mfg. Corp., 206
NLRB 461, 463 (1973). The judge’s series of inferences lack eviden-
tiary support in the record, and must be rejected on that basis. Simi-
larly, the judge inferred that, if reinstated, Focht “would locate other
‘conflicts’ that he could create for unit employees, Respondent Union,
and Respondent Employer.” This aspect of the judge’s rationale rests
on nothing more than conjecture, surmise, and speculation, a wholly
inadequate basis for withholding the customary remedies for unlawful
conduct.
14 My colleagues refuse to apply Berkshire Farm to the misconduct
during Focht’s employment, stating that Focht’s false testimony is the
“sole basis” for the denial of the remedy. Despite that purported dis-
claimer, however, my colleagues nonetheless cite the “pattern of earlier
misconduct” as support for their finding that Focht is unfit for reem-
ployment with the Respondent Employer. My colleagues cannot evade
Not only have my colleagues totally misapplied both
prongs of the Berkshire Farm test, but their opinion is
also completely inconsistent with their own conclusion
that Focht was unlawfully discharged in violation of Sec-
tion 8(a)(4) and (1). Implicit in that conclusion is a de-
termination that the Respondent Employer did not meet
its burden under Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), of showing that Focht would have been dis-
charged for lawful reasons in the absence of his protected
activity. Yet, what the Respondent Employer failed to
show at the merits stage it successfully established at the
remedial stage, for the majority inconsistently holds that
Focht engaged in misconduct during his employment for
which the Respondent Employer would have discharged
any employee. In essence, under the guise of addressing
a remedial issue, the majority is permitting relitigation of
a Wright Line issue. There is absolutely no precedent
whatsoever supporting this bizarre approach.
In ruling from on high that Focht’s misconduct was so
“disruptive to harmonious labor relations” as to require
the forfeiture of the Board’s traditional remedies, the
majority has taken the classic misstep, long condemned
by the courts, of impermissibly substituting its own
judgment for that of the Respondent Employer. See
NLRB v. Columbus Marble Works, 233 F.2d 406, 413
(5th Cir. 1956) (“[M]anagement is for management.
Neither Board nor Court can second-guess it or give it
gentle guidance by over-the-shoulder supervision.”).
Where, as here, an employer has decided not to discipline
an employee for conduct occurring during the course of
his employment, the NLRB should not assume the role of
a super-personnel board and reevaluate that decision.
C. Conclusion
In sum, the factors relied on by my colleagues and the
judge do not support a denial of Focht’s remedies in this
case. Focht’s behavior during the course of his employ-
ment did not amount to conduct for which the Respon-

the application of Berkshire Farm merely because the misconduct
during Focht’s employment is only a supporting reason for their deci-
sion not to reinstate him. If Focht’s conduct during the course of his
employment is being used to support a denial of reinstatement, Berk-
shire Farm applies to that misconduct and, as set forth above, the Re-
spondent has not met the burden set forth in that case. Contrary to my
colleagues’ suggestion, by applying Berkshire Farm to the conduct
during Focht’s employment, I am not “abandon[ing]” the Toll standard
applicable to cases involving abuse of Board processes. Rather, as set
forth above, I have appropriately applied the Toll standard to Focht’s
false testimony. In addition, I have appropriately applied the Berkshire
Farm standard to Focht’s misconduct during his employment. Having
applied the applicable standard to each type of misconduct committed
by Focht, I conclude, for the reasons set forth above, that neither
Focht’s false testimony nor his misconduct during his employment is
sufficient to warrant a denial of Focht’s traditional remedies.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1146
dent Employer “would have discharged any em-
ployee,”15 and Focht’s lies in his affidavit and at the
hearing did not reach the level of “malicious abuse of the
Board’s processes” requiring “forfeiture of remedy to
effectuate the purposes of the Act.”16 By denying Focht
the traditional remedies of reinstatement and backpay
under these circumstances, my colleagues are allowing
the Respondent Employer to effectively escape the con-
sequences of its violation of Section 8(a)(4) of the Act,
and are undermining, rather than effectuating, the poli-
cies of the Act.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

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

WE WILL NOT place on paid leave of absence, offer a
last chance agreement to, discharge, or otherwise dis-
criminate against employees for having filed charges or
given testimony, including in the form of an affidavit,
under the National Labor Relations Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to Jack
Focht’s unlawful placement on paid leave of absence,
offer of a last chance agreement, and discharge, and WE
WILL, within 3 days thereafter, notify him in writing that
this has been done and that the leave of absence, last
chance agreement, and discharge will not be used against
him in any way.
PRECOAT METALS
Diane E. Emich and Homero Tristan, for the General Counsel.
James N. Foster Jr., Geoffrey M. Gilbert Jr., and with them on
brief, Michelle M. Cain (McMahon, Berger, Hanna, Lini-

15 Berkshire Farm, supra.
16 Toll Mfg., supra, slip op. at 4.
han, Cody & McCarthy), of St. Louis, Missouri, and Robert
Christopher, of Hackensack, New Jersey, for the Respon-
dent-Employer.
David L. Gore and David L. Gore Jr., of Chicago, Illinois, for
the Respondent-Union.
Timothy J. Coffey, of Chicago, Illinois, for Charging Parties
Florian, Rolfe, and Focht.

DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I heard
this case in Chicago, Illinois, on May 17 through 19, and on
August 10 through 13 and 16 through 18, 1999, and on January
18 through 21 and 24 through 27, 2000. On December 14,
1998,1 the Regional Director for Region 13 of the National
Labor Relations Board (the Board) issued an Order consolidat-
ing cases, consolidated complaint and notice of hearing, based
on unfair labor practice charges filed between August 4 and
September 23,2 alleging violations of Sections 8(a)(1), (3), and
(4) and 8(b)(1)(A) and (2) of the National Labor Relations Act
(the Act). The Regional Director issued an amendment to con-
solidated complaint and notice of hearing on April 26, 1999,
and a second amendment to consolidated complaint and notice
of hearing on April 29, 1999.
All parties have been afforded full opportunity to appear, to
introduce evidence, to examine and cross-examine witnesses,
and to file briefs. Based on the entire record, on the briefs
which were filed, and on my observation of the demeanor of
the witnesses, I make for following.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Respondent-Employer, Precoat Metals, is a corporation
which is a division of Sequa Corporation. Sequa has contracts
with the Federal Government, but Respondent-Employer does
not. Rather, at all material times it has engaged in the business
of coating metal coils for other companies. Those companies
supply Respondent-Employer with coils of metal which Re-
spondent-Employer paints to customer specification, after
which the painted coils are returned to the customers for instal-
lation in steel buildings and mobile homes, as well as in appli-
ances such as washers, dryers, and refrigerators.
Obviously, line speed is important for Respondent-
Employer’s operation: the faster coils can be coated—the
“through-put”—the greater the earnings derived by Respon-
dent-Employer. Yet, through-put is not the lone consideration
1 Unless stated otherwise, all dates occurred during 1998.
2 The charges in Cases 13–CA–37256 and 13–CB–15838 were filed
by Chester Florian on August 14, and Florian filed amended charges in
Case 13–CB–15838 on August 31 and, again, on November 6. The
charge in Case 13–CB–15860 was filed by Kenneth Rolfe on August
31, with an amended charge filed by Rolfe on November 6. The
charges in Cases 13–CA–37310 and 13–CB–15868 were filed by James
White on September 4, and White filed an amended charge in Case 13–
CB–15868 on November 4. The charge in Case 13–CA–37343 was
filed by Jack Focht on September 23.
PRECOAT METALS 1147
in its process. The appropriate amount of coating must be ap-
plied. Failure to do so results in low film: a lack of appropriate
paint thickness which can lead to discoloration and, even, coat-
ing lift-off from substrate caused when it is exposed to the
sun’s ultraviolet rays.
Over time Respondent-Employer has added to its number of
facilities. By the time of the hearing it had facilities in St.
Louis, Missouri; Houston, Texas; Chicago and Granite City,
Illinois; Portage,3 Indiana; McKeesport, Pennsylvania; and, its
newest facility, Jackson, Mississippi. In addition, it and an-
other company operate a joint venture at a second Granite City
facility. Aside from ability to handle a greater volume of coil
coating, another reason for adding a new facility was to effect
improvements in then-existing facilities. For example, the
nonjoint venture Granite City facility was built in 1981, with an
eye toward improving less than satisfactory personnel perform-
ance, quality and productivity at the St. Louis facility. In con-
sequence, it is unrefuted, operations at that Granite City facility
are conducted in a highly structured and disciplined manner,
with the result that that facility is the leader among not only
Respondent-Employer’s facilities, but also in the overall coat-
ing industry.
For administrative and supervisory purposes, Respondent-
Employer groups its facilities, apparently in pairs. Thus, the
sometimes mention in the record of Lithostrip refers to an in-
ternal grouping, under a regional manager, of the Houston and
Chicago facilities. At the time, or sometime after, operations
began around 1995 in Portage, the facility there and the Chi-
cago facility were paired for administrative and supervisory
purposes under Regional Manager Raymond Drufke.
The unfair labor practice allegations all pertain to events oc-
curring at the Chicago facility. It is admitted that the 12-month
period preceding issuance of the consolidated complaint is a
representative period for jurisdictional purposes and, in addi-
tion, that during that period Respondent-Employer sold goods
and materials valued in excess of $50,000 which were shipped
directly from the Chicago facility to points outside of the State
of Illinois. Therefore, it is further admitted that at all times
material Respondent-Employer has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
To properly understand events during 1998, which have
given rise to the complaint’s allegations, there is no escaping a
need to understand in some detail certain aspects of Chicago
operations. That facility is located at 4800 South Kilbourn
Street. It occupies an entire city block on the westside of South
Kilbourn.4 South Kilbourn is a north-south public thorough-
fare, with a public park located across the street from Respon-
dent-Employer, on the eastside of South Kilbourn. On the
northside, the facility is bounded by 48th Street and on the
southside by 49th Street.
Three buildings are located on Respondent-Employer’s Chi-
cago lot. A paint vault is situated on the southwest corner.
More importantly, two adjoining buildings are located on the

3 Sometimes misspelled “Portidge” in the record.
4 Occasionally misspelled in the record as “Kilborne” and, at some
places in the formal documents, as “Kilbourne.”
east or front side of the lot, collectively extending the entire
length along South Kilbourn from 48th Street to 49th Street.
Both are approximately the same length, extending from each
respective corner to about midway on South Kilbourn. But, the
building at 48th Street extends roughly twice as far back on the
lot. It is referred to as the main building. On the front of it,
facing onto South Kilbourn, are two docks or bays, referred to
in the record as C-Bay and D-Bay.
The second building—referred to as the annex—has no
opening onto South Kilbourn, so far as the record discloses.
Rather, several docks open at the south end onto 49th Street.
Until the mid-1990s Respondent-Employer leased only a por-
tion of the annex, affording it access to between two and four of
the building’s docks. At some point during 1994 or 1995 it
leased, or perhaps bought, the entire annex building. One result
was an increase in overall parking space at the facility.
Three parking areas exist along South Kilbourn, on the apron
between that street and the main and annex buildings. Prior to
1997 employees also could park in the lot’s open areas, behind
and between the three buildings—referred to as the backyard—
inside a fence erected along the open perimeter areas, where
there are no buildings facing a street. However, thefts began
occurring from the backyard. There are four security cameras,
two of which scan the South Kilbourn parking areas, one which
scans 49th Street and the fourth which scans the backyard.
Nevertheless, the thefts continued until Respondent-Employer
decided to close and lock the backyard gate opening onto 49th
Street. Thereafter, the backyard was used for storage of mate-
rials and no parking was allowed in it.
Even so, parking is still available in the South Kilbourn park-
ing areas and along the curbs of streets which form the perime-
ter of the Chicago facility. In addition, once the entire annex
was acquired, employees were allowed to drive through its
docks and park inside the annex so long, of course, as they did
not block dock entrances. Few employees appear to have
availed themselves of that opportunity and for a reason.
Most of Respondent-Employer’s Chicago employees work in
the main building. The offices are located there. In fact, the
South Kilbourn parking area nearest 48th Street is designated
for office personnel parking. All production lines are also lo-
cated in the main building. Thus, all production or “line” em-
ployees work in that building and, seemingly, park near the
South Kilbourn entrances to it. Also working in the main
building are operations5 support employees.
Operations support employees perform a number of nonpro-
duction line duties: shipping and receiving product, operating
crane(s) and forklifts, fetching paint and other materials to the
paint vault and production lines. Most of them work regularly
in the main building, though periodically some must make trips
to the annex. Two of them on each of the three shifts—a ship-
ping clerk and a loader—work regularly in the annex. From
there they ship completed coil orders to customers. As might
be obvious, the loader is the employee who operates a forklift
to load the trucks picking up those orders. In the course of
performing their own duties other operations support employ-
5 Sometimes spelled in the plural—operations—in the transcript and
other times in the singular: operation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1148
ees may come to the annex and work in it, such as when replac-
ing absent shipping clerks and loaders, picking up paint and
other material stored in the annex to take to other locations in
the Chicago facility, and moving finished product to the annex
for shipment to customers. Conversely, it seems not disputed,
annex shipping clerks and loaders will sometimes perform
other operations support functions in the main building, as
needed.
Shipping clerks and loaders assigned to the annex appear to
ordinarily park in the annex or at street locations adjacent to it.
So, too, do a few—two or three—other main building produc-
tion and support employees. All of those employees are re-
quired to punch in when commencing work and to punch out at
conclusion of their shifts. There is only one timeclock and it is
situated in the main building. In consequence, annex employ-
ees must enter the main building to punch in each day and then
go to the annex, and must leave each day by way of the main
building, to punch out on its timeclock. For as long as anyone
seems able to remember most, perhaps all, employees working
in the annex, as well as those main building employees who
park in or near the annex, followed a regular procedure of arriv-
ing for work, parking temporarily by the main building’s docks
or bays, going into the main building and punching in, return-
ing to their vehicles and driving along South Kilbourn and 49th
Street to their parking spots. They would reverse that process
when their shifts ended: drive along 49th and South Kilbourn
Streets to the main building’s docks or bays, park temporarily
near them, enter the main building and punch out, then return-
ing to their vehicles and leaving.
At the Chicago—and apparently at some, if not all, of Re-
spondent-Employer’s other facilities, such as the one in Hous-
ton—there is a rule, denominated work rule 11 at Chicago,
which prohibits, “Leaving company premises without permis-
sion of supervisor during scheduled work hours.” That prohibi-
tion was formulated to prevent employees, after punching in
and before punching out for the workday, from leaving for
lunch and personal business, which ended up extending beyond
scheduled break periods. Still, the fact is that, read literally,
work rule 11’s prohibition extends to driving along South Kil-
bourn and 49th Streets after having punched in and before hav-
ing punched out—the procedure outlined above for employees
who park in and adjacent to the annex. Nevertheless, prior to
the summer of 1998, the rule was never applied to that proce-
dure. Nothing was ever said to any of the employees engaging
in it and nothing was ever said to their collective-bargaining
representative about driving on those streets after having
punched in and before having punched out.
Respondent-Employer has collective-bargaining relations
with labor organizations at five of its facilities. The Chicago
facility is one of them. During events at issue, it was party to a
collective-bargaining contract, having a stated term of Decem-
ber 16, 1995, through December 15, 1999, with United Steel-
workers of America, AFL–CIO, CLC, herein referred to as
Steelworkers. Steelworkers did not, itself, directly deal with
Respondent-Employer on a day-to-day basis with regard to
Chicago employees. At the time the contract became effective,
its administration was handled by United Steelworkers Local
Union 7045. Then, on May 1, 1996, Steelworkers merged 19
local unions, including Local Union 7045, into a single local:
United Steelworkers of America, AFL–CIO, CLC, Local 3911.
To preserve the separate identity of what had formerly been 19
separate local unions, each representing employees of a differ-
ent employer, Steelworkers assigned suffix numbers, 3911-00
through 3911-18, to what became 19 separate bargaining units
encompassed by a single local union. Thus, Respondent-
Employer’s production, maintenance and warehouse employ-
ees, plant clerical employees, and inspectors at Chicago—all
line and support employees—became represented by United
Steelworkers of America, AFL–CIO, CLC, Local 39911-09,
herein called Respondent-Union, which is a labor organization
within the meaning of Section 2(5) of the Act.
At the time of signing the above-mentioned 1995–1999 col-
lective-bargaining contract, there were four officers of Local
7045: a “Local President, Unit Chairman” and three grievance
committeemen or grievers, as mentioned in article XII of that
contract. Prior to the merger each of the other 18 separate local
unions also had a president. Following that merger, the presi-
dent of each local became a unit chairman, reflecting the 19
separate bargaining units encompassed by the Union. Overall,
the Union had a single president and 11 other constitutional
officers.6 Pursuant to Steelworkers’ international constitution,
elections are conducted every 3 years both for unit officers and,
separately, for local officers. By the time the hearing com-
menced, the most recent elections had been conducted during
the spring of 1997, and elections were to be conducted during
2000. As will be seen below, those elections become the start-
ing point for the consolidated complaint’s allegations.
Before that, however, one aspect of the 1995–1999 collec-
tive-bargaining contract should be clarified. Its article XIII sets
forth a grievance procedure which, for the most part, is unre-
markable: a step 1 meeting between supervisor and employee
who may chose to be accompanied by a union representative; a
step 2 meeting between “the Committee” and regional manager
or his designated representative; a step 3 meeting between the
director of labor relations or his designated representative and
“the Committee” which “may” also be attended by a represen-
tative of Steelworkers. The next step is arbitration. However,
the discretion implied by the word “may” at step 3 should not
be regarded literally.
Steelworkers employ officials designated as service and staff
representatives. Each one is assigned to assist one or more
local unions when negotiating contracts and processing griev-
ances. It is unrefuted that, regardless of collective-bargaining
contract language, it is the appropriate staff representative who
handles grievances once they reach step 3 and who handles
arbitration of grievances. Local and unit officials are free to
express opinions about how grievances should be processed
during those stages of disputes resolution. But it is the staff
representative who makes final decisions about whether or not
to process grievances into and past step 3 and into arbitration,

6 For purposes of completeness, Local 3911 was abolished as a result
of amalgamation which occurred during August 1999. Replacing it
was United Steelworkers of America, AFL–CIO, CLC, Local 9777.
Suffixes were retained, however, with the result that Respondent-
Employer’s Chicago employees became represented by Local 9777–09.
PRECOAT METALS 1149
and who makes final decisions concerning how grievances will
be handled in those contractual steps. However, other than
bargaining and limited grievance handling, staff representatives
exercise no authority over local union or unit officers.
In addition, under article XIII, section 3 of the 1995–1999
contract, it is not possible for Respondent-Employer to simply
discharge a represented Chicago employee. Rather, if it feels
that discharge is warranted, it must notify Respondent-Union
and, at that point, can only suspend the employee. The period
of suspension allows Respondent-Union’s committeemen to
investigate and, if warranted, meet with Respondent-
Employer—in a so-called “sit down” meeting—to discuss the
propriety of the penalty before discharge is actually effected.
Against the foregoing background, the scenario supporting
the consolidated complaint’s allegations, as amended, seems
relatively straightforward. An operations support employee
attempted to run for unit chairman, against the incumbent, dur-
ing the unit’s 1997 election, but was declared ineligible for
having failed to attend the required number of union meetings
during the 2-year period preceding that election. There was no
opposition to reelection of the incumbent unit chairman and,
consequently, he was reelected. The ineligible employee, how-
ever, declared his intention to run for unit chairman in 2000.
Hostile toward that employee for having tried to run in 1997,
and for expressing intent to run in 2000, the unit chairman at-
tempted to persuade Respondent-Employer to discharge the
employee, according to the complaint. On August 4, continues
the scenario, those ongoing attempts achieved success: the dis-
sident operations support employee was suspended under work
rule 11 for having driven on South Kilbourn Street, between the
annex and main building, to clock out on August 3 and, then,
on August 10 was discharged.
In the interim between August 3 and 10, another employee
also drove on South Kilbourn from the annex to the main build-
ing to clock out. Discovering that from security camera tape,
Respondent-Employer suspended that employee on August 13
and discharged him on September 4. That employee had not
been involved in any internal union activity which endangered
the incumbency of any of the four unit officers. But, the argu-
ment proceeds, to protect the asserted legitimacy of its motiva-
tion for the dissident’s termination, Respondent-Employer had
to suspend and fire that other employee, since his action had
been identical to that of an employee already suspended and
discharged for such conduct.
Respondent-Union did meet with Respondent-Employer’s
officials about, and did file grievances concerning, those two
suspensions and discharges. Under the scenario sketched to
support the complaint’s allegations, however, it had been to
benefit Respondent-Union’s unit chairman that the first em-
ployee had been discharged and Respondent-Union could
hardly represent that employee in the manner contemplated
under the Act. Moreover, inasmuch as the second employee
had been fired to protect the asserted legitimacy of the dissi-
dent’s discharge, Respondent-Union was hardly in a position to
properly represent him. So, it is alleged, Respondent-Union
violated the Act by its unfair, arbitrary and invidious represen-
tation of those two employees. In addition, it is alleged that the
unit chairman unlawfully threatened employees with unspeci-
fied reprisals for affiliation with the dissident employee and, in
addition, inflicted injury upon the second employee, by grab-
bing and choking him, because that second employee “repeat-
edly referred to” the discharged dissident.
A third employee enters the scene during August. He had
earlier been laid off. During his brief tenure with Respondent-
Employer he had not been involved in any internal union activ-
ity. Even so, it is alleged that Respondent-Union, since August,
has refused to file a grievance concerning recall rights of that
third employee because he became affiliated with the first—
dissident—employee.
On Monday, August 31 a business manager, formerly Chi-
cago production manager, went to the Board’s Regional Office
where he gave an affidavit in support of the dissident em-
ployee’s by-then filed unfair labor practice charge. According
to the consolidated complaint, that business manager was dis-
charged on September 14 because he had done so. Actually, he
was not discharged on September 14; he was put on leave of
absence on that date. Later, he was offered a transfer to Re-
spondent-Employer’s Jackson, Mississippi facility and, when
he declined to accept that offer, was terminated on November
3. Still, those events—leave of absence, offer of transfer and
November 3 discharge—were litigated and it is argued that
every one of them had been motivated by the business man-
ager’s contact with the Regional Office.
There is nothing extraordinary about any one of the forego-
ing allegations. Historically, some labor organizations have
singled out dissidents, have made threats against them and
other employees associated with them, and have caused or at-
tempted to cause their employers to discriminate against them.
Employers have discharged such dissidents in response to un-
ion-efforts to have them discharged. Employers have dis-
charged nonactivist employees in an effort to disguise unlawful
motivation for discharging activist-employees. Employers have
also discharged personnel, employees and supervisors, for giv-
ing affidavits during investigation of unfair labor practice
charges. Labor organizations have processed grievances in
unfair, arbitrary, and invidious fashion. What is extraordinary
here, however, is the extent of mendacity displayed by the prin-
cipal witnesses in this case.
To be sure, in most cases there is a certain amount of “confu-
sion as to details,” NLRB v. ILWU, Local 10, 283 F.2d 558, 563
(9th Cir. 1960): see also, Doral Building Services, 273 NLRB
454 fn. 3 (1984), by witnesses, showing no more than “fallibil-
ity of memory,” NLRB v. American Art Industries, 415 F.2d
1223, 1227 (5th Cir. 1969), ordinarily encountered in human
affairs. Beyond that, it is not unusual for witnesses in these
cases to embellish some aspects of their accounts, while dimin-
ishing other aspects—to try to put their thumbs on the scale, as
it were. And in this case, there were a number of instances
where it appeared that witnesses became confused by counsels’
seeming failure to have taken adequate notes concerning earlier
testimony, as well as by all too-frequent efforts to tailor ques-
tioning in an effort to have witnesses agree to implications that,
in fact, those witnesses never asserted and did not agree could
be derived from their earlier descriptions.
Even so, it is not possible to review the transcript and escape
the conclusion that witnesses were attempting to tailor their
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1150
accounts, sometimes constructing accounts completely out of
the whole cloth, to support the positions of the side(s) which
those witnesses favored and, on the other hand, to portray the
other side(s) in the most unfavorable light possible. Indeed,
those efforts sometimes amounted to a thorough trashing of
anyone who disagreed with the positions favored by those wit-
nesses.7 For example, internal contradictions are revealed by
comparison of accounts of particular events given on direct
examination with testimony about those same events elicited
during cross-examination and, even, during redirect examina-
tion, as well as recross-examination. Witnesses whose interests
seemed aligned8 failed to corroborate each other, when testify-
ing about the same event, and, indeed, often contradicted each
other. Accounts were advanced that either did not conform to
objective considerations or were at odds with those considera-
tions. Mere generalized accounts were supplied when specific
accounts seemed warranted by situations presented and, in fact,
were necessitated by specific matters in issue.
In sum, review of the record, standing alone, leaves little ba-
sis for relying upon the testimonies of many of the principal
witnesses. Beyond that, such a review serves to confirm my
impression, formed as those witnesses were testifying, that
rather than attempting to candidly relate which had occurred,
those witnesses were tailoring their accounts to advance the
cause of the side(s) they favored and to inflict maximum dam-
age on the opposing side(s). In that regard, it cannot be over-
looked that, by the time they testified in this proceeding, many
principal witnesses had already been involved in grievance and
arbitration proceedings and in depositions given during pro-
ceedings before the United States District Court for the North-
ern District of Illinois, Eastern Division, as well as having
given affidavits during the investigative phase of this proceed-
ing. By the time that they testified in this proceeding, there-
fore, they were hardly novices in the process of being ques-
tioned about, and giving answers concerning, events brought
into issue by the consolidated complaint. Beyond that, partici-
pation in those proceedings, and the questioning directed to

7 Indeed, if past is any indication of prologue, I have no doubt that
charges of bias will ensue from what is written in this decision, just as
was, in effect, anticipated in Handicabs, Inc., 318 NLRB 890, 895 fn. 4
(1995), and as, in fact, came to pass. Handicabs, Inc. v. NLRB, 95 F.3d
681, 684 (8th Cir.1996), cert. denied 521 U.S. 1118 (1997). The fact,
however, is that witnesses in this case have no one to blame but them-
selves for testifying in a manner that leads to adverse conclusions about
their credibility and which, as shown in succeeding subsections, “were
properly and necessarily acquired in the course of the proceedings,”
Liteky v. U.S., 510 U.S. 540, 551 (1994), in which those witnesses
testified.
8 There are instances in this case when witnesses who facially
seemed aligned with a particular party—such as officers and agents of a
party—in fact had interests which diverged from those of that party.
For example, it might be assumed that former Regional Manager Ray-
mond Drufke’s interest would naturally correspond with those of Re-
spondent-Employer. However, he seemed to favor the above-
mentioned alleged discriminatee-business manager and, beyond that, to
harbor some antipathy toward two of Respondent-Employer’s Chicago
facility officials. In short, the reality here did not always conform to
stereotypical situations based upon seeming facial organizational
alignment.
them, seems to have alerted the principal witnesses to accounts
that would and would not be helpful to the side(s) favored by
each, to a degree not ordinarily encountered during the quarter
century unfair labor practice hearings in which I have been
involved.
In light of that situation, certain general principles of credi-
bility should be placed in focus at the outset. First, testimony
cannot be relied upon when it conflicts with judicial admissions
(the pleadings) or with facts stipulated by the parties. See, e.g.,
Boydston Electric, Inc., 331 NLRB 1450, 1451 (2000), and
cases cited therein. Moreover, testimonial admissions are to be
accorded significant weight.
Second, while uncontradicted testimony need not always be
blindly accepted, the very absence of contradiction distin-
guishes such testimony from that which is contradicted. That
is, there must be good reason for accepting testimony which is
not contradicted. “Although the Board may dismiss or disre-
gard uncontroverted testimony, it may not do so without a de-
tailed explanation.” (Citation omitted.) Missouri Portland
Cement Co. v. NLRB, 965 F.2d 217, 222 (7th Cir. 1992). A
corollary to that more general principle is that general or “blan-
ket” denials will not suffice to refute specific and detailed tes-
timony advanced by an opposing side’s witnesses. See, e.g.,
Williamson Memorial Hospital, 284 NLRB 37, 39 (1987); Em-
erson Elec. Co v. NLRB, 649 F.2d 589, 592 (8th Cir. 1981); and
Mastercraft Casket Co. v. NLRB, 881 F.2d 542 8th Cir. 1989).
Another corollary is that professed lack of recollection does not
suffice as refutation of positive testimony and, accordingly,
falls short of creating an issue of fact. Indian Hills Care Cen-
ter, 321 NLRB 144, 150 (1996). See also, Shelby Memorial
Hospital Assn. v. NLRB, 1 F.3d 550 (7th Cir. 1993).
Third, with some relation to what has been said in the imme-
diately preceding paragraph, when one witness testifies with
specificity about an event, and an opposing witness advances
merely a vague or generalized account about that same event,
the account of the first tends to be inherently regarded as the
more reliable one. For, “general testimony does not address the
factual situation in issue.” Emergency One, Inc., 306 NLRB
800 (1992). “Comparative vagueness [can be] central to the
credibility determination,” Fieldcrest Cannon, Inc. v. NLRB, 97
F.3d 65, 71 (4th Cir. 1996), and an account which is vague
tends, at the very least, to demonstrate uncertainty about what
actually occurred. See, e.g., General Telephone Co. of Michi-
gan, 251 NLRB 737, 740 (1980); and Ohio New & Rebuilt
Parts, Inc., 267 NLRB 420, 421 (1983).
Fourth, failure to supply corroborating testimony and other
evidence, standing alone, is not fatal. See, e.g., Laborers Local
190 (ACMAT Corp.), 306 NLRB 93 fn. 2 (1992); C.P. & W.
Printing Ink Co., 238 NLRB 1483 (1978), and, more generally,
U. S. v. Ginn, 87 F.3d 367, 369 (9th Cir. 1996). Nevertheless,
absence of corroboration is a factor, in some instances a most
persuasive one, for determining whether testimony should or
should not be credited. See, e.g., SCA Services of Georgia, 275
NLRB 830, 832–833 (1985); and C & S Distributors, Inc., 321
NLRB 404 fn. 2 (1996). Beyond that, reliability of testimony is
certainly brought into question whenever it is contradicted by
the testimony of an ostensibly corroborating witness. See, e.g.,
Advance Development Co., 275 NLRB 186 (1985).
PRECOAT METALS 1151
With these principles in mind, attention turns finally to the
events giving rise to the alleged unlawful conduct of Respon-
dent-Employer and Respondent-Union, herein collectively
referred to as Respondents.
B. April 1997 Internal Union Election
As pointed out in the preceding subsection, the starting point,
in the scenario presented to support the consolidated com-
plaint’s allegations, is Respondent-Union’s 1997 unit and local
union elections. More specifically, in addition to voting for
officers of Local 3911, as a whole, employees of Respondent-
Employer voted in April 1997 for unit chairman, three griev-
ance committeemen and a recording secretary. All incumbent
officers ran for reelection: Richard Damron,9 an admitted statu-
tory agent of Respondent-Union at all material times, who had
been employed by Respondent-Employer in maintenance and
who had been president of Local 7045 until the above-
described 1998 merger, after which he had become unit chair-
man; grievance committeemen John Robinson—who had been
employed for 33 years at Respondent-Employer’s Chicago
facility as a coater operator in the main building and who had
been a grievance committeeman since 1991—Jesse or Jessie
Forias and Glen Thomas. Norman Sandquist or Sundquist was
the incumbent recording secretary.
During the nominating meeting conducted during March of
1997, the only employee, other than Damron, to be nominated
for unit chairman was Chester Florian. Florian had worked for
Respondent-Employer at the Chicago facility since 1991 as a
loader-forklift operator, for the most part in the annex. He had
never held office in Respondent-Union, nor with Local 7045,
prior to 1997. However, he had briefly held the position of
president of another Steelworkers’ local union during the
1970s, when he had been employed at another company, Ball
Metal.
Several employees, in addition to the three incumbents, were
nominated for the grievance committeeman positions: Joseph
T. “Tom” Phillips,10 a production line worker for Respondent-
Employer at Chicago since October 2, 1992; Wayne Crylen,11
who had worked for Respondent-Employer a total of 37 years
and in operations support at the Chicago facility since the mid-
1980s, though on leave of absence since August 1, 1998; Edu-
ardo Morales, an operations support employee for Respondent-
Employer at Chicago since March 8, 1994; and, Manuel Esco-
bedo,12 an operations support employee at Chicago since Sep-
tember 1993. Either Donna Frank or Frank Mego, depending
upon whose account is more accurate, ran against the incum-
bent Sandquist or Sundquist for recording secretary.
Given its seeming noncontroversial background nature, it
would appear that the evidence pertaining to the April 1997
unit election would require relatively brief discussion. Follow-
ing their nominations, Florian, Phillips, and Crylen were told
that they were not eligible to run for unit office, because none

9 Often misspelled in the record as “Damaron.”
10 A few times misspelled in the record as “Philips.”
11 Misspelled variously as “Krylin,” “Kryland,” “Crowley,” “Cry-
land,” and “Crylin” in the record.
12 Misspelled variously in the record as “Escopito,” “Esposito,” and
“Escobito.”
of them had attended the minimum number of union meetings
during the preceding 2 years. They then took two steps. They
went to speak with the staff representative handling grievances
and bargaining with Respondent-Employer. They approached
then-Production Manager Jack Focht to ascertain how many
union meetings could be eliminated from the last 2 years’
count, because one or more of the three employees had been
scheduled to work, and had worked, on the Sundays when those
meetings were conducted. That effort failed to render any one
of them eligible. Phillips circulated a petition to waive the
meeting requirement among Respondent-Employer’s employ-
ees. In the end, however, an unopposed Damron won reelec-
tion and so, too, did Robinson. But, Morales and Escobedo
were successful in being elected grievance committeemen.
This sequence of events becomes less than straightforward,
however, when more than superficial attention is paid to testi-
mony about those events advanced by Florian and Phillips.
The first problem arises upon examination of their accounts
concerning how they went about seeking to run against the
incumbents. Asked during cross-examination if he had been
running on a slate, along with Phillips and Crylen, Florian
equivocated. Initially he answered, “I don’t know, I don’t
know what anybody else’s intentions were or who they were
going to run against. That’s all I know is I was running against
Mr. Damron.” That was not truly a responsive answer and the
question was repeated. Florian again appeared to attempt to
avoid a direct answer: “There is no slate for a Union position,
ticket or whatever you want to call it.” Yet, in a prehearing
affidavit, taken during investigative phase of this proceeding,
Florian had stated, “Crylin [sic], Phillips and Franks were all
planning to run with me in April of 1997.” (Emphasis added.)
Of course, there is no allegation of unlawful conduct by ei-
ther of Respondents against Phillips or Crylen. As he testified
concerning the subject of a slate or ticket, Florian appeared
concerned that the allegations concerning his suspension and
termination might be somehow diminished, at least somewhat,
if he had been linked too closely in 1997 with other employees
who had not become subsequent targets of purported unlawful
conduct for having participated in the unit election. As cross-
examination progressed, however, his answers began to con-
cede the very fact that he had earlier seemed to be trying to
evade acknowledging. That is, he appeared to be conceding
that, yes, he had been running in 1997 as part of a team. “Not a
ticket. It’s, I don’t know how to describe it to you but I know
they were going to run. People knew that we were running
together,” (emphasis added), he testified and, then, “I guess
you’d call it a slate. Then maybe that’s how I referred to it.”
Even after having been shown the above-quoted portion of
his affidavit, however, the record of his testimony discloses
continued vacillation by Florian concerning whether he had
been running in 1997 as part of a team. “No,” he retorted when
asked if he, Phillips, Crylen and Franks were running as a slate.
“I believe there was more people running for those positions,”
he then answered. Yet, when next asked if the other three were
running with him, Florian replied, “Yes,” only to then contra-
dict that acknowledgment by answering, “I, I don’t know what
their [the other three employees’] intentions were.” “Okay,” he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1152
responded when asked if a “Slate is an appropriate way to de-
scribe what the four of you planned to do.”
The fact is that, aside from the above-described equivocation
and seeming evasive testimony by Florian, there is evidence
that he had been attempting to run as part of a team or slate in
the April 1997 unit election. When called as a witness by the
General Counsel, Grievance Committeeman John Robinson
said as much. That is, he referred to Florian as having tried to
run in 1997 as part of a “team.” To be sure, Robinson was an
admitted statutory agent of Respondent-Union at all material
times. Even so, as pointed out in the preceding subsection,
agency is not necessarily the determining factor in the instant
case that it ordinarily can be in other cases. By the time that he
completed his testimony for the General Counsel and Charging
Parties, it seemed clear that Robinson was not terribly enam-
ored of Unit Chairman Damron and, conversely, tended to be
sympathetic toward Florian’s situation. In any event, given
sequestration, there is no basis for concluding that, when testi-
fying, Robinson would have appreciated that his “team” charac-
terization might conflict with some of Florian’s testimony.
That is, it seems to have been a truthful, spontaneous charac-
terization.
Beyond that, there is undisputed evidence that Florian had
actually been attempting to put together a slate or ticket to run
against Respondent-Union’s incumbent officers during early
1997. Escobedo testified that, during early March 1997, “Ches-
ter had heard that me and Eddie [Morales] were going to be
running and that he had been asking around and that the guys
wanted to vote for us and he wanted me, Eddie, Tom Philips
[sic] to run on his ticket, he was going to run for unit chairper-
son.” Escobedo further testified that he had declined that offer:
“I just wanted to win, see if I could win. I didn’t want to be on
anybody’s special ticket or anything like that.”
Now, like Robinson, Escobedo was an admitted statutory
agent of Respondent-Union at all material times. And unlike
Robinson, by the time he testified in this proceeding, it became
quite plain that Escobedo was antagonistic toward Florian. Yet,
as pointed out in the preceding subsection, a more than usual
amount of litigation has been occurring during the approxi-
mately year-and-a-half which preceded Escobedo’s appearance
as a witness in this matter. Those very proceedings appear to
have generated hardened attitudes by each party’s witnesses
toward the other party or parties, as well as toward counsel for
other parties. As a consequence, by the time witnesses testified
in the instant case their attitudes did not necessarily reflect what
those attitudes toward other people had been at earlier stages,
such as during 1997. In fact, Escobedo testified that, during
March of 1997, “I wanted Chester to run. I wanted him to win,
too.”
Talk, of course, is cheap. It is easy to express personal opin-
ions that cannot realistically be tested. Indeed, Florian gave
testimony which does tend to show that Escobedo and Morales
were not truly dissidents trying to unseat grievers—Forias and
Turner—whose incumbency might indicate that their reelec-
tions would naturally be supported by incumbent Unit Chair-
man Damron. “To my understanding at the time of the elec-
tions . . . Mr. Damron did not want Jesse nor did he want Glen
Thomas to get back into office,” claimed Florian, “And he en-
couraged Eddie Morales and Manny Escobedo to run.” But,
that assertion is not supported by any other evidence. Asked
where he had gotten that information, Florian ducked a direct
answer, responding only that “Manny had mentioned that he
wanted to run and that he was going to run against, he did not
like Tom Philips [sic], Wayne Kryland [sic] at the time. And
they [presumably Phillips and Crylen] were going to run
against them.” Of course, of itself, such a statement—showing
Escobedo’s disdain for Phillips and Crylen—hardly supports
Florian’s above-quoted assertion that Damron had influenced
Morales and Escobedo to run for election, much less shows that
Damron had opposed reelection of Forias and Thomas.
More importantly, while he sat at counsel table through most
of the hearing and was present during the final day when rebut-
tal witnesses were called, Florian never denied Escobedo’s
relatively specific testimony about being asked by Florian “to
run on [the latter’s] ticket.” Obviously, that uncontested testi-
mony shows that Florian had been attempting, at least, to form
a slate or ticket to run against Respondent-Union’s incumbent
officers in 1997, contrary to the above-described equivocations
and sometime denials by Florian of that fact.
Not only is there no evidence that Morales and Escobedo had
run in the 1997 election as some type of accommodation to
Damron, but Escobedo’s unrefuted account tends, at least, to
demonstrate that Florian had been favorably disposed toward
the candidacies of Morales and Escobedo. And as those two
employees were attempting to replace incumbents running for
grievance committeepersons’ positions, there is no basis for
concluding that Morales and Escobedo had been any less dissi-
dents in 1997 than Florian had been. That is not simply an
inference. Phillips—a witness quite clearly hostile toward
Damron and, conversely, quite sympathetic toward the charging
parties—testified that, in 1997, there had been “basically a
group of people that wanted to run to get out the old and bring
in the new people.” Among that “group of people” Phillips
included Morales and Escobedo.
In sum, a review of Florian’s testimony regarding the his de-
cision to run against Damron, and his efforts to implement that
decision, display internal contradictions, lack of support for
some of his assertions and refutations of others, and inconsis-
tencies between his accounts and those of witnesses both sym-
pathetic and unsympathetic toward Florian by the time of the
hearing in the instant case. Those deficiencies continued to mar
Florian’s testimony—and that of Phillips, as well—during ef-
forts to describe the declaration of ineligibility to run for union
office in 1997.
Florian testified during direct examination merely that after
the March 1997 nominating meeting, “I was informed that I did
not have enough meetings to qualify for that position” of unit
chairperson. Left unanswered were the subjects of who had
“informed” him and of how he had been “informed.” It is diffi-
cult to conclude other than that those omissions were deliber-
ate. For, Florian testified, “That particular day Mr. Damron
took nominations with the recording secretary” at the nomina-
tions meeting. Asked whether it was not true that there is a
committee which runs local union elections, Florian professed
uncertainty: “I’m not sure of that, no, sir.” Asked who had told
him that he was ineligible to run, Florian answered, “The only
PRECOAT METALS 1153
one that had told me was Ray” Pasnick,13 then the director of
Steelworkers subdistrict 1 and the immediate supervisor of
then-service and staff representative Craig F. Langele,14 who
then handled bargaining and grievance processing, starting at
step 3, for Respondent-Employer’s employees.
Asked if he had been informed of his ineligibility by some-
one other than Pasnick, Florian responded, “I don’t remember if
anybody else told us that we weren’t.” Later during cross-
examination, questioning returned to this subject. “I believe
so,” testified Florian, when asked if he had been told only by
Pasnick that he was ineligible to run for unit chairperson.
Asked, again, if anyone else had told him, Florian answered,
“Not to my knowledge, no.”
Had the record been left in this posture, it would show no
more than that Damron had been one of the two officials ac-
cepting nominations and, later, a Steelworkers official had told
Florian that he was not eligible to run. The intended implica-
tion of so terse a sequence of events seems to have been that
Damron had, at least inferentially, been involved in the declara-
tion of ineligibility, with at least one Steelworkers official play-
ing along. The record was not left in that posture, however.
Cross-examination of Florian was pursued by showing him
an excerpt from his deposition of April 9, 1999. That excerpt
states, “I wanted to run for local union president [sic] at our
union itself. And I was told that I was ineligible because of the
amount of meetings at that time. I came in to discuss that with
Mr. Pasnak [sic].” A natural reading of that answer seems to
show that, contrary to his above-described testimony in this
proceeding, Florian had already known about his ineligibility
when he approached Pasnick. Asked to explain that seeming
discrepancy, Florian simply professed a lack of recollection
about what he had said when his deposition had been taken:
“No, that I don’t remember, sir,” having said that during the
deposition. There is another aspect to that portion of Florian’s
testimony which will be taken up below.
At this point, however, discussion must be directed to testi-
mony by Phillips which contradicts, almost in its entirety,
Florian’s above-described testimony regarding the nomination
process and how Florian, Phillips, and Crylen came to be noti-
fied that each was ineligible to run for unit office. Damron
testified that he had no role in determining eligibility of nomi-
nees for unit office—that satisfaction of requirements for
nomination is determined by an independent committee. For
the most part, Phillips agreed. In the process, not only does the
record show that Phillips provided testimony which contradicts
that of Florian, described above, but also that Phillips provided
some testimony which was internally contradictory.
As to the contradiction of Florian’s testimony, during direct
examination Phillips testified that—shortly after the March
1997 nominating meeting—he, Florian and Crylen “all received
letters on the same day at the plant that we were not eligible.”
It hardly could be argued with the least persuasion that that
testimony by Phillips was somehow the product of momentary
mistake. “That’s correct,” he later responded when asked if an

13 Misspelled in the record variously as “Paznek,” “Pasnek,” “Pas-
nak,” and “Pasnik.”
14 Misspelled frequently in the record as “Langley.”
election committee had notified each of those three would-be
candidates of his ineligibility to run for unit office. “I know
that we did receive a letter from the union saying that we were
ineligible to run,” acknowledged Phillips at a still later point.
Obviously, Phillips was including Florian as one recipient of
the letters. Yet, Florian never even mentioned having received
such a letter.
Nor did Florian make mention of any election committee.
Nevertheless, Phillips conceded that one had been appointed,
although his testimony about it and its activities displayed in-
ternal contradiction. “They have like an election committee
that goes through and finds out if you’re eligible as far as meet-
ings attended,” testified Phillips during direct examination. He
added, “They check the records and we all received letters on
the same day at the plant that we were not eligible.” Certainly
it seems that Florian should have been aware of that committee.
Phillips testified, “Well, we got to, yeah” pick at least half of
that committee’s members: “Yeah, we just, we got to pick
someone we trusted to do the job.”
More specifically, Phillips testified that Damron, and pre-
sumably the other incumbent officers, had selected Donald
Ashesky, “[a]nd then we volunteered Mark Newscal and noth-
ing was said about that.” Presumably by “we” Phillips was
referring to the dissidents who were seeking to unseat the in-
cumbent officers. Certainly, he—or, for that matter, any other
witness—never advanced any testimony to the contrary. More-
over, there is no basis for concluding that Ashesky had some-
how been under the control of Damron. Phillips effectively
vouched for Ashesky’s reliability: “Dan Ashesky was trusted
by a lot of the guys in the plant. He was a nice guy. So there’s
no, nothing was said about” his selection for the committee.
Internal contradiction does emerge upon examination of cer-
tain testimony given by Phillips as cross-examination pro-
gressed. Initially, he seemed to be testifying that the same
Ashesky-Newscal committee had determined eligibility and, in
addition, had counted the ballots cast during the April 1998 unit
election. Thus, as quoted above, during direct examination
Phillips testified, “They have like an election committee that
goes through and finds out if you’re eligible,” and he also testi-
fied “like counters for, for counting votes and stuff,” during the
initial phase of cross-examination. There is no evidence that
two separate committees had existed: one to determine eligibil-
ity and another to count ballots. Yet, during a later phase of
cross-examination, Phillips seemed to become concerned that
charging parties’ position might somehow be diminished by
testimony that the same committee both determined eligibility
and counted ballots. Accordingly, his testimony took a mean-
dering course regarding the committee.
“That’s correct,” he agreed, the election committee had given
notice of ineligibility of Florian, Crylen and himself. Then,
however, Phillips claimed, “I don’t even know who was on the
election committee.” But, he agreed that he earlier had testified
how he had been involved in selecting the people who had
counted the votes: “Right. Those were people who counted
votes.” Well, then, he must have known “who was on the elec-
tion committee.” Yet, Phillips next testified, “No, I don’t think
they were the same people who go through your, to find out
your eligibility to run for Sundays and all that.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1154
Of course, Phillips had already identified Ashesky and
Newscal as the committee-members selected during March, as
quoted above. As cross-examination progressed, he was then
asked if the “tellers committee” was not what he had been call-
ing an election committee. His answer was not truly respon-
sive: “I, the tellers, I know that they, what, the one thing I do
know that they did was they counted the ballots.” Asked next if
those had not been the same people who had written the letter
telling him he was not eligible to run for office, Phillips again
avoided a direct response: “I’m not sure whose job it was to
check that out. I know that we did receive a letter from the
union saying that we were ineligible to run. I don’t know
whose job that falls under and who,” replied Phillips. It ap-
peared by this point that, in response to those questions, Phil-
lips was trying to work out mentally which answers might harm
the charging parties’ position and, conversely, which might
operate to the greater detriment of Respondent-Union, rather
than attempting to answer candidly to questions which he
seemed sufficiently perceptive to understand.
Significantly, not included among the plethora of documen-
tation offered in support to the complaint is a copy of the ineli-
gibility letters which Phillips admitted that he, Florian and Cry-
len had received. There was no contention that none of those
three letters was available for production. No explanation was
advanced for their nonproduction, though they surely would
have resolved the open question of who had sent them. Not
apparent from the record, as well, is any legitimate explanation
for Florian’s failure to have mentioned those letters when he
testified. Apparently, he felt that including only Damron and
Pasnick in his recitation of events concerning the 1997 unit
election better served his view that everybody in and connected
with Respondent-Union had been conspiring against him. Or it
may be that he perceived some purpose that might better serve
his suit filed in Federal District Court.
As it turns out Florian did, in fact, speak with Pasnick about
the eligibility issue. To be sure, I did cut off interrogation of
Crylen about the 1997 unit election. By that time, however,
Florian and Phillips had already advanced inconsistent descrip-
tions regarding their contact with Steelworkers. Nothing said
by Crylen would erase the extent of those inconsistencies.
During cross-examination Florian was asked if he had been
told about the eligibility problem by someone other than Pas-
nick. He answered, “I believe among ourselves [the dissi-
dents], when we were talking, we thought as far as the meetings
would be concerned that we knew that there was a certain
amount that had to be covered at that time,” although Florian
claimed that at Ball Metal, during the 1970s, “eligibility was
waived many a time, so I didn’t know what the current by-laws
were or if they could waive them or not.” Then, testified
Florian, “I had gone down and talked to Mr. Ray” Pasnick who
“showed me some by-laws that stated that I was not eligible by
the amount of meetings that I could run for.”
No question that Florian was claiming that, on his own initia-
tive, he had gone to see Pasnick after he (Florian) had been
nominated, but before being given any notification of ineligibil-
ity to run, for unit office. Asked if it was not true that he had
gone to see Pasnick about eligibility “because you had been
told by your local union that you were ineligible?” Florian an-
swered flatly, “No. I was told—we checked on it ourselves
because we were looking for, just in case this would come
about, that’s when we came up with our records,” the latter a
subject discussed below and in the immediately following sub-
section. However, the testimony by Phillips portrays a quite
different story, though one not free of its own internal contra-
diction.
Phillips agreed that he, Florian and Crylen had discussed,
among themselves, their eligibility in light of the number of
union meetings not attended by any one of them. In contrast to
Florian’s above-described testimony, however, Phillips testified
that that conversation had taken place “[w]hen we got our let-
ters” saying none of them were eligible for run for unit office.
For most of cross-examination Phillips testified about two
meetings with then-Staff Representative Langele. For example,
he testified initially, “when we got our letters, we discussed, we
discussed what the requirements were, as far as days that we
worked, according to the meetings. That’s when we find out,
when we went to Langele, we found out about the Sundays that
had, were days we held meetings and if they were counted
against us or how they worked.” No question Phillips was
testifying that at that stage that he, Florian and Crylen had gone
together to see Langele at Steelworkers’ facility at 92nd and
Harlem Avenue in Chicago. He was asked specifically about
having gone there and he agreed that all three of them had gone
to that location where they spoke with Langele.
According to Phillips, Langele’s remarks led the three of
them to the realization that absences from Sunday union meet-
ings would be excused—and those meetings excluded from
calculations of percentages of meetings attended—if one or
more of them had been scheduled to work, and did work, when
Sunday meetings were held, as quoted above. “He [Langele]
said that we’d have to find out about the information on the
scheduling, what Sundays we worked and what ones we didn’t.
Because the election committee didn’t know which ones we
worked. The election committee only knew what days the
meetings were held and which meetings we attended.” Appar-
ently, at that point, Phillips saw no problem in identifying the
election committee as the source of the ineligibility determina-
tion. Still, contrary to his own above-described testimony, at
that point he added, “I didn’t even know who was on the elec-
tion committee.”
Acting on the information obtained from Langele, testified
Phillips, “that’s when we went to do the, to look into the sched-
ules.” That was done by going to then-Production Manager
Focht, as discussed below in greater detail. After checking the
records he provided, Phillips testified that he, Florian and Cry-
len had returned to speak with Langele: “we talked to him
about the Sundays that we found in the scheduling coinciding
with the Sundays that we worked, with the Sundays that meet-
ings were held on.” No question that Phillips was testifying
that this had been a second meeting with Langele: “Yeah, its
another meeting that we had with Mr. Langele.”
During that “same meeting,” Phillips further testified, “We
went from Mr. Langele to Mr. Pasnak [sic].” This was the first
point—after two meetings with Langele—at which Phillips
placed Pasnick as having become involved in the eligibility
issue. “But I only saw Ray Pasnak [sic] and Craig Langele one
PRECOAT METALS 1155
time together with Chester and Wayne Crylen,” claimed Phil-
lips. As it turned out, even deducting Sundays when one or
more of the three would-be candidates had worked during the
preceding 2 years, none of them was able to satisfy the eligibil-
ity requirement of having attended one third of union meetings
during that period.
Had the testimony in this area by Phillips concluded at that
point, the sequence of events portrayed by him would have
been relatively straightforward, albeit not consistent with that
portrayed by Florian: receipt of ineligibility letter, meeting with
Langele at the Steelworkers’ Chicago facility, procurement of
records from Focht, second meeting with Langele and, then,
Pasnick. Yet, as cross-examination progressed further, the
record shows that Phillips began modifying, even changing,
that seemingly straightforward recitation.
First, Phillips made an addition. “When we found out we
were ineligible, I called up Saunders,” the president of Local
3911, who “referred me to Langele,” testified Phillips. Then, “I
called Langele as well and said, listen, we were found ineligi-
ble” (emphasis added), testified Phillips at that point. When he
told Langele that, “we were found ineligible,” Phillips claimed,
“they already knew because they were the ones who sent the
letters out.” This is the only point in the entire record where
authorship of the three ineligibility letters is attributed to Steel-
workers’ staff officials. In so testifying, Phillips contradicted
his own above-quoted testimony. Furthermore, there is no
evidence whatsoever that Steelworkers had played any role in
determining eligibility to run for unit office and, moreover,
there is no evidence whatsoever that could supply an inference
that either Langele or Pasnick would have known about ineligi-
bility letters being sent to would-be candidates for unit offices.
Second, as the emphasized word in the preceding paragraph
shows, the testimony by Phillips was that he had “called Lan-
gele.” To be sure, he could have both telephoned Langele and
then, accompanied by Florian and Crylen, gone to meet with
Langele at Steelworkers’ Chicago facility. Yet, any such infer-
ence tends to be dispelled by Phillips’s account of what had
been said during the now-asserted telephone conversation. “I
said what about the Sundays that we worked and the Sundays
that meetings were held on? You know, how does that work
into it?” testified Phillips. According to him, “They [sic] said,
well, now you’re going to have to find out what Sundays you
worked and what Sunday meetings did it [sic] fall on.” Now,
that is essentially what Phillips earlier testified had been said
during his above-described testimony about the purported first
meeting with Langele. It seems almost absurd, at least absent
some evidence to the contrary, to conclude that Phillips had
been told by Langele during a telephone conversation to check
Respondent-Employer’s Sunday records and, then, had gone to
Steelworkers’ facility to pose the same questioning to Langele
and to have Langele repeat the same answers as, by now, pur-
portedly provided already during a telephone conversation.
The fact is that Langele denied having participated in any
such meetings and, implicitly, conversations such as the record
reveals that Phillips alternatively described. Langele testified
that when he arrived at Steelworkers’ Chicago facility one day,
he discovered that Florian and “a couple individuals” were
meeting there with Pasnick. “I’d come in when they were al-
ready there,” testified Langele. Of course, a meeting with Pas-
nick—not with Langele—is what Florian had described, as
mentioned above. And Pasnick’s testimony corresponded with
that of Langele and Florian: “Craig wasn’t in the office. I think
he just came back from a meeting or something and came in,”
and, moreover, “[h]e probably walked by the door and I proba-
bly motioned for him to come in,” because, “[h]e’s the servic-
ing staff representative. It would have been, ordinarily, I think
these individuals would have probably talked to Craig. They
probably didn’t talk to Craig [that day] because I was in and he
wasn’t.”
To a degree Pasnick’s and Langele’s descriptions of that
meeting tended to correspond more to that of Florian than to
anything described by Phillips. As set forth above, Florian
made no mention of the ineligibility letter—admitted by Phil-
lips to have been received by him, Florian and Crylen—but
testified that he had met with Pasnick as a result of discussion
with Phillips and Crylen about possible eligibility problems.
Still, Pasnick’s account of his meeting with Florian and Phil-
lips, at least—Pasnick recalled having spoken with Florian and
“another guy” he believed “may have been” Phillips; when he
entered the meeting Langele recalled there had been “a couple
individuals meeting with Ray”—does not preclude the possibil-
ity that the meeting had occurred after Florian, Phillips, and
Crylen had already received their ineligibility notifications.
“They had come over to the office to talk about the Local
Union elections that were coming up,” testified Pasnick, “in
particular, the meeting attendance requirements under the
[Steelworkers] Constitution and By-laws.” According to Pas-
nick, Florian “was concerned that he would be ineligible be-
cause the current Constitution and By-laws call for a meeting
requirement of attending one-third of the Local Union meetings
in the 2-year period prior to the election, and he didn’t have the
meeting requirements.” Florian “wanted to know if there was a
procedure to waive the meeting requirements,” Pasnick testi-
fied, but he told Florian “the meeting requirements are set by
international convention in conjunction with approval from the
Labor Department. And there was nothing I could do to change
the meeting requirements for him.” To allow Florian to verify
that position, “[i]f he didn’t feel that I was giving him the
straight story,” testified Pasnick, “I referred him to a guy by the
name of Paul Aldridge, who was in the Pittsburgh office. And
Paul was the coordinator for all the Local Union elections on
the national basis, international basis.” Both Pasnick and Lan-
gele testified that, once the latter had entered Pasnick’s office,
Pasnick explained the situation being discussed. Langele testi-
fied, “I think I said we can’t” waive the meeting requirement:
“I said, you can’t do that,” or, “Well, we can’t do that.”
Florian, Phillips, and Crylen, as mentioned above, also went
to then-Production Manager Focht, to ascertain the number of
Sundays one or more of them had been scheduled to work, and
had worked, when union meetings had been occurring. That
may have occurred before the meeting with Steelworkers’ staff
officials or afterward. Phillips claimed that it had occurred
between the two meetings he asserted having with Langele.
Regardless, Florian acknowledged that Focht had been eager
to have someone replace Damron as unit chairman. For,
Florian testified that Focht had said he “was happy that some-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1156
body else was running” for unit chairman, because “it would be
good to have somebody in there that the company and the Un-
ion could, I guess, that communicate, deal with, whatever is the
word you want to use,” and, further, that Focht had said that
“sometime when we had asked for the [attendance] records.”
After being shown a portion of a prehearing affidavit, Florian
acknowledged that Focht had said also that he (Focht) could not
deal with the current unit chairman or could not “deal with the
current people that were in there or communicate with them,”
agreeing further that Focht had said that he was glad Florian
was running for unit chairman.
As mentioned above, the subject of what records Focht gave
to the three would-be candidates will be discussed further in the
immediately following subsection. At this point, discussion is
confined to certain conflicting testimony appearing the record
in connection with the request for that information, when atten-
tion is paid to the accounts of Focht, Florian, and Phillips.
During direct examination, according to Focht, he had been
approached by Florian and Phillips during March of 1997. At
that stage of examination, Focht testified that Florian had said,
“they needed some information. In order for them to be able to
run they had to have so many Union meetings in. If they were
scheduled to work on a Sunday they were excused from the
Union meetings and they might have enough time to run.”
Focht’s testimony at that stage continued, “And then they
weren’t sure if they had enough time in and they asked if I
could get out, pull some records so they could look at them to
see how many Sunday’s [sic] they had worked.” That testi-
mony shows that Focht had been fully informed at the time of
the information request of the specific reasons why it was being
sought. In fact, Focht repeated as much during the initial phase
of cross-examination: “they needed to know how many Sun-
days they had worked so they would be excused from their
Union meetings in order to run for office.”
As cross-examination returned to the subject, however, Focht
seemed to become concerned, perhaps based on intervening
examination, that saying that he had known too much, at the
time of the request, might somehow prejudice Florian’s, or
possibly his own, position. Asked then if Florian had said why
he needed to see the records, Focht answered, “No, he just told
me he was running for office.” “Yes,” he replied when asked if
Florian had said only that he needed records, “[b]ecause they
were running for office.” “No, he did not,” Focht answered,
when asked if Florian had said that he had been nominated for
office. As a consequence, Focht contradicted his earlier above-
quoted accounts of having been told about potential Sunday
work-union meeting conflicts providing an excuse that might
allow one or more of the three would-be candidates to run for
unit office. The matter did not conclude at that point, however.
Asked if it had not been his previous testimony that Florian
had said the records were needed to ascertain if he (Florian) had
worked on Sundays so that he could qualify or be eligible to
run for union office, Focht switched back by answering, “Yes,
it was” his previous testimony. Nonetheless, when then asked
if it followed that Florian had said more than simply that he
was running for office and needed his records, Focht responded
in the negative, but then modified that denial: “No, he told me
he was going to run for office and he needed to investigate
these records to see if he had enough time to run.” Well, then,
he had said more than simply that he was running for office and
needed his records. Still, the modification contradicted Focht’s
earlier assertion that Florian had explained the significance of
overlapping work and union meetings on certain Sundays. That
may have been covered by Focht’s final answer during this
sequence of questioning. “Yes, he did,” answered Focht, when
asked if Florian had explained why he needed the records to
qualify for office. If so, it corresponded to some of his above-
quoted testimony, while contradicting other answers that Focht
had given in this area.
Turning to another aspect of Focht’s testimony regarding the
information request, he was confronted with a prehearing affi-
davit in which he had stated only that he had given “Florian his
records.” Focht conceded that there is no mention in the affi-
davit of Phillips having been present and seeking his own re-
cords nor, for that matter, of Crylen. Focht admitted that he
had not mentioned Phillips to the Regional Office’s investiga-
tor: “No, I didn’t.” As pointed out above, Phillips is not an
alleged discriminatee. To some extent, therefore, omitting
mention of his involvement in the identical statutorily-protected
activity as Florian—making an effort to run for union office—
advanced Florian’s position, at least during the investigative
phase, by making it appear that Florian’s activity had been if
not unique, at least singular. When Focht was asked as much,
he denied that, in effect, he had tried to tailor his affidavit-
account in an effort to advance Florian’s position by deliber-
ately omitting mention of Phillips’s involvement in the same
information request: “No, my error in concentration was I had
no notes and I was trying to remember everything in my head.”
That is a difficult explanation to swallow in the circum-
stances. Both Florian and Phillips had together asked for atten-
dance records. There is no basis in the record for concluding
other than that separate sets of attendance records are main-
tained by Respondent-Employer for each of its employees.
Focht gave both employees their attendance records at the same
time. Against that background, it is difficult to believe that, in
the course of describing the transaction to the Region’s investi-
gator, Focht would have remembered having given those re-
cords to Florian but not remembered having given a like set of
records to Phillips and, beyond that, remembered that the one
employee had requested those records, but not remembered the
other having done so.
In addition, there were discrepancies when the record is re-
viewed of the testimony given by Phillips in connection with
the information request. According to the account which he
advanced during direct examination, “We also went to, I be-
lieve Mary Abbott, also, because she looked into at first about
getting us access to the timecards.” Furthermore, the account
by Phillips appears to portray Abbott as having been involved
with Focht in procuring the requested records: “they found
another way’; “They had all the schedules.” (Emphasis added.)
Abbott is personnel administrator or personnel benefits coordi-
nator in Respondent-Employer’s human resources department.
While seemingly employed by Respondent-Employer during
the hearing, she was not called as a witness, though there is
neither evidence nor representation that she was not available to
testify. Thus, the foregoing account by Phillips of her in-
PRECOAT METALS 1157
volvement, in the information production, is not disputed by
Abbott.
Even so, it is difficult to simply accept the testimony by Phil-
lips that Abbott had been involved in production of the infor-
mation sought by the would-be candidates for unit office. Nei-
ther Florian nor Focht mentioned Abbott as having been in-
volved. Omission of her involvement by Focht is particularly
significant. He testified that he “[h]ad someone” copy the re-
cords and that the copies were given to Florian, Phillips, and
Crylen. Thus, Focht did supply at least a cursory description of
how he had gone about providing the requested information.
But, he made no mention of Abbott.
As mentioned above, exclusion of Sundays worked by
Florian, Phillips, and Crylen still did not qualify any one of
them for eligibility. So, Phillips proceeded along a different
path. He testified that he wrote out “a brief paragraph” petition
or plea “that simply stated that we wanted to ask that anyone
who was nominated, at the nominations hearing [sic], be al-
lowed to run in the next election and the determining factor on
who the officers were going to be in that plant would be de-
cided by the people, by the union members of the plant.” He
further testified that he had taken “this plea around and I got
people to sign it,” obtaining “over half the company, half of our
Union or our Union workers in the Precoat facility signed it.”
No question that Phillips had circulated such a petition or plea.
Escobedo acknowledged having been offered the opportunity
by Phillips to sign it. Damron acknowledged having been
aware of it. Still, no employee other than Phillips testified to
having actually signed it. No signed petition or plea was pro-
duced during the hearing, though there is neither evidence nor
representation that it could not be obtained by counsel for the
General Counsel or by counsel for Charging Parties. So, while
there is no question that Phillips had circulated his petition or
plea, there is no evidence that as many people as he claimed
had signed it. In fact, independent of the testimony by Phillips,
there is no evidence that any employee signed it other than him.
Even Florian did not claim to have signed such a petition or
plea for Phillips.
Phillips testified that he, Florian, and Crylen had taken the
petition or plea to Steelworkers’ Chicago facility where they
showed it to Local 3911 President Saunders and Staff Repre-
sentative Langele. According to Phillips, Langele said “it’s
impressive,” and promptly took it to Pasnick. During direct
examination Phillips testified that Pasnick “just looked at and
threw it on the table and said no. He said he’s not going to
honor that.” During cross-examination, Phillips acknowledged
that Pasnick had mentioned Steelworkers’ international consti-
tution and Local 3911 by-laws, but seemed to be avoiding an
answer that might leave an impression that Pasnick disregarded
the petition or plea based upon those documents. “Right, he
wasn’t going to budge,” testified Phillips when first asked
about the constitution and by-laws. Then, Phillips added to his
account given during direct examination, by testifying that
Pasnick “said there were, there were ways that he could go
through paperwork and all this stuff, he said, but he’s not going
to do it for this small of—”at which point he was cut off. Re-
suming that account, however, Phillips testified that Pasnick
“said, if you, if they really had to pursue it, if this was some
big, you know, union and there was some extenuating circum-
stances, he could, he’d get into it, but there’s not, he says, this
is going to, this is the way it’s going to stand, you’re not going
to be eligible.”
Neither Pasnick nor Langele denied with particularity that
the above conversations had occurred, nor did either deny with
specificity the remarks attributed to Pasnick by Phillips—
remarks which surely tend, at least, to show that Pasnick had
been refusing to exercise some sort of discretion which he had
possessed. On the other hand, as set forth above, Phillips
claimed that Florian had been present when the petition first
had been shown to Saunders and Langele and, then, when it had
been given to Pasnick. Florian never corroborated Phillips;
never testified that he (Florian) had been present during a meet-
ing when Phillips gave the petition or plea to Steelworkers staff
officials. Florian did describe a conversation with Pasnick, as
set forth above. But, Florian did not corroborate any of the
remarks which Phillips attributed to Pasnick.
The clear intended, at least, implication of adducing that tes-
timony by Phillips had been to support an argument that Steel-
workers had dealt unfairly with Florian—and with Phillips and
Crylen, as well—by depriving him of an opportunity to run for
election when, so the argument progresses, Pasnick had discre-
tion to allow all three of those employees to run for unit office.
The fact is, however, that the meeting-attendance requirement
is not simply some informal unit rule nor, even, a local union
requirement. It is undisputed that that requirement is one that
was formulated at the international level and is embodied in the
international constitution. True, there are exceptions to the
meeting-requirement. However, there is no evidence that any
one of those exceptions were satisfied by Florian, Phillips, or
Crylen during March and April of 1997. Aside from those
exceptions, there is no evidence whatsoever that any Steel-
workers official, at any level, had the least discretion to make
ad hoc exceptions to the requirement. It does not take a great
deal of imagination to foresee the potential legal consequences
should the Department of Labor discover that staff representa-
tives were making exceptions, on the spur of the moment, to
promulgated and published election eligibility requirements of
Steelworkers and its subordinate locals.
To be sure, Respondent-Union was a statutory labor organi-
zation. Even so, it was not truly a local union. It was but one
unit in a local union which consisted, as of March 1997, of a
number of other like units, each with a separate suffix number.
Accordingly, not only were Florian, Phillips, and Crylen seek-
ing an exception to international eligibility requirements, but in
reality they were seeking one that would apply only to a single
segment—unit—of one local union. In the totality of these
overall circumstances, it can hardly be argued with any persua-
sion that unwillingness to allow three would-be candidates—or,
even, a majority of the unit in which they worked—to have
such an exception somehow evidences any hostility whatsoever
toward those three individuals arising from their effort to run
for unit office.
Yet, that seems to have been precisely what Phillips ap-
peared to be contending at one point during direct examination
of him. He testified about “the loopholes that they found that
we [he and Florian] still felt that it was unjust the way we were
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1158
turned down for being able to run” during early 1997. Of
course, those supposed “loopholes” were part of the above-
mentioned international constitution requirements for eligibility
to run for union office. Apparently having realized after direct
examination that he might have taken characterization a step
too far, Phillips professed during cross-examination that he did
not recall having earlier used the term “loopholes.” “I don’t
recall saying that,” he twice claimed, thought quite obviously
he clearly had done so.
In fact, as a general proposition Phillips displayed somewhat
of a cavalier attitude toward rules which disadvantaged him,
personally. He freely admitted that he disliked Damron. Why?
Well, Phillips conceded, while he and Damron had gotten along
before sometime during 1996, before his effort to run for unit
office during 1997, during 1996 “we had a falling out due to the
fact that when we came off of a four-shift operation, they
wanted to put me, like they did it like almost immediately, they
put me on second shift.” The problem with that was that Phil-
lips then had 5 weeks left to complete night school courses that
conflicted with second-shift work. So, he testified, “they said,
you’re going to have to drop your classes and work on the sec-
ond shift.”
Philips testified that his hard feelings toward Damron had
followed from that incident. “About his wording of” the collec-
tive-bargaining contract, asserted Phillips. It is understandable
that Phillips would have become upset at having to forego
completion of his classes. Nevertheless, he gave no testimony
showing that Damron had somehow improperly interpreted that
contract’s provisions. To the contrary, Phillips admitted that
his assignment to second shift “was based upon seniority and
training, too.” Apparently, he felt that Damron should have
simply ignored contractual provisions and rammed through
some sort of exception to allow Phillips to complete his
courses, regardless of any effect that might have on other unit
employees.
As pointed out near the beginning of this subsection, the ba-
sic events surrounding the 1997 unit election are essentially
undisputed: there was an election among unit employees; while
nominated, Florian, Phillips, and Crylen were not eligible to
run under objective standards embodied in international consti-
tution; it was not possible to waive the eligibility requirement
which barred them from standing for election; they were unable
to run. Ordinarily, those events would represent no more than
background ones. Testimony concerning them would be brief
and largely, if not completely, collateral to subjects brought
into issue by complaints’ allegations.
As illustrated by the number of references above to direct
examination, however, those events were described in greater
detail in the instant case, to buttress the complaint’s allegations
against Respondents. In the process, they were made essential
elements in support of those allegations and, in turn, bred cross-
examination about them. Frequently during that cross-
examination, and sometimes even during direct examination,
the record shows that the testimony given by Florian and Phil-
lips was internally contradictory, inconsistent with each other’s
accounts, inconsistent with objective considerations and unsup-
ported in other areas. Having opened these areas to more than
prefatory ones, there can be no complaining that events in con-
nection with the 1997 unit election should be regarded as col-
lateral to the issues posed by the complaint.
C. The Asserted Animus by Damron Toward Florian
As will be explored more fully in succeeding subsections, all
of the alleged violations of Sections 8(a)(3) and 8(b)(2) of the
Act are rooted in Damron’s alleged hostility toward Florian.
That is, Florian was suspended and discharged. Another em-
ployee had to be suspended, when he engaged in the same mis-
conduct as Florian, to protect the purported unlawful motive for
Florian’s suspension and, later, termination. A business man-
ager was eventually separated from employment for having
given an affidavit to the Regional Office in support of Florian’s
unfair labor practice charge. Yet another employee was fa-
vorably disposed toward Florian and, as a consequence, no
grievance was filed on that employee’s behalf.
As to Florian, it is argued that Damron displayed animus to-
ward him because Florian had chosen to attempt to run for of-
fice against Damron during early 1997, as discussed in the im-
mediately preceding subsection. That is not all. Florian testi-
fied that, after that 1997 election, he had formulated an inten-
tion to run against Damron for unit chairperson in 2000. And,
testified Florian, he had expressed that intention to others—
employees, unit officials, management officials. Again, this
area was explored in some detail during direct examination of
Florian and Phillips. In turn, that bred cross-examination.
Viewed in their totality, as was true of their accounts covered in
the preceding subsection, the record of those two employees’
testimony in connection with the 2000 election display some-
times internal contradiction, occasional inconsistency between
accounts, other times inconsistency with other evidence, and
some lack of support from evidence which should have sup-
ported their accounts about the 2000 election and Florian’s
intention to run in it.
What does seem plain is that Florian had made some state-
ments about intending to run for unit chairperson in the 2000
unit election. But, it is doubtful that those statements had been
so frequent and ongoing as Florian attempted to picture them.
During direct examination he testified that he had spoken about
running in 2000 to “a variety of people,” including Morales and
Escobedo. Asked during cross-examination to estimate how
many such conversations occurred, Florian testified, “Could be
50, could be 60. I, you know, every day conversation with
somebody in the plant.” To an extent his assertions tended to
be corroborated by Phillips: “Chester, himself, did tell me that
he was going to run again in the next election.” Yet, other than
Morales and Escobedo, neither Phillips nor Florian identified
any other employee with whom Florian had spoken about run-
ning in 2000. And no other employee-witness—both those
called in support of and in opposition to the complaint’s allega-
tions—testified to having heard Florian speak about intending
to run in 2000.
To the contrary, John Robinson—as discussed in the imme-
diately preceding subsection, one union official who seemed
sympathetic toward Florian and his situation—was asked spe-
cifically by counsel for Charging Parties if he (Robinson) had
“any idea if Chester Florian intended on running for office in
the” 2000 election. “I don’t know,” answered Robinson. Simi-
PRECOAT METALS 1159
larly, when alleged discriminatee White was asked if he had
known that Florian was going to run in 2000, White answered,
“No, I did not know if he was,” although he had heard Florian
say that, “He [Florian] was interested in running, yes.”
As to Morales and Escobedo, Florian testified that at “a cou-
ple of the [union] meetings,” they had “said, oh, Chester, ap-
parently you’re going to be running for office again. And I told
then, yes, I am.” Florian never explained the contexts in which
either of those exchanges had occurred. On the other hand,
neither Morales nor Escobedo denied with any specificity hav-
ing made those remarks to Florian and having heard his af-
firmative responses. Conversely, Florian was never called as a
rebuttal witness and, thus, did not deny having participated in a
November 1997 exchange described by Escobedo.
Frustrated that day by some aspect of his grievance commit-
teeman’s duties, as he was working with Florian, Escobedo
expressed that frustration. “I don’t know why you guys fought
so hard to get these—to run for these jobs, it’s nothing but a
pain in the ass,” Escobedo testified that he had said to Florian,
“you get all these grievances and you’ve got to keep coming in
early and changing your schedules around and I said I just don’t
understand it, you know what the big deal is about.” According
to Escobedo, Florian had replied, “it’s the fringe benefits,” and
when Escobedo had inquired what that meant, Florian had said,
“How do you think Damron got his boat? You turn in bogus
receipts and you get the money for it,” or, alternatively, “how
do you think Rich got that boat? He turns in bogus receipts and
gets paid for it.”15
Based on the above-described testimony, the most that can
be said is that, at least on some occasions after April 1997,
Florian had expressed an interest, accepting White’s testimony,
or an intention, accepting that of Florian and Phillips, about
running for unit chairperson in 2000. But, there is no support
for Florian’s assertions that he had done so with such frequency
and so ongoingly—” Could be 50, could be 60: times—
between April 1997 and August 1998, as he claimed. Two
other points are worth reviewing in connection with whatever
expressions of interest or intention Florian did express.
First, as described further below, Focht testified that, follow-
ing the 1997 unit election, there had been an ongoing drumbeat
of requests and demands by Damron for Florian’s termination.
The point of eliciting that testimony, obviously, was to show
Damron’s hostility toward Florian and desire to have Florian
fired, both for having run for unit chairperson in 1997, and for
possibly running for that position in 2000. As discussed below,
Focht described a specific incident, at a labor-management
meeting during December 1997, when Damron had sought to
have Florian discharged for demanding money from truckdrivers

15 Lest there be doubt, there is no evidence whatsoever that Damron
had been turning in “bogus receipts,” nor did Florian provide any basis
for, it is uncontested, having made such an accusation against Damron
during 1997. In fact, there is not even evidence that Damron owns a
boat, though that subject was brought up in connection with an accusa-
tion made about a relationship between Damron and one of Respon-
dent-Employer’s officials. Seemingly, if nothing else, public registra-
tion records could have been produced to show such ownership, had it
existed. Before an objection could be ruled on, Damron denied that he
owned a boat.
employed by firms other than Respondent-Employer. Yet, there
simply is no evidence that from April through December of
1997 Florian had engaged in any conduct which Damron might
have perceived as posing a threat to his position by 2000.
Florian had not been eligible to run for office in 1997 be-
cause he had not attended the requisite number of union meet-
ings during the preceding 2 years. So, presumably, he—and
Phillips and Crylen, as well—would have tried to repair that
deficiency, to be certain of being able to run for unit office in
2000. Indeed, both Florian and Phillips claimed that that is
exactly what they had done. “Started to attend my meetings
when I could,” answered Florian, when asked what he had done
to prepare himself to run in 2000. Phillips testified, “Chester
and I had been attending our meetings together.” Those asser-
tions encountered one problem: Local 3911 has a sign-in sheet
for each meeting and those sheets must be signed by employees
attending those meetings.
The above-described testimony by Florian and Phillips could
have been corroborated by production, pursuant to subpoena, if
need be, of the sign-in sheets for all the meetings which each
claimed, at least to those points in their testimonies, to have
attended. The sign-in sheets were not produced to support their
assertions, though no reason was given for the failure to do so.
In fact, as cross-examination progressed, it became apparent
that neither one had attended very many union meetings after
April of 1997.
“I don’t think I have this year [1999] yet, no,” attended any
union meetings, admitted Phillips. Asked how many he had
attended during 1998, Phillips responded, “I think four.” Asked
next if union records would be incorrect in showing that he had
attended only three meetings during 1998, Phillips answered,
“No, I guess maybe it’s right,” adding, “because I mean. I said
four, three.” Hardly the record of someone attempting to cure a
meeting-deficiency which had caused him to be ineligible to
run for office during April 1997.
More significantly, when Florian was asked if union records
were in error in showing that he had not attended any union
meetings during 1997, he first answered, “I couldn’t tell you,
sir. I don’t know when I started to go,” even though, as set
forth above, Florian testified that he had started attending union
meetings after being declared ineligible to run for office in
1997. Asked if was not true that he had not attended any union
meetings until March of 1998, Florian responded, “Possibly, I
couldn’t tell you, sir.” Asked if union records were in error in
showing that he had attended a total of only four union meet-
ings since January 1997, Florian replied, “I couldn’t tell you,
sir.” Now, given the fact that Florian had been barred from
running in 1997 because of his failure to have attended enough
union meetings, it seems odd that he would not have begun
attending union meetings, so that he would be eligible to run in
2000, and even more odd that he would have no knowledge
about the number of union meetings which he had attended
after March of 1997. Beyond that, seemingly union records—
sign-in sheets showing who had attended union meetings—
were available to the General Counsel through subpoena.
However, as pointed out in the preceding paragraph, not pro-
duced were sign-in sheets, showing attendance at a greater
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1160
number of union meetings by Florian and Phillips, than men-
tioned during examination.
Had Florian actually started attending union meetings during
1997, after having been declared ineligible, there might have
been some objective basis for Damron to seek, as early as a
labor-management meeting in December of 1997, the termina-
tion of Florian, as discussed below. The apparently uncontra-
dicted contrary fact, that Florian had not attended any union
meetings during 1997, removes at least one objective basis for
testimony that Damron had been seeking Florian’s termination
during 1997: regardless of any expressions of interest and in-
tention, the fact is that by the end of 1997 Florian had made no
greater effort to render himself eligible for the 2000 elections,
than he had to render himself eligible to run in 1997. From
Damron’s perspective, any expressions of interest or intention
to run in 2000 by Florian were, by the end of 1997, as devoid of
reality as had been Florian’s situation during March and April
of 1997.
Not perhaps surprisingly, Florian and Phillips both advanced,
seemingly as ad hoc responses to unanticipated questioning,
explanations for not having attended any union meetings dur-
ing, at least, 1997. Phillips claimed that “a lot of times they
posted like at the last minutes, like the last possible time in the
day they would post, you know, okay, there’s a meeting this
Sunday. Or sometimes it wouldn’t be posted at all.” Florian
took that assertion a step further: “At the local part, we did not
have any meetings. Mr. Damron did not hold any meetings, for
whatever reason.” Obviously, that testimony portrayed Dam-
ron as the villain in Florian’s lack of attendance at union meet-
ings during 1997. “Yes,” Florian agreed, Local 3911 did hold a
meeting on the first Sunday of each month. Well, then, Phillips
should have known that, regardless of whether or not a notice
was posted announcing those meetings on the first Sunday of
every month. In an apparent effort to cover his own flank,
having testified that Damron had not been conducting unit
meetings, Florian claimed, “After our local [sic] itself was not
holding any meeting, I was informed that I could start attend-
ing the monthly meetings, once a month on Sunday, and that I
could be eligible for this. This would give me my eligibility to
run.” (Emphasis added.)
Now, at the outset, no one seems to dispute that it had been
those very monthly Local 3911 meetings that members were
supposed to be attending to be eligible to run for unit office, not
unit meetings convened by Damron or by any other unit offi-
cials. That is, there seems no dispute that eligibility to run for
local or unit office is based on attendance at local union—not
bargaining unit—meetings. That only makes sense, given the
multiple bargaining units which composed Local 3911, as de-
scribed in subsection A above, and the fact the elections every
3 years are simultaneously conducted for unit and Local 3911
offices. Obviously, were the meetings-eligibility requirement
to be based upon unit meetings, as opposed to Local 3911
monthly meetings, then candidacies for both unit and local
offices would be hostage to the whims of unit chairmen—to
whether they decided to conduct monthly meetings. Against
that background, there is a clear air of unreality to Florian’s
claim that he had been “informed that I could start attending the
monthly meetings” to achieve “eligibility to run” for unit chair-
person in 2000. That was not an alternative course to attending
unit meetings; it was the prescribed manner to satisfy the meet-
ing requirement.
In sum, even had Florian been expressing ongoing interest
in, or intention to, run for unit chairperson in 2000, throughout
1997 he took no action which would, as an objective matter,
render him any more ineligible to run for that office in 2000,
than he had been in 1997. As discussed above, it is a matter of
considerable doubt that Florian had been expressing so many
times intention to run in 2000, as he testified had been the fact.
Still, it seems undisputed that he had occasionally expressed
such an intention or, at least, interest in running for unit chair-
person in 2000. Such expressions, however, do not seem to be
as significant as the General Counsel would have them con-
strued.
Second, called as a witness for the General Counsel, Dan
Mahoney—material manager for Respondent-Employer at Chi-
cago from March 1997 until October 1998; production manager
thereafter at that location—was asked during direct examina-
tion about having heard that Florian intended to run in 2000.
“You know, you hear a lot of stuff. I mean, I’m sure I heard it,
yeah.” Now, Mahoney was one of those officials, mentioned in
subsection A above, whose actual sympathies did not seem to
align necessarily with the party—Respondent-Employer—
whose agent he was. To the contrary, he appeared sympathetic
toward Florian because the latter had been suspended and fired,
unfairly in Mahoney’s view. So, his above-quoted ambiguous
answer should not be viewed as suspicious because he was a
management official attempting to avoid an answer that might
harm Respondent-Employer. Rather, it appeared that so insig-
nificant had been any expressions of interest or intention by
Florian, to run for office in 2000, that Mahoney could not truly
recall any of them. And Mahoney was not alone in failing to
attribute any significance to any such expressions of interest or
intention by Florian.
Mahoney’s “you hear a lot of stuff” answer tended to draw
support from testimony given by alleged discriminatee Jim
White, the employee supposedly suspended and discharged to
cover-up an unlawful motivation for Florian’s termination.
Obviously, White’s interest was aligned closely with that of
Florian. Yet, when asked during redirect examination about
knowing that Florian intended to run in 2000, White answered,
“It was two years away. There’s always discussion about some
one running.” (Emphasis added.) In other words, Mahoney’s
answer, in the context presented here, seems more accurate than
evasive: at Respondent-Employer’s Chicago facility, “you hear
a lot of stuff,” including ongoing “discussion about someone
running.” Any such expressions by Florian had not been some
sort of unique expressions, which might naturally lead Damron
to become fearful of opposition, but instead had been simply
examples of ongoing remarks by one or another employee at
the Chicago facility.
At this point, three principles should be brought into focus.
First, the extent of an employee’s statutorily-protected activity
is one factor which must be considered in weighing claims of
discrimination and of attempts to cause it. A “minimal amount
of union activity . . . detracts from [a] conclusion that this was
the reason for” alleged discriminatory action. NLRB v. Brook-
PRECOAT METALS 1161
shire Grocery Co., 837 F.2d 1336, 1340–1341 (5th Cir. 1988).
See also, Ronin Shipbuilding, Inc., 330 NLRB 464 (2000); and
Leather Agent, Inc., 330 NLRB 646, 647 (2000). Of course,
Florian had attempted to run for unit chairperson during early
1997. Yet, he had been declared ineligible for having failed to
attend a minimum number of local union meetings during the 2
years preceding March 1997 nominations. Despite subsequent
professions of interest in running or of intention to run in 2000,
Florian attended no local union meetings during the remainder
of 1997 and only a few thereafter. Viewed from Damron’s
perspective during 1997, at least, Florian’s expressions repre-
sented nothing unique, given that “[t]here’s always discussion
about some one running,” and, accordingly, could be regarded
as nothing more than all sizzle but no steak, given that Florian
had not started attending union meetings following the April
1997 union elections.
Second, there is no objective evidence showing that Florian
had posed, or would pose, any sort of risk to Damron’s incum-
bency. Nothing shows that Florian enjoyed any significant
support among Respondent-Union’s members. Consequently,
there is no evidence showing that Florian’s candidacy, either in
1997 nor potentially in 2000, “posed any sort of threat . . . to
the continued officer status of” Damron, assuming that Damron
truly intended in 1998 to stand for reelection in 2000, “such
that it might be said that [Damron] would likely be motivated to
[attempt to] eliminate” Florian from Respondent-Employer’s
payroll and, concomitantly, from the bargaining unit there.
Douglas Aircraft Co., 307 NLRB 536, 545 (1992), affd. 65
F.3d 175 (9th Cir. 1995). No doubt, Florian truly believes that
he posed such a threat to Damron’s continuation as unit chair-
person. However, “no weight should be placed on the subjec-
tive reactions of employees” (Citation omitted.) Gem Ure-
thane Corp., 284 NLRB 1349, 1351 (1987). See generally,
Aramburu v. Boeing Co., 112 F.3d 1398, 1408 fn. 7 (10th Cir.
1997).
True, as discussed in subsection B above, Phillips testified
that “over half” the bargaining unit had signed his petition or
plea, to allow all nominated employees to run for office in
1997, regardless of constitutional eligibility requirements. Yet,
there is no objective or other evidence which supports that tes-
timony about the petition or plea having been signed by so
many employees. Beyond that, there is no evidence that
Florian had been involved with the petition or plea circulated
by Phillips. At least, Florian never testified to having circu-
lated it or advocated that coworkers sign it. Phillips acknowl-
edged that no employees’ names were on it. So, it cannot be
said that Florian’s name was on the petition or plea. If any-
thing, the petition or plea, and its circulation, tend more to
show that it was intended for the benefit of Phillips. Thus,
signing it did not somehow evidence any sort of support for
Florian to oust Damron as unit chairman.
Third, against the background of the preceding two consid-
erations, timing is a factor which must be weighed, for “the
proximity between union activity and the employer’s action by
itself is substantial circumstantial evidence.” (Citation omit-
ted.) Matson Terminals, Inc. v. NLRB, 114 F.3d 300, 303 (D.C.
Cir. 1997). Florian was not suspended until August 4, 1998, 19
months after he had attempted to run for unit chairperson in
March 1997. And his suspension, and following discharge,
occurred approximately 20 months before another unit election
would occur. Those “considerable timelag[s],” Terraillon
Corp., 280 NLRB 366, 367 (1986), make it “far from obvious”
that the suspension and ensuing discharge were likely “a direct
response to,” Lutheran Home, 264 NLRB 525, 527 (1982),
Florian’s 1987 intraunion activity and possible 2000 such activ-
ity.
Of course, “passage of time . . . does not preclude” a conclu-
sion of discriminatory conduct, necessarily. Treanor Moving &
Storage Co., 311 NLRB 371 (1993). “[T]ime lapse does not
overcome . . . other evidence of [discriminatory] motive,”
Flannery Motors, 321 NLRB 931 (1996), nor, concomitantly,
of attempts by union officials to eliminate past and potential
rivals for union office. Nevertheless, passage of time since the
1997 election, and until the 2000 election could be conducted,
cannot simply be ignored. And examination of the testimony
about Damron’s asserted expressions of hostility toward Florian
is not even minimally reliable. Accordingly, it fails to supply
the “other evidence” referred to by the Board in the above quo-
tation.
As mentioned above, Focht claimed that Damron had voiced
frequent and ongoing demands and requests for Florian’s dis-
charge. If true, of course, that would supply evidence of “at-
tempt to cause” under Section 8(b)(2) of the Act. Yet, when
Focht’s more specific testimony about those purported demands
and requests is scrutinized, and compared to other testimony,
little room is left for placing any reliance upon Focht’s claims.
In general, Damron denied ever having told Focht that
Florian should be fired and, further, denied having told Focht to
fire Florian or having said that Florian should not be working
for Respondent-Employer. Of course, that would be expected
even if Damron had made such statements. It is hardly likely
that he would admit them. Yet, Production Manager, and for-
mer material handling foreman, Mahoney gave testimony
which tends, at least, to corroborate Damron’s denials, rather
than tending to corroborate testimony about purported ongoing
demands and requests for Florian’s termination. With respect
to Mahoney, it should not be overlooked that he was called as a
witness by the General Counsel.
Mahoney testified that, over the course of 6 years prior to
1998—and, thus, starting well before Florian had attempted to
run for unit chairperson during 1997—he and Damron had
engaged in “no more than five” conversations about Florian.
Mahoney further testified that, during each of those conversa-
tions, Damron had said, “just that he didn’t care for the guy.”
According to Mahoney, “it was just a mutual thing. I don’t
think Chester cared for [Damron] and he didn’t care for Ches-
ter.” Nonetheless, Damron’s adverse comments do not appear
to have been confined to Florian. “There may have been some-
body else,” testified Mahoney, when asked if Damron had re-
ferred to other employees in the way as he had to Florian. Be-
yond that, former Regional Manager Drufke testified that he
had heard Damron make comments about other employees, not
just Florian: “that’s just as a routine course of business. Rich
made his likes and dislikes pretty well known around the
plant,” for the most part about “people on either the coating line
or in the packaging area at the end of the line,” Drufke testified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1162
But, both Mahoney and Drufke denied specifically that, in the
course of such remarks, Damron had ever sought to have any-
one fired, including specifically Florian.
“No,” answered Mahoney, when asked by the General Coun-
sel whether Damron had ever mentioned firing Florian. Pursu-
ing the matter, Mahoney was asked whether Damron had sug-
gested during his most-recent conversation—likely to have
occurred after Florian had attempted to run in the 1997 unit
election—that Florian be terminated. “Well, if Chester’s name
came up it was just that he didn’t care for Chester. That’s all,”
responded Mahoney. “No,” he replied, when asked if Damron
had used any other kind of language about Florian, though Ma-
honey allowed that Damron might have called Florian a “fat
ass”—hardly a phrase which could fairly be construed as an
effort to cause Florian to be fired. Instead, despite continued
examination, Mahoney denied expressly that he had never been
told by Damron that the latter could not believe that Respon-
dent-Employer had not yet fired Florian, or had said that he
(Damron) could not believe that Florian was still around.
Former Regional Manager Drufke was obviously disposed
favorably toward Focht. All else aside, after leaving Respon-
dent-Employer Drufke became employed elsewhere and hired
Focht following the latter’s termination by Respondent-
Employer. Drufke did testify that Damron had never been re-
luctant to criticize coworkers, naming Phillips, Eddie Gammon,
Glen Thomas, Troy Calabrese, and Florian. However, testified
Drufke, “Rich never asked me to fire anyone that I recall,” nor
did Damron ever recommend to Drufke that anyone be fired,
save for a maintenance manager who was not a member of any
union. “No,” Drufke answered unequivocally, when asked
whether Damron had ever requested, recommended, sought or
urged Drufke to fire or to terminate anyone who was a member
of Respondent-Union.
The sum of these three witnesses’ testimony—that of Focht,
Mahoney and Drufke—is that Damron had complained to each
about coworkers, including Florian. It seems a fair conclusion
that had Damron been disposed to seek anyone’s termination
when complaining to one of them, in the natural course of af-
fairs he also would have sought that person’s termination when
speaking with the others. Yet, of the three, only Focht claimed
that Damron had been saying that Florian should be terminated,
in the course of voicing criticism about Florian’s performance.
The fact that Damron had criticized Florian, but had not sought
his discharge, when speaking with Mahoney and Drufke tends
inherently to contradict Focht’s testimony about such discharge
demands and requests by Damron with regard to Florian. For,
the record simply suggests no reason that Damron would have
voiced such demands and requests to Focht, but not to Ma-
honey and Drufke, even though he seemingly had voiced the
same criticisms of Florian to all three of them. That is particu-
larly so in the case of Drufke, since Drufke was Focht’s imme-
diate superior and, if Damron had truly been unable to obtain
satisfaction from Focht—by getting Florian discharged—then,
Drufke would have been the logical next link in the chain of
supervision, for having Florian terminated. Obviously, Damron
felt comfortable enough talking to Drufke about other employ-
ees.
In that regard, one point should not escape notice. While
Damron was an official of Respondent-Union, he remained a
statutory employee. As such, he was not barred from voicing
the same types of opinions as any other employees are entitled
to voice under the Act. His union official’s position did not
somehow compel Damron to relinquish a “freedom of action”
accorded statutory employees. Building & Construction Trades
Council of Tampa (Tampa Sand & Material Co.), 132 NLRB
1564, 1569 (1961). See also, Hospital Workers’ Local 250,
255 NLRB 502, 506 (1981). Like any other employee of Re-
spondent-Employer, Damron was allowed under the Act to
criticize—“bitch” about—his coworkers. He simply was not
allowed under the Act to seek that Respondent-Employer take
any employment action against those coworkers. The testi-
mony of Mahoney and Drufke shows that Damron had not
taken such a step, leaving the contrary assertions by Focht
hanging somewhat in the wind. And the wind blew more ill for
Focht when certain other aspects of his testimony are also com-
pared with other testimony given by Drufke and Mahoney.
Drufke testified that Focht had reported that Damron com-
plained about coworkers whom Damron did not regard as being
good employees. Having gone so far as to make a report of
such complaints, it seems natural that Focht would have re-
ported, as well, any discharge demands or requests made by
Damron. But, testified Drufke, “I can’t specifically remember
Jack coming to me and saying Rich is trying to fire people,” nor
“get people fired.” By those answers, Drufke did not appear to
be testifying that he did not recall whether or not Focht had
made such reports—to be testifying that Focht might or might
not have said that Damron had requested that certain employees
be discharged. For, Drufke was quite specific regarding what
Focht had reported. “Jack Focht complained on a few occa-
sions that Rich Damron had people he didn’t like and was real
vocal and Jack thought that might affect morale in the plant,”
explained Drufke. In consequence, Focht reported to Drufke
what Damron had been saying about other employees and,
further, reported what Focht felt would be possible adverse
consequences of what Damron had been saying. But, Focht
never reported to Drufke that Damron had ever sought the dis-
charge of any of those employees, specifically Florian.
As to Mahoney, in an apparent effort to establish that Dam-
ron had been willing to take that added step of seeking
Florian’s termination, Focht claimed that, during “1998, in
March, late March, early May,” he had been told by Mahoney
“that Rich had come to him [Mahoney] and he [Damron] also
told Dan that Chester was a troublemaker, he should be work-
ing there, we should fire him,” according to Focht. Of course
that account is contradicted by Mahoney’s above-described
denials: Mahoney testified that Damron had never told him that
Florian should be fired. Mahoney never testified that he had
told Focht that Damron had made such a demand—did not
corroborate the foregoing testimony by Focht of such a report
having been made by Mahoney. Beyond that, Focht’s testi-
mony in this area leads to consideration of three specific areas
opened to show, at least, inferential evidence of Damron’s hos-
tility toward Florian for having tried to run for unit chairperson
during 1997 and, as well, for expressing interest in, or intention
to, run for that position during 2000.
PRECOAT METALS 1163
According to Focht, the foregoing comments by Mahoney
had been made during a conversation pertaining to Focht’s
willingness to grant Florian’s request to be relieved of work on
a Saturday for which Florian had been scheduled to work. No
question that Focht was claiming that it had been that excuse
from work which had led to his above-described account of
Mahoney having said that Damron said that Florian was a trou-
blemaker who should be fired. “This all stemmed from the day
Chester wanted the day off and,” Focht testified, “He [Ma-
honey] said Rich had came [sic] to him complaining about
Chester and then we got into the day off and stuff like that and
. . . Dan said that Rich had been talking to him about [how] no
good Chester is and he shouldn’t be working here, that we
should have terminated him a long time ago.” “That’s what
Dan said,” Focht added. Aside from the fact that Mahoney did
not corroborate any of that account and, to the contrary, gave
testimony which, at least, tended to contradict some of Focht’s
testimony—given that Mahoney denied that Damron had sug-
gested that Florian should be fired during their then-most recent
conversation about Florian—there are three inherent problems
with Focht’s account.
One, not for the only time when testifying, Focht confused
the timeline that he was attempting to portray. The subject of
having granted Florian an excuse from a scheduled Saturday’s
work was preceded by questioning about Damron’s objections
to Focht having given Florian, Phillips, and Crylen records in
connection with their effort to be qualified to run in the 1997
unit election, as mentioned in subsection B above and as further
discussed below. After that questioning, and Focht’s answers
to it, Focht was asked, “Now, about that same time, which
would have been prior to the election in 1997, did you have a
conversation with Mr. Damron about granting days off to em-
ployees?” (Emphasis added.) There is no room for assertion
that that question had been mistranscribed. It was put a second
time to Focht, when he said he was confused about what had
been asked: “About that same time, which was before the elec-
tion in 1997, did you have a conversation with Rich Damron
about granting days off to employees?” (Emphasis added.)
As the sequence of questions and answers, in response to
those initial questions, unfolded, Focht testified that he learned
that Florian had not gotten the Saturday off, even though Focht
supposedly had excused him from work that Saturday. So, he
had gone to Mahoney to ask “why Chester’s day [off] was can-
celed after I had granted it,” testified Focht. The problem here
is, so far as the record discloses, there had been only one time
that Damron had protested about Florian having been excused
from a scheduled Saturday’s work and, in addition, only one
occasion when Focht had discussed that Saturday with Ma-
honey. Yet, as set forth three paragraphs above, Focht testified
that his conversation with Mahoney had occurred “1998, in
March, late March, early May,” while the above-quoted ques-
tions had led Focht to testify that the excuse from Saturday
work had been countermanded “prior to the election in 1997”
and “before the election in 1997”—at least a year before Focht
had the conversation, that purportedly “stemmed from the day
Chester wanted the day off,” with Mahoney. That discrepancy
was never explained.
Two, Focht claimed that it had been Mahoney who had
“canceled” Florian’s Saturday off. Yet, Focht had been Chicago
production manager during the entirety of 1997 and until, at the
latest, the following mid-May, as discussed in subsection D
below. During that almost 17-month period, he acknowledged
having been the highest-ranking on-site official at Respondent-
Employer’s Chicago plant. In contrast, Mahoney had been a
production foreman until March of 1997, then a material han-
dling foreman. In neither of those capacities has it been shown
that Mahoney possessed authority to countermand then-
Production Manager Focht’s personnel decisions. Even assum-
ing that the incident had occurred as late in the game as “early
May,” there is no basis for concluding that Mahoney had pos-
sessed such authority. Of course, if it had occurred after May
20, then Focht concededly had no longer possessed any super-
visory authority over Chicago plant employees and, obviously,
he had no authority to have even granted Saturday off to
Florian.
Three, Focht’s own internally contradictory testimony on the
point ended up refuting any implication that Damron had ob-
jected to excusing Florian from Saturday work because of some
sort of personal hostility harbored by Damron toward Florian—
such as because of activities in connection with the 1997 unit
election and possible activities during the 2000 election. Dur-
ing cross-examination, Focht was asked if Damron had said
that Focht was violating the collective-bargaining contract by
granting Florian that Saturday off. “No, he did not tell me
that,” answered Focht. “No,” Focht continued, Damron had not
given any reason for opposing a Saturday off for Florian.
However, those denied were contradicted by what Focht had
said in his prehearing affidavit, given on August 31: “Damron
complained that I was breaking the bargaining agreement by
granting a day off to Florian and Crylen.” Interestingly, the
affidavit also states, “During the end of May 1998, I had ap-
proved time off for a Saturday for Florian and Crylen after they
arranged for coverage.” As pointed out in the preceding para-
graph, and as discussed further in subsection D below, Focht
lacked supervisory authority over Chicago personnel by “the
end of May 1998” and, consequently, should not by then have
been granting anybody’s time-off request.
Confronted with that portion of his affidavit, Focht backed
off his above-quoted denials, contradicting them in the process.
“Yes,” he conceded, he had told the investigating agent on
August 31 that he had been accused of violating the collective-
bargaining contract. “I forgot about that,” he claimed some-
what lamely. “Yes,” he further admitted, Damron had leveled
the accusation that Focht was showing favoritism to Florian by
having allowed the latter to have Saturdays off, while not ex-
cusing other employees from Saturday work. Indeed, as to
Florian and Saturday work, Focht conceded, somewhat grudg-
ingly, “I can’t say that he [Florian] worked most of the time he
was scheduled,” though Focht was unwilling to say that Florian
had proffered dentists’ or doctors’ excuses for almost every one
of those excused Saturdays: “I would say possibly, maybe I’m
wrong, eight times that it might have happened” within a year.
But, Focht added hastily—perhaps because he feared that there
might be records which could contradict whatever he said about
the number of excused Saturdays—”I’m just guessing eight
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1164
times. I don’t count them.” As it turned out, while the record
reveals that the General Counsel had subpoenaed a number of
records, no records were produced to show the exact number of
Saturdays that Florian had been excused from work due to den-
tists’ or doctors’ notes, though there is neither evidence nor
representation that such records were not made available to the
General Counsel.
Aside from Focht’s internal contradiction, the significant as-
pect of point three is that the evidence shows that Damron was
not complaining about allowing Florian a Saturday off for no
legitimate reason. As Focht admitted ultimately, Damron was
protesting an asserted contractual violation, regardless of who
might be advantaged or disadvantaged by his complaint. Em-
ployee-protests about contractual violations are protected by
Section 7 of the Act. NLRB v. City Disposal Systems, Inc., 465
U.S. 822, 835–836 (1984). Such protection is not somehow
lessened by the fact that the complaining employee happens
also to be a labor organization’s officer, as well. No party here
has contended that granting an excessive number of discretion-
ary excuses from scheduled work would not violate Respon-
dent-Employer’s collective-bargaining contract with Respon-
dent-Union. Nor is there evidence showing that favoritism
toward a particular employee, or toward particular employees,
would not be a valid reason for employees, be they union offi-
cers or not, to complain about such seeming favoritism. Con-
sequently, so far as the evidence discloses, Damron’s complaint
about excusing Florian from scheduled work on that Satur-
day—whether it occurred before the 1997 unit election or dur-
ing 1998—had not been motivated by electoral opposition, past
or potential, by Florian, but had been generated by a belief, not
shown to have been formulated other than in good faith, of
contractual impropriety. And it was not the only instance when
Damron pursued such a course.
A second specific area in which Focht’s testimony was
aimed at demonstrating a specific illustration of Damron’s as-
serted animus toward Florian, for having tried to run for unit
chairperson, arose in connection with Focht’s production of
records to Florian, Phillips, and Crylen concerning possible
Sunday work during the 2 years preceding March 1997. No
question that Damron had protested about Focht having pro-
duced those records for three employees to inspect. Yet, as it
turns out, the evidence does not show that his protest had been
rooted in any supposed concern that examination of those re-
cords might reveal that Florian would be eligible to run for unit
office. Rather, the record reveals that Damron had been voic-
ing a complaint about bypassing an exclusive bargaining agent,
in favor of dealing directly with employees represented by that
bargaining agent.
Focht gave the three would-be candidates two sets of re-
cords: the personal attendance records of each of them and,
secondly, copies of all work schedules. There seems to have
been no problem in connection with production of personal
attendance records. To an extent, it seems that examination of
those records would have provided basis for Florian, Phillips,
and Crylen to determine when they had and had not worked. In
other words, there is some basis for questioning the need to
have also given those three employees work schedules on
which the names of all unit employees were listed.
True, Focht testified, “it’s a work schedule that we post on a
weekly basis that lets everybody know what shift they’re work-
ing.” Based on such testimony, it seemingly is a legitimate
point that, because those work schedules had been posted each
week, all employees would have seen them. Presumably, any-
one so disposed could have copied down each week’s list. Yet,
there is no evidence that any employee of Respondent-
Employer had ever done so. So far as the record shows, once a
list is taken down, it no longer is made available to employees.
And Focht admitted that employees have no right under the
collective-bargaining contract to see past work schedules. So,
it is somewhat overly facile to argue that because each list had
once upon a time been made available to unit employees, there-
fore an employee given a stack of past lists is being shown
nothing different than was once made public. The ability to
compare lists, itself, is an added feature of making such a stack
available to one or a few unit employees.
Employee work schedules are one subject encompassed by
the phrase “wages, hours, and other terms and conditions of
employment,” in Section 8(d) of the Act. Accordingly, exclu-
sive collective-bargaining representatives are entitled to bargain
about work schedules. More importantly, in the context of the
instant situation, such representatives are entitled to inspect past
work schedules, both to prepare for bargaining and to ascertain
if those schedules might disclose grievable information. Where
such information is given directly to unit employees, who hold
no union positions, such production sounds, at least, in direct
dealing with represented employees, to the disregard of their
collective-bargaining representative. See, e.g., Royal Motor
Sales, 329 NLRB 760, 771 (1999). Such conduct inherently
disregards the “statutory obligation to deal with employees
through [their] union,” in supplying information about unit
employees, “and not with the union through the employees.”
NLRB v. Triple A Fire Protection, Inc., 136 F.3d 727, 735 (11th
Cir. 1998), quoting with approval from General Electric Co.,
150 NLRB 192 (1964).
At no point, so far as the record reveals, had Florian, Phil-
lips, or Crylen attempted to approach Respondent-Union’s
officials, at either unit or local level, to secure past work sched-
ules through their bargaining representative. At no point, so far
as the record reveals, had Focht given notice to Respondent-
Union that he was supplying Florian, Phillips, and Crylen with
the work schedules.
Direct dealing was one specific component of Damron’s ob-
jection to production of the work schedules to those three rep-
resented employees. “Number one, they’re not Union offi-
cials,” testified Damron. In fact, Focht acknowledged that
Damron had said, “that he felt I should have come through,
they [the three employees] should have come through him to
get” the work schedules. “Yes,” Focht admitted finally, Dam-
ron had complained that Focht should not have allowed bar-
gaining unit people to bypass Respondent-Union. There is no
evidence refuting the genuineness of Damron’s objection on
that basis.
Beyond that, Damron voiced another reason for protesting,
one which arose because of asserted past dealings with Focht.
“Then number two, I can’t even obtain those” records, Damron
testified, because Focht’s response, when asked for records in
PRECOAT METALS 1165
the past, had been that “it would be too difficult to get this in-
formation for us.” That assertion was disputed initially by
Focht. “Rich always got records,” Focht claimed. Well, per-
haps not always, for Focht later testified, “Sometimes I did”
(emphasis added) gives attendance records and work schedules
to Damron. During redirect examination, however, Focht re-
treated somewhat from that equivocal concession, claiming that
“Sometimes” pertained only to work schedules, not to atten-
dance records. Of course, that is not so absolving, as that tes-
timony seems to be attempting to portray: Focht gave both
attendance records and work schedules to Florian, Phillips, and
Crylen. Even if he only “[s]ometimes” gave requested work
schedules to Respondent-Union, he still was giving some re-
cords to Florian, Phillips, and Crylen that he (Focht) did not
always give to Respondent-Union, when the latter requested
them.
In fact, during recross-examination, Focht retreated from any
assertion that he had always given requested attendance records
to Respondent-Union: “Most of the time I did. A lot of times
we would just talk about them and he [Damron] would just say,
I don’t need them. I would [have] given him the dates or some-
thing.” Well, half a loaf is better than none. At that, Focht then
returned to his initial flat assertion that, “I never refused him
[Damron] any files that he asked about.”
It is unnecessary to flog that second point advanced by Dam-
ron. It is not actually significant whether or not Focht had hon-
ored Respondent-Union’s past requests for information con-
cerning unit employees. What is significant is Focht’s above-
quoted acknowledgment that Damron had complained that
Focht “should have come through” him, as Respondent-
Union’s chairperson, when producing records pertaining to unit
employees. On its face, that is a legitimate objection for a
statutory bargaining agent to voice. Nothing in the record sup-
ports even an inference that Damron had voiced his objection
for the hidden, illegitimate, reason that disclosure might some-
how validate Florian’s desire to run for unit chairperson. To
the contrary, given the three considerations enumerated near the
beginning of this subsection, there is no objective basis for even
inferring that candidacy by Florian would have been of much
concern for Damron. In the totality of the circumstances, it
simply cannot be concluded that Damron’s protest had been
other than one genuinely aimed at what he believed to have
been bypassing and direct dealing by Focht.
To understand a third specific area aimed at showing with
specificity that Damron had harbored animus toward Florian
because of the latter’s internal union activity, some understand-
ing is required about Florian’s reputation in one area. Fairly or
unfairly, Florian had acquired a reputation for seeking small
items—a cup of coffee, money for a cup of coffee—to load,
and sometimes unload, commercial trucks faster. For example,
Production Foreman Wayne Joseph Dedina16 testified that,
when he had first started working at Respondent-Employer’s
Chicago facility during approximately 1994 or 1995, as a bar-
gaining employee in operations support, “I heard on several
occasions” about Florian “trying to shake down truck drivers to
get a couple bucks to unload the trucks quicker or he’d tell

16 Sometimes misspelled “Deddina” and “Didina” in the record.
them that he’s [sic] load their trucks quicker if they bought him
a cup of coffee, stuff like that.” Dedina acknowledged that he
had never seen Florian do any of those things. Rather, he testi-
fied that he had “heard it from several people,” though he did
not name any of them. Of course, had he been trying to fabri-
cate that testimony, Dedina seemed perceptive enough to rec-
ognize that fabrication would have been strengthened were he
to testify that he had actually seen Florian “shak[ing] down”
drivers or, at least, named some employees who had told him
that. That Dedina did not do so seemed some indication that he
was trying to testify honestly about what he knew.
Furthermore, testimony about such conduct by Florian was
not confined to Dedina. Roy Hurd, a shipping clerk who had
worked 35 years for Respondent-Employer, testified that, at
some point during 1997 or during early 1998, he had been ap-
proached by a truckdriver, whom Hurd could not identify by
name, complaining “[a]bout somebody trying to get money off
him for loading or unloading him.” Hurd acknowledged that he
had never told any official of Respondent-Employer about that
driver’s complaint. But, another employee, who had heard
similar complaints by drivers, testified that he had approached
Florian about what the drivers had been saying, though he did
not report those complaints to Respondent-Employer.
Michael George Podlasek, an employee who had worked in
shipping and in receiving for 7 years, testified that drivers had
said that Florian had been asking for “stuff” from them. Pod-
lasek testified that he spoke to Florian about what those drivers
were saying: “I said to him, on a couple occasions, . . . stop
sticking your hand out. Stop asking for stuff. Just do the job.
Don’t shake nobody down.” According to Podlasek, Florian
replied, “I’m not doing nothing like that,” a reply which, at
least, tends to indicate that Florian had not been doing what the
drivers had complained about to Hurd and Podlasek. Still,
Florian never denied having been told by Podlasek to “stop
sticking your hand out” and, “Don’t shake nobody down.” So,
it is uncontroverted that Florian had been told that by Podlasek.
The fact that Podlasek had done so is at least some indication
that, in fact, drivers had made such complaints about Florian—
complaints which, in turn, had led Podlasek to admonish
Florian to stop doing so.
In fact, there was one employee who testified that he had ac-
tually seen Florian seeking money from a driver. Ricky Hollins
had been employed by Respondent-Employer as a packer in C-
bay and D-bay for 4-1/2 years. As noted in subsection A
above, annex operations support employees, such as Florian,
occasionally did work in those bays, unloading incoming ship-
ments. Hollins testified that he had overheard Florian charge a
truckdriver, picking up a shipment destined for Jim Walters
Company, two dollars apiece for skids which ordinarily were
provided free to drivers who needed them, at least when skids
were available.
Hollins also testified that he had heard, and had related to
other employees that he had heard, Florian “tell drivers if they
give him a coffee, buy him a coffee or money [sic] that he
would unload them faster.” Hollins testified that he was unable
to recall when those incidents had occurred, but he asserted that
Florian had “asked a lot of times.” Given Podlasek’s above-
described undisputed admonitions to Florian, it seems likely
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1166
that Florian had been making requests for, at least, coffee and
coffee-money to unload drivers’ deliveries. More importantly,
in the context presented here, is Hollins’s testimony that he had
related what he had seen to other employees. Florian acknowl-
edged that the Chicago facility is a small plant and that people
talk constantly. “Small plant, that if something is said it spread
out pretty quick,” testified Florian. So, if Hollins had told only
a few employees, it is likely that what he had said to those em-
ployees would have spread to other employees. Of course, that
is how rumors circulate. And such a rumor would be signifi-
cant. For, Focht conceded that “you don’t charge people to
unload them fast,” and, further, that such conduct would have
been a dischargeable offense at Respondent-Employer while he
(Focht) had worked there.
All of which leads to Focht’s testimony about events during
a December 1997 labor-management meeting. Such meetings
are conducted monthly, to allow local labor and management
to, in essence, clear the air between them, pursuant to article
XXVI, Section 3 of the 1995–1999 collective-bargaining con-
tract. Normally attending such meetings at that time would be
Focht, Damron, as many grievance committeepersons as were
able, and sometimes Abbott and Mahoney.
With respect to the December 1997 labor-management meet-
ing, initially Focht testified that, during it, Damron “had
brought up the fact that Chester was taking money from truck
drivers to unload steel fast[er].” “I told Rich I don’t believe
that,” testified Focht, but Damron “looked at . . . Ed Morales
and Manny Escobito [sic],” saying to them, “You guys know it,
you heard the truck driver telling” it. After Morales and Esco-
bedo agreed with Damron, Focht testified that he had told those
unit officials, “I’m not going to do anything about this. You
have to bring me proof,” and, “They said they would”—that “a
truck driver would come forth,” and that, “They were supposed
to bring them [drivers] to me to testify.”
According to Focht, Damron continued by saying “that
Chester was lazy and no good and shouldn’t be working there,”
a remark seconded by Morales and Escobedo. Then, continued
Focht, “at the close of the meeting Rich had said and they were
all three in agreement that Chester, Wayne Cryland [sic], Tom
Phillips and Glen Thomas should all be fired. None of them
should be working at this plant.” Focht testified, “I just
dropped it right there.” But, Focht’s testimony shows that he
had not “just dropped it right there”; he claimed to have pur-
sued Damron’s asserted accusation “right after that meeting”
when “I went out [and] tried to clear this matter up,” by sum-
moning Mahoney and telling him about “the [accusations] that
had [been expressed] in this meeting and that I didn’t believe it
and I would like to have him talk to Chester.” “Dan came back
and told me that he had talked to Chester and Chester denied
it,” testified Focht.
Nor, Focht testified, did the matter of Florian and truckdriv-
ers end for Damron after the December 1997 labor-
management meeting. “Once or twice” after that meeting, ac-
cording to Focht, Damron had repeated his accusation about
Florian and truckdrivers. Focht claimed that he repeated that he
needed proof and Damron assertedly said that it would be
forthcoming. But, that never happened.
Morales denied that he had attended the December 1997 la-
bor-management. Furthermore, he denied that, at any meeting
he had attended, Damron had ever told Focht that he should fire
or discharge Florian. And Morales denied that Damron had
ever made an accusation that Florian was charging truckdrivers
money or had ever accused Florian of taking money from
truckdrivers. Morales also denied that he had ever said, at a
labor-management meeting, that Florian should not be working
at Respondent-Employer or should be fired.
For his part, Damron acknowledged having attended the De-
cember 1997 labor-management meeting. But, he denied hav-
ing brought up the subject of Florian taking money from truck-
drivers, denied looking toward Morales and Escobedo for af-
firmation of such an accusation, denied having told Focht that
Florian was lazy, no good and should be fired, and, further,
denied having said that Florian, Crylen, Phillips and Thomas
should be fired.
Escobedo also acknowledged having attended the December
1997 labor-management meeting. He corroborated some of
Damron’s denials by denying that Damron had accused Florian
of charging money to truckdrivers, denying that he (Escobedo)
had ever agreed with such an accusation by Damron, and deny-
ing that he (Escobedo) had told Focht that Florian should not be
working at Respondent-Employer and should be fired. Of
course, some support for Damron’s and Escobedo’s, as well as
for Morales’s, denials is provided by the discussion above con-
cerning the lack of support for Focht’s testimony regarding
Damron’s purported ongoing demands and requests for
Florian’s termination. Beyond that, the accounts of Damron
and Escobedo regarding the December 1997 labor-management
meeting consisted of more than denials of the statements about
Florian and others which Focht attributed to all three of them,
but primarily to Damron.
Both Damron and Escobedo testified that it had been Focht
who had brought up the subject of Florian taking things to
unload trucks. “He just said that he had heard a rumor that
Chester Florian was taking the truck drivers for loading and
unloading and selling skids,” testified Damron. Similarly,
Escobedo testified that Focht “said that he had heard that Ches-
ter Florian was hitting the truck drivers to unload them, and
selling skids.” Damron and Escobedo each testified that those
accusations had not been left unchallenged. “I asked Mr. Focht
could he verify that,” or, “Do you have any evidence, a verifi-
cation of this,” or, “Could you verify. Can you verify this,”
Damron testified. According to Damron, Focht had “said he
could when he gets ready to, when it comes down to it, yeah,”
or, “when the time comes when necessary or something like
that statement. He can, he can prove it.” In like vein, Esco-
bedo testified that “Rich told Jack” that “you’ve got to prove it
Jack, you’ve got to show us some proof,” or, “you’ve got to
prove that Jack, that’s a serious offense,” to which Focht re-
torted, “when the time comes,” or “give me time and I will.”
As the meeting had been nearing its conclusion, Damron tes-
tified, “I threw a little rib into” Focht, by telling him that, “Mr.
Boyle was going over to Portidge [sic], Indiana and straighten
out the mess that [Focht] made over there.” According to Dam-
ron, Focht “got mad,” and “called me a little ass hole. And that
I was a no-good son of a bitch,” among “other words,” after
PRECOAT METALS 1167
which Focht said “that he’s going to get me,” and “threw his
chair back and went out the door.” Escobedo corroborated that
account by Damron: “Rich Damron told Jack that he heard Jim
Boyle was going to be—was coming or was there in Portage to
clean up his mess,” or “the mess that he caused over there,”
after which, “Jack got up,” saying “you little c—ksucker, I’m
going [to] get you,” and “stormed out of the door—out of the
room.” Not only were those accounts by Damron and Esco-
bedo essentially corroborative, but the account of each re-
mained basically consistent, with their accounts during direct
examination, in the face of relatively thorough cross-
examination about what had been said during that December
1997 meeting.
On the other side, during cross-examination Focht was asked
if he had been the one who repeated the rumor about Florian
and truckdrivers. Afforded that opportunity, Focht denied gen-
erally that he had done so. Still, Focht was never called as a
rebuttal witness and, consequently, never contested the above-
described specific accounts by Damron and Escobedo regarding
Focht’s initiation of discussion about Florian and truckdrivers,
nor the remarks attributed to Focht during that discussion. As
mentioned already, there seems little objective basis for con-
cluding that Damron would have likely been concerned by
December of 1997 about Florian’s failed unit chairperson can-
didacy 9 months earlier, nor about some possibility that Florian
might again attempt to run for that position over 2 years in the
future. Moreover, Focht’s account encounters heavy seas when
compared with the record of Mahoney’s testimony.
While he testified that Damron’s statements about Florian
and truckdrivers had occurred during the December 1997 labor-
management meeting, Focht stated in a prehearing affidavit that
the meeting could have been that of “December 1997 or Janu-
ary 1998.” After being shown that portion of his affidavit,
Focht claimed that he could not recall which month it had been.
Later during cross-examination, however, he reasserted, as he
had done during direct examination, that Florian had been ac-
cused by Damron in “1997.” And during redirect examination
Focht repeated unequivocally, “That was the December meet-
ing.” No question, by the time that his testimony concluded,
Focht was testifying firmly that Damron had made his asserted
remarks during the labor-management meeting of December
1997.
In addition, Focht’s testimony leaves no room for doubt that,
as quoted above, it had been “right after that meeting” that he
had spoken to Mahoney about what Damron had purportedly
said about Florian. “Yes,” answered Focht, when asked during
cross-examination if it had been after that meeting that he had
told Mahoney about Damron’s accusation. The problem with
that placement of his comments to Mahoney is that, when the
record of Mahoney’s testimony is examined, that testimony by
Mahoney contradicts that of Focht.
It “had to be early 1998, January, February, somewhere
around there,” testified Mahoney, when Focht had spoken to
him (Mahoney) about Florian taking money from truckdrivers.
That could not have occurred in December 1997 because, Ma-
honey testified, Focht had raised the subject of Florian and
truckdrivers after a labor-management meeting that Mahoney
had attended. But no one, including Mahoney, claimed that
Mahoney had attended the December 1997 labor-management
meeting.
It could be that all three witnesses—Focht, Damron and
Escobedo—had been off a month in their accounts of the meet-
ing when there had been an exchange regarding Florian and
truckdrivers. That seems unlikely, however. And if that had
been the case, that would mean that the exchange had occurred
during the January 1998 labor-management meeting when Ma-
honey had been in attendance. Aside from the fact that not one
of the three other witnesses—Focht, Damron and Escobedo—
had placed Mahoney at the meeting when there had been an
exchange about Florian and truckdrivers, Mahoney denied
flatly that anything had been said about Florian and truckdriv-
ers during the labor-management meeting that he had attended.
“No,” Mahoney answered unequivocally, when asked if he had
been present when an accusation had been made about Florian
and truckdrivers. In fact, Mahoney’s description of what Focht
had said to him, after the labor-management meeting that both
had attended, gives rise to further conflict between the accounts
of Mahoney and Focht.
Focht was asked specifically if he had told Mahoney that the
committee had come to him after the meeting and raised the
subject of Florian and truckdrivers. “No, I did not,” answered
Focht, tell Mahoney that. Yet, that is precisely what Mahoney
testified, repeatedly, that Focht had said: “he said something
was said after a meeting that Chester did something”; “appar-
ently this was said after the meeting”; “The meeting was over
and apparently this was said after the meeting”; “Jack said after
the meeting that the committee said that Chester was shaking
down truck drivers and that one of the drivers was going to
come today and identify him.” “I was in the meeting, yeah,”
testified Mahoney. “No,” he responded, when asked if he had
been around when the exchange about Florian had occurred.
In sum, contrary to Focht’s testimony, Mahoney’s account
precludes any conclusion that Focht had spoken to Mahoney,
about the exchange concerning Florian and truckdrivers, imme-
diately after the December 1997 meeting when that exchange
had occurred. Mahoney had not attended that meeting, and
nothing had been said during the January 1998 labor-
management meeting after which, according to Mahoney, Focht
had told him that something had been said about Florian and
truckdrivers after that meeting had adjourned. That was not the
only conflict between the accounts of Focht and Mahoney in
connection with this subject.
As described above, Focht testified that he had directed Ma-
honey to “talk to Chester,” and Mahoney “came back and told
me that he had talked to Chester and Chester denied it.” Now,
both Focht and Mahoney testified that the former had talked to
the latter about the exchange concerning Florian and truckdriv-
ers. However, Mahoney never testified that Focht had asked
him (Mahoney) to “talk to Chester” about that subject. Ma-
honey testified merely, “I just wanted to get down, get to the
bottom of it, that’s all.” “So, I investigated it,” testified Ma-
honey. So far as his testimony reveals, Mahoney had under-
taken on his own to speak with Florian.
A conclusion that, contrary to his testimony, Focht had not
asked Mahoney to speak with Florian gathers greater force
upon examination of Mahoney’s testimony regarding what
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1168
happened after he had spoken to Florian. Asked if he had re-
ported back to Focht what Florian had said, Mahoney answered
flatly, “No.” Later during examination that question was again
put to Mahoney. “Not that I recall, no,” responded Mahoney.
Well, the questioner’s thinking seemed to proceed, possibly
Focht had asked Mahoney what Florian had said. When first
asked that, Mahoney seemed uncertain: “Not that I know of. I
can’t remember if he did or not.” As questioning continued,
however, Mahoney seemed to be trying to think whether or not
that had happened. For, when that possibility was later pursued
further, at that point Mahoney answered unequivocally, “No,”
Focht had never come back to him about the matter.
Some contradiction of Mahoney’s testimony, about being
told by Focht in 1998, appeared to arise from Florian’s testi-
mony. Initially, he agreed that he had spoken to Mahoney,
about the subject of truckdrivers, during December of 1997.
But, his placement of that conversation with Mahoney was
based upon a suggestion in the question, which led to his
agreement: “Directing your attention to December of 1997, did
you have a conversation with Mr. Mahoney about a complaint
made against you?” As cross-examination commenced, how-
ever, and no “December of 1997” suggestion was made to
Florian, he began somewhat of a retreat from that month and
year.
“I believe it was in December of ‘97,” he first testified dur-
ing cross-examination. Then he was shown an “AMENDED
COMPLAINT,” date-stamped as “RECEIVED” on January 20,
1999, filed on behalf of Florian and Kenneth Rolfe in the
United States District Court, Northern District of Illinois, East-
ern Division. The complaint’s Count III, paragraph 5, on page
14, states, in pertinent part, “On or about, January, 1998, de-
fendant Damron . . . stated Florian solicited bribes from truck
drivers to unload their respective trucks first and/or faster. This
false statement was made to Jack Focht, . . . and Manny Esco-
bedo and Ed Morales. . . .” Well, Florian tried to explain, “I
believe it was . . . on or about January. December, January,
that’s pretty close to me. On or about.” Later during cross-
examination, Florian continued to try having it both ways.
Asked when Mahoney had come to him, about the truckdrivers,
Florian answered, “No, I believe sometime in December of ‘97,
January of ‘98.” He agreed that Mahoney had only come to
him one time. That conflict between Florian and Mahoney
might be regarded as nothing more than a discrepancy over
detail. But, it was not the only conflict between the accounts of
Florian and Mahoney.
Another one arises when their accounts of their conversation
are compared. Florian testified that, after being asked by Ma-
honey about “soliciting truck drivers,” he had inquired of Ma-
honey, “Who did you get this information from and he told me,
his exact words were, your friend Mr. Damron came in and had
made these statements.” Those were not “his exact words”
according to Mahoney. “I just told him [Florian] that the word
is that you’re shaking down truck drivers,” testified Mahoney,
to which “his response was that that was Rich Damaron [sic].
He was making that up.”
Counsel for Charging Parties later took up the subject of that
conversation, asking what Florian had said. “His reaction was
it’s not true and it’s that Damaron [sic],” responded Mahoney.
Asked, then, “Did you say anything to Chester in that conversa-
tion to make him feel it was Damaron [sic] that made the
statement?” Mahoney answered unequivocally, “No.” Pressed
further, and perhaps alerted by the very repetition of question-
ing that his answers might be hurting Florian, Mahoney testi-
fied, “All I remember telling Chester is the committee, so-
called, it was that the word is that your were doing this” (em-
phasis added), thereby contradicting his own earlier above-
quoted “the word is” testimony. Perhaps realizing that he was
now contradicting himself, Mahoney quickly reversed field by
testifying, “I don’t know if I said the committee,” and by reiter-
ating that he had said to Florian merely, “Chester, the word is
that your [sic] doing this.”
The point of the foregoing review of testimony is not that
there was no accusation made during a labor-management
meeting about Florian and truckdrivers. Clearly that did hap-
pen. The issue is whether it had been made by Damron or by
Focht. As to that accusation, Focht was the only witness to
attribute the accusation to Damron. Of course, Focht had been
the only nonofficial of Respondent-Union present during that
meeting, since it obviously could not have been the one con-
ducted in January 1998, given Mahoney’s testimony. Even
taking into account Focht’s solitary status during the December
1997 meeting, however, his own internal contradictions and the
inconsistencies between his account and that of Mahoney,
leaves Focht’s assertion that Damron had made the accusation
as unreliable as much of Focht’s other testimony. To be sure,
the obvious question arises as to why Focht would have chosen
to make such an accusation, since seemingly he had no reason
to attack Florian in front of Damron and Escobedo. The answer
to that question emerges when the testimony of another witness
is examined.
Harry J. Jann was employed in Respondent-Employer’s
Portage plant by the time he appeared as a witness in this pro-
ceeding. But he had worked in the Chicago plant before being
transferred to Portage. While working there, Jann and Focht
had been friends. In fact, a couple of times Jann had been in-
vited to Focht’s summer trailer. Jann testified generally that
Focht “liked to brag about how he could start rumors flying in
the plant with union employees.” Pressed, as a result of objec-
tion, for greater specificity, Jann testified that Focht “would tell
one union employee” that “[t]here’s going to be a layoff. He’d
tell another union employee there’s not going to be a layoff.”
Pressed again for greater detail, Jann supplied it, becoming
more convincing in the process. He testified that, as he and
Focht were talking together “[o]n the top of the platform” dur-
ing “around ‘93,” Focht had said that he had told one employee
there was going to be a layoff, but told another employee that
there would not be a layoff. “I like to see how they conflict
this,” said Focht, according to Jann.
Inasmuch as Focht was not called as a rebuttal witness, he
never denied having made those above-quoted statements to
Jann. If nothing else, those statements tend to show a disposi-
tion by Focht to say things which play both ends against the
middle. That disposition tends to be further shown by another
incident, involving the newly appointed vice president of manu-
facturing, as described in the immediately following subsection.
As pointed out in the immediately preceding subsection,
PRECOAT METALS 1169
Florian acknowledged that Focht was anything but enamored at
having to deal with Damron as unit chairman. As Jann’s own
above-described, more specific account shows, Focht was not
reluctant to tell one person something, while telling another
something else. Given those considerations, it is hardly im-
plausible that Focht simply chose to accuse Florian of miscon-
duct to see how Damron and Florian would “conflict” that ac-
cusation. In short, Focht leveled the accusation to make trouble
between two individuals—Damron and Florian—who did not
particularly care for each other. When no “conflict” appeared
to result, Focht upped the ante by mentioning Florian and
truckdrivers to Mahoney. Although there is no credible evi-
dence that Focht told Mahoney to relate the accusation to
Florian, it was not unforeseeable that Mahoney would do so.
Sure enough, Florian bit and attributed the accusation to Dam-
ron—even though Mahoney could as easily have heard it from
anyone else in the Chicago facility, given the above-described
rumors about Florian and truckdrivers.
The events covered in this subsection fall under the analyti-
cal heading of background evidence. Testimony about them
was elicited to show a background of antagonism on the part of
Damron toward Florian and, furthermore, a willingness by
Damron to act on that antagonism by making unlawful “at-
tempt[s] to cause” Respondent-Employer to discharge Florian,
in violation of Section 8(b)(2) of the Act. Given the discussion
in this subsection, that showing has not been reliably—
credibly—made. Nonetheless, as discussed in succeeding sub-
sections, the effort was not abandoned.
D. Roger L. Kramer In—Jack Focht Out
As will be seen in subsection below, Roger L. Kramer17 is
the official who made the late summer early fall decisions to
put Focht on leave of absence, offer Focht a last chance agree-
ment, and discharge Focht. Even earlier, during May, Kramer
made the decision to transfer Focht out of the Chicago produc-
tion manager position which Focht then occupied, a matter
discussed in more detail below.
Kramer had begun working for Respondent-Employer during
June of 1990 as a regional manager for the Northgate plant in
Granite City and for St. Louis plant—a parallel position to the
regional manager position held by Drufke for the Portage and
Chicago plants. In February of 1998 Kramer became vice
president of manufacturing, with authority over all seven of the
plants operated by Respondent-Employer. Not long thereafter,
Kramer experienced an incident with Focht, which further
shows Focht’s willingness to play both ends against the middle,
as mentioned near the end of the immediately preceding sub-
section. It was also an incident which introduces Kenneth
Rolfe to the overall sequence of events.
Kramer testified that his review of February labor utilization
at Respondent-Employer’s plants disclosed, in his opinion, that
labor was not being aligned very well with production at some
of those plants, one of which was the one in Chicago. Ordinar-
ily Kramer would have spoken with then-Regional Manager
Drufke about that situation. However, testified Kramer, Drufke
then was on vacation. So, Kramer called then-Production Man-

17 Sometimes misspelled in the record as “Krammer.”
ager Focht and said that it appeared that Chicago labor costs
were too high and, from the number of employees there, that
four shifts were being worked. According to Kramer, Focht
replied, “That’s right it is. I’ve been talking to Ray [Drufke]
for the last couple weeks saying we should go to three shifts.”
When Kramer said that that should be done, he testified that
Focht protested, “Well, Ray said not to make any changes
while he was gone,” and Kramer replied, “Look, I’ll take the
responsibility for you doing something that Ray maybe told you
not to make because” the shift-reduction was necessary. Unre-
called as a rebuttal witness, Focht never denied any of the fore-
going testimony by Kramer, particularly have made the state-
ment, “I’ve been talking to Ray for the last couple weeks say-
ing we should go to three shifts.”
Upon his return from vacation, according to Kramer, a
“pretty irritated” Drufke telephoned Kramer and leveled the
accusation that, “Jack told me that you called up here and de-
manded that we take Chicago back to three shifts,” adding,
“Don’t you know that we can’t do that because there’s a [col-
lective-bargaining] contract requirement that requires a one
week notification before you change from four shifts to three
shifts.” In reply to those remarks, Kramer testified that he had
denied having made a “demand” for the shift-reduction, and
had told Drufke that “Jack agreed that you should be on three
shifts. In fact he said that he had talked to your about this,”
adding that it was Drufke and the production manager’s respon-
sibility to be aware of contractual terms and to comply with
them. Drufke appeared as a rebuttal witness, but never con-
tested any aspect of Kramer’s foregoing testimony about their
telephone exchange.
The foregoing two telephone exchanges, and their underly-
ing events, appear to have bred two attitude-consequences.
First, the second one led Kramer to become suspicious of
Focht: to feel that he had said one thing during their telephone
conversation, but had said something different to Drufke. Of
course, in the context of the instant case, that is essentially the
same sort of both-ends-against-the-middle attitude that Focht
had displayed when describing to Jann during 1993 what he
(Focht) had been telling union employees about a layoff. That
is, Focht had left Drufke and Kramer to “conflict this.”
Second, when he testified Drufke displayed a sympathetic at-
titude toward Focht. Indeed, that went so far that Drufke ad-
mitted he had not believed that Focht had made certain state-
ments to government investigators, as discussed further below,
even though another official of Respondent-Employer over-
heard some of what Focht had said to those investigators.
There is no reason to believe that Drufke had felt any more
willing to believe Kramer’s assertion that Focht said he (Focht)
“agreed that you should be on three shifts” to Kramer. Indeed,
Focht may never have spoken to Drufke about shift-reduction,
but merely had chosen to say that to Kramer. In any event, the
shift-reduction incident appears to have generated some hard
feeling by Drufke toward Kramer.
One of the employees laid off, as a result of the March shift-
reduction, was Kenneth Rolfe. There is no allegation that Re-
spondent-Employer—nor Respondent-Union, for that matter—
had somehow violated the Act in connection with that layoff,
nor by Rolfe’s selection as one of the employees laid off.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1170
Rolfe had begun working, in operations support, for Respon-
dent-Employer on October 15, 1997. Under article IX of Re-
spondent-Employer’s then-effective 1995–1999 collective-
bargaining contract with Respondent-Union, newly hired em-
ployees served a 60-day probationary period, but that period
could be extended an additional 30 days “upon written notifica-
tion to and discussion with” Respondent-Union. Once employ-
ees’ probationary periods are completed, those employees be-
come “regular employees and have continuous service from
date of hire.” Thus, by the time of his March layoff, Rolfe had
completed his probationary period and was a “regular em-
ployee[ ].”
Although Rolfe acknowledged that he was not contending
that he had been laid off improperly, the record discloses testi-
mony that he had become angered at being selected for layoff.
Steven or Stephen Thomas Wright was twice called as a wit-
ness: first during the General Counsel’s case-in-chief, then
during that of Respondent-Employer. Like Rolfe, Wright had
been included in the March layoff. During his second appear-
ance as a witness, Wright testified that, on the day of the layoff,
an angered-appearing Rolfe had said that he had not said any-
thing when he had earlier injured his arm while working, “but
they ain’t going to pull this shit on me,” referring to his selec-
tion for inclusion in the layoff. Apparently Rolfe was no more
impressed by the layoff criteria in the collective-bargaining
contract, than Phillips had been about contractual criteria in
connection with his own selection to work a shift that con-
flicted with his school schedule, as discussed in subsection B
above.
According to Wright, Rolfe continued that day by saying,
“they’re going to have a lawsuit on their hands for this case,”
and, “I’ll sue them for it.” Alluded to when Wright appeared
the second time as a witness, some months after his original
appearance as a witness for the General Counsel, was the fact
that he now was appearing as a witness for Respondent-
Employer. Yet, Wright seemed no less candid during his sec-
ond appearance, than had been the fact during his earlier ap-
pearance. His description of his March conversation with Rolfe
was specific and detailed. Most importantly, Rolfe was never
called as one of the rebuttal witnesses, with the result that
Wright’s above-described testimony was never refuted. Not
only does it tend to demonstrate Rolfe’s general attitude toward
collective-bargaining contract compliance, but it shows as well
Rolfe’s disposition to retaliate whenever he felt disadvantaged,
even though no impropriety had occurred.
Rolfe filed a workers compensation claim against Respon-
dent-Employer. But, not as a consequence of his layoff and not
as a consequence of his earlier-injured arm. As to the latter,
Rolfe had cut his arm while working during February. He had
left work and gone for treatment to the hospital. He testified, “I
went back to work that night with stitches in my arm.” Despite
that injury, Rolfe continued working steadily thereafter at Re-
spondent-Employer, until laid off during the following month.
So far as the evidence discloses, that injury had never subse-
quently incapacitated him for work.
Yet, when initially asked if his workers compensation claim
had been related to his cut arm, Rolfe answered, “Yes, it was.”
But as questioning progressed, Rolfe admitted that his workers
compensation claim had been for bilateral carpal tunnel syn-
drome, a condition not shown—at least from the record made in
this proceeding—to have been related to a cut arm. Beyond
that, by the time of his layoff, Rolfe had been employed by
Respondent-Employer for less than 6 months. Anything is
possible. Yet, it seems somewhat of a stretch to infer that car-
pal tunnel syndrome had developed in so short a period. Cer-
tainly nothing inherent in Rolfe’s operations support work has
been shown to naturally lead to that condition. That is, there is
no evidence was adduced to show that carpal tunnel syndrome
might naturally result from the duties which Rolfe had per-
formed for Respondent-Employer. And there is no evidence
that any other operations support employees, working for Re-
spondent-Employer, had ever developed that condition. In
short, there was every basis for Respondent-Employer to be-
come genuinely suspicious of the reason underlying Rolfe’s
workers compensation claim. Nevertheless, Rolfe tried to por-
tray Respondent-Employer’s eventual challenge to that claim as
somehow rooted in animus toward him because of activity pro-
tected by the Act, more specifically because of a supposed
close relation to Florian, even though no such allegation ap-
pears in the complaint. And Rolfe attempted to portray Re-
spondent-Union as hostile toward his effort to file a grievance
against Respondent-Employer, supposedly also because of a
close relationship with Florian.
In a sense, that is a somewhat difficult argument for Rolfe to
make. He admitted that when Respondent-Employer initially
contested his workers compensation claim, he had gone to Staff
Representative Langele and had asked for the name of an attor-
ney to help him prevail on his claim. Langele pointed out that
Steelworkers did not handle workers compensation claims, but
gave Rolfe a list of attorneys, from which Rolfe could pick one.
Rolfe never explained why he had chosen to approach a staff
representative, instead of an officer of Respondent-Union, con-
cerning this subject, but the fact is that he admitted that Langele
had been willing to supply him with a list of attorneys.
As mentioned above, the primary thrust of the argument in
support of the allegation against Respondent-Union regarding
Rolfe is that Rolfe was perceived as being some sort of ally of
Florian. In fact, Rolfe testified that he had applied for work at
Respondent-Employer as a result of Florian’s suggestion. Ac-
cording to Rolfe, he had “met Mr. Florian while watching a
neighbor bowl” during the 33-week bowling season preceding
October of 1997. “Twice,” testified Rolfe, he had spoken to
Florian during that time. In one of those conversations, testi-
fied Rolfe, Florian had said “that there was a job available at”
Respondent-Employer and Rolfe “went over for an interview,”
which led to his being hired. Two points should not escape
notice in connection with that account by Rolfe. First, Florian
never corroborated it. Second, more importantly, there is no
evidence that officials of Respondent-Union had any knowl-
edge that it had been Florian who had assertedly suggested that
Rolfe apply for employment with Respondent-Employer.
In an apparent effort to supply evidence of a link between
himself and Florian, as well as between himself and Phillips,
Rolfe described an incident occurring at work during Novem-
ber of 1997. The record shows that during direct examination
Rolfe claimed that “right after I attended a Union meeting” in
PRECOAT METALS 1171
November of 1997, “Manny [Escobedo] had come back and
told me I had better stay away from Mr. Florian and Mr. Philips
[sic] because they’d get [me] in trouble. It was right after I
attended a Union meeting.” When counsel then asked Rolfe to
describe “the whole conversation,” Rolfe modified somewhat
what Escobedo supposedly had said about Florian and Phillips:
“I had asked Manny some questions about the Union. He, re-
garding my, if holidays were counted as days towards your
probationary period,” testified Rolfe, “and I told him I had
spoke[n] to Mr. Florian and Tommy Philips [sic]. He told me I
better stay away from Tommy Philips [sic] and Chester and
listen to what the union had to say.” No accusation by Rolfe at
that point about Florian and Phillips getting Rolfe “in trouble”
After Rolfe provided that lengthier explanation, he was asked if
Escobedo had said anything else. “No,” answered Rolfe.
“Yes,” Rolfe responded, when asked if Escobedo then had left.
Escobedo never denied having participated in such a conver-
sation with Rolfe. But, Escobedo denied explicitly having told
Rolfe to stay away from Florian and Phillips because they
would get him in trouble. And as cross-examination pro-
gressed, Rolfe’s above-quoted accounts encountered some
heavy seas.
As pointed out, Rolfe testified that his conversation with
Escobedo had occurred, at work after a union meeting during
November. No question Rolfe was claiming, at least initially,
that the union meeting had been one which had occurred during
November and, further, that he had attended that meeting. No
one appears to contend that Local 3911 had more than one
monthly meeting. When the subject was probed during cross-
examination, Rolfe was asked specifically if he had attended
the union meeting during November. “That’s correct,” Rolfe
answered unequivocally, “On 65th Street,” and, “I believe
that’s the hall.” “Yes, I did,” sign a sign-in book at that meet-
ing, responded Rolfe. “Yes, it was the first meeting I went to.
I signed in,” he reiterated.
Rolfe was shown the sign-in sheet for Local 3911’s Novem-
ber 2 meeting and was asked to locate his name on it. He was
unable to do so. “This wasn’t the meeting I attended,” he testi-
fied, somewhat lamely. Yet, he never suggested that there had
been some other November meeting that he had attended, such
as a unit meeting. Nor did Rolfe suggest, in light of the No-
vember 2 sign-in sheet that he had been shown, that there had
been some later specific meeting to which he had been refer-
ring. And that was not the only problem with his above-quoted
account that emerged from cross-examination.
As pointed out above, after first claiming that Escobedo had
said that he could “get in trouble” if he did not stay away from
Phillips and Florian, Rolfe then testified that Escobedo had said
merely to “stay away” from them “and listen to what the Union
had to say.” Well, the latter is not so extraordinary a statement,
given that Rolfe was inquiring about a particular application of
a collective-bargaining contract’s particular provision. During
cross-examination Rolfe was afforded an opportunity to reaf-
firm his first account. “Correct,” he responded, when asked if
Escobedo had said, “All they’re [Phillips and Florian] going to
do is get you in trouble.” Then, however, Rolfe volunteered
that Escobedo had said, “Don’t pay attention to Phillips and
Florian,” and agreed that Escobedo had advanced a “slightly
different” opinion, of whether holidays were included in calcu-
lating probationary periods, than had Phillips and Florian.
“That’s correct,” agreed Rolfe, Escobedo had been saying to
talk to Respondent-Union’s representatives, rather than to those
guys. On its face, such a statement does not show some sort of
advice or admonition unique or confined to Phillips or Florian.
So far as it goes, Rolfe’s testimony, as it concluded after modi-
fication, shows no more than that Escobedo had been saying
that a relatively new employee should speak with union offi-
cials, not coworkers, about how the contract’s provisions ap-
plied.
There is no evidence that Escobedo’s advice or admonition
would have been any different had Rolfe said that he had spo-
ken with employees Smith or Jones. To the contrary, Rolfe’s
own eventual testimony seemed to confirm such a conclusion.
For, as cross-examination concerning the conversation with
Escobedo neared conclusion, Rolfe testified, “he told me to stay
away from other people in the plant.” (Emphasis added.)
Also not to be overlooked is one other aspect of Rolfe’s tes-
timony about his foregoing asserted conversation with Esco-
bedo. During cross-examination about what Escobedo had
said, Rolfe abruptly volunteered, “He [Escobedo] gave me the
wrong advice.” No question that Rolfe was claiming that he
had been given the wrong advice by Escobedo. “It was the
wrong advice,” repeated Rolfe. Yet, Rolfe never explained
what he meant by that assertion. Moreover, it is difficult to
understand how Escobedo could have given wrong advice
about the subject of holidays being included in calculating pas-
sage of probationary periods. After all, that’s a pretty straight-
forward, narrow subject. To be sure, Escobedo gave Rolfe a
somewhat different answer than had Phillips and Florian. Yet,
Rolfe never explained exactly how Escobedo’s answer had
been “wrong.” So far as the record shows, the only plausible
purpose for advancing such a generalized accusation would be
to portray Escobedo—and, derivatively, Respondent-Union—in
as unfavorable a light as possible, given the above-mentioned
internal contradictions in Rolfe’s testimony about a supposed
November, or whatever, conversation with Escobedo.
There was a second area in which Rolfe made an effort to
portray Escobedo’s hostility toward Florian and, in this in-
stance, Focht. As set forth above, the collective-bargaining
contract’s article IX provides a 60-day probationary period,
which may be extended for another 30 days. Rolfe had begun
working for Respondent-Employer on October 15, 1997. Thus,
his 60-day probationary period should have concluded in mid-
December of 1997.
It seems undisputed that Respondent-Employer extended
probationary periods of some employees during December,
before their 60-days of employment had passed. Rolfe was not
one of those employees. Later, after Rolfe’s 60-day period of
employment had passed, Mahoney brought an extension of
probation notice to Rolfe who, in turn, took it to Escobedo. He
and Escobedo went to Mahoney’s office where, after verifying
the number of days worked by Rolfe, testified Rolfe, Mahoney
“said you’re in the Union, go on back to work,” or that Rolfe
had “completed my probation. There will be no probation,”
and, “You are a member of the Union,” or, “You are a member
of the company now.” Surely, it cannot be contended with any
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1172
persuasion that Respondent-Union, specifically Escobedo, had
not assisted Rolfe ensure that he ceased to be a probationary
employee, given the acknowledged trip to Mahoney by Esco-
bedo. By the time of this hearing, however, Rolfe was seeking
remedial, possibly monetary, relief from Respondent-Union.
So he attempted to attribute adverse remarks to Escobedo.
According to Rolfe, later that day, as he and Florian were to-
gether, Escobedo “came up to me and he said, I want, you bet-
ter keep your f—king mouth shut about being in the Union
because my guys were all extended and I don’t want this get-
ting back to them. He left.” “No,” Rolfe answered, when
asked if he had said anything to Escobedo. Of course, all that
account shows is that Escobedo wanted to avoid friction in the
unit, arising from other employees’ reaction to Respondent-
Employer’s failure to give timely notice of extension of Rolfe’s
probationary period.
Rolfe contradicted his above-quoted denial, however, when
asked later during direct examination if Escobedo had said
anything else:

He said I guess it paid to know Mr. Focht and Chester.
That’s why you snuck by the Union. I said that’s not so. I
worked all kinds of overtime to get those days in. I
worked a lot of hours to get my probationary period in. I
never had any problems.
I said that had nothing to do with knowing Mr. Focht
or Chester. He didn’t really want to hear that. He walked
away.

Obviously, by that testimony, Rolfe was attempting both to
portray some sort of knowledge by Escobedo that Rolfe en-
joyed a special relationship with Florian and Focht and, in addi-
tion, that Escobedo was antagonistic toward Rolfe because of
the latter’s special relationship with Florian and Focht.
For his part, Escobedo testified that the situation had been a
little different than Rolfe’s above-described testimony showed.
According to Escobedo, other probationary employees had
received extension notices, but Rolfe had not. Rolfe mentioned
that to Escobedo and the latter said “just keep quiet, don’t say
nothing, they probably forgot about it[,] don’t worry about it,”
Escobedo testified. Then, testified Escobedo, Rolfe returned
about 15 minutes later, saying that he had spoken to Focht,
about not have received a notice of extended probation, and
Focht had said he was not going to extend Rolfe’s probation
because Rolfe was “a good worker.” Escobedo testified that he
said, “okay, forget about it. If he’s not going to extend it, don’t
worry about it,” or, “don’t say nothing. Let it go, don’t worry
about it.”
On the following Monday, according to Escobedo, Mahoney
brought a 30-day extension notice to Rolfe who, then, reported
that fact to Escobedo. Escobedo testified that he admonished
Rolfe, “didn’t I tell you to be quiet?” and went to Mahoney
who, after checking records, tore up Rolfe’s extension notice.
Afterward, Escobedo testified that he cautioned Rolfe, “now,
keep it quiet because these other guys are going to be mad be-
cause they got extended and their [sic] not going to get a raise,”
or, “keep it down because he got a raise and the other guys
might get made [sic] because he got extended.” As with
Rolfe’s initial description of the incident, Escobedo’s testimony
demonstrates willingness to help Rolfe.
With regard to the above-quoted addition to Rolfe’s account,
added later during examination, Escobedo denied expressly
having told Rolfe that he had gotten his probation as a result of
being friends with Florian and Focht. Certainly, as an objective
matter, that denial seems more credible than Rolfe’s addition to
his description of what Escobedo supposedly had said. In the
first place, as mentioned above, Rolfe claimed that Florian had
been present during the December 1997 Rolfe-Escobedo con-
versation about the extension. However, Florian never testified
that he had even been present during such a conversation be-
tween Rolfe and Escobedo concerning Rolfe’s probationary
period. Nor did Florian corroborate Rolfe’s added account
about Escobedo having said, in effect, that Rolfe had avoided
extension of his probationary period because Rolfe knew Focht
and Florian. Surely, had he been present during such a conver-
sation, when his own name was mentioned, Florian would have
remembered and recounted what had been said.
Beyond that, such an assertion by Escobedo would simply
have been absurd, on its face, given the circumstances leading
to cancellation of the probationary-extension notice. Under
either the account of Rolfe or that of Escobedo, the latter obvi-
ously knew that neither Florian nor Focht had anything whatso-
ever to do with rescission of the extended-probationary notice.
Escobedo obviously knew also that the notice had been re-
scinded because it had been issued belatedly, after Rolfe’s pro-
bationary period had already been completed. After all, Esco-
bedo had been a participant in the conversation when Mahoney
rescinded the notice given to Rolfe. Against that background,
Escobedo would have had to be some sort of loon to be saying
that the notice would not have been rescinded had Rolfe not
known Focht and Florian. Lest there be any doubt, as he testi-
fied Escobedo did not appear to be any kind of loon.
Turning back to Rolfe’s workers compensation claim, he tes-
tified that, during May, his doctor “just gave me light duty,”
while Rolfe was “[w]aiting for an operation.” There is no evi-
dence that any operation would involve Rolfe’s cut arm; so far
as the evidence shows it would pertain only to his carpal tunnel
syndrome. There seems no dispute about the fact that Respon-
dent-Employer had allowed other employees to work light duty
in the past. Rolfe identified several. Yet, Rolfe was never
recalled from layoff by Respondent-Employer to perform any
light duty work. Of course, there is no allegation that Respon-
dent-Employer had violated the Act by having failed to do so.
Nor is there an allegation that Respondent-Union had violated
the Act by somehow attempting to cause Respondent-Employer
to deny light duty work to Rolfe. Nevertheless, at some points
as he testified, Rolfe appeared to be trying to portray Respon-
dent-Employer as having improperly deprived him of light duty
work during the spring and summer. In the end, that effort
would founder on Rolfe’s own description of what he had been
told by Mahoney.
Despite Respondent-Employer’s past willingness to allow
employees to work light duty, Rolfe acknowledged that when
he had spoken to Mahoney about doing so, after having been
released by the doctor to perform such work, Mahoney had
“said there was no such work.” “Yes,” conceded Rolfe, he had
PRECOAT METALS 1173
been told that Mahoney needed a full-time employee. There is
no evidence whatsoever of a change in that situation at Re-
spondent-Employer’s Chicago plant after May.
In fact, Rolfe further acknowledged that he had been sched-
uled for surgery during June. But, he testified, that surgery had
been canceled as a result of Respondent-Employer’s challenge
to the surgery’s coverage under workers compensation. Again,
there is no allegation that either Respondent had acted unlaw-
fully under the Act in connection with cancellation of Rolfe’s
June surgery. That is, there is no evidence that Rolfe had been
engaged in any activity protected by the Act prior to the sur-
gery’s cancellation and, while he made efforts to align himself
with Florian, there is no evidence that any such association with
Florian had occasioned Respondent-Employer’s decision to
challenge the workers compensation claim, nor, even, that any
official of Respondent-Employer was aware of some sort of
alignment between Rolfe and Florian during or before June. In
fact, there is no evidence which would support a conclusion
that Respondent-Employer had somehow concluded for an
unlawful or otherwise improper reason that Rolfe’s brief period
of work for it had not truly occasioned his bilateral carpal tun-
nel syndrome.
To the contrary, Rolfe acknowledged that, when he asked
Abbott about the canceled June surgery, she had told him,
“Well, we’re not following this as a Workman’s Comp claim.
You have to get a release now from Workman’s Comp,” and “a
letter stating that this will now be an insurance claim rather
than a Workman’s Comp claim . . . to have this operation
schedule[d].” Abbott thought this would “only take three
days,” but Rolfe was unable to have his first surgical operation
until the following October. Not until the following December
31 was he released for full-time duty. By then, his contractual
recall rights had expired. The point, however, is that while
Respondent-Employer was not willing to have the surgery cov-
ered by workers compensation, it seemed willing to allow it to
be covered by a different type of insurance. And there is no
allegation that that decision had violated the Act.
By June another sequence of events had run its course—one
which led to Focht’s loss of his Chicago production manager’s
authority, though not the title. This really should have been
completely a background issue, of no major significance.
There is no room whatsoever for disputing that loss of author-
ity. By memorandum dated May 20, Drufke notified all em-
ployees that, inter alia, “Jack Focht will not be at work this
week because of medical reason. I have appointed Dan Ma-
honey as Acting Production Manager during this time,” and,
further, “This appointment may continue past Jack’s return
depending on our training needs in appointing a new Product
Quality Manager. Displaying what seemed to be an ongoing
tendency to testify in other than a candid manner, Focht at one
point denied that he had been absent from work due to a medi-
cal problem—thereby contradicting Drufke’s above-quoted
memorandum—only to later concede that he had missed at least
a week’s work during early 1998 due to a medical problem.
There also is no room for disputing that, by memorandum
dated May 26 Drufke gave added notice to all employees of
“several organizational changes,” among which were:

Lisa Karpiel has been appointed Technical Service
Manager to help us better identify and reduce our external
rejections. Lisa will also play a key role in our new prod-
uct development efforts by coordinating our trial orders.
Ernie Javier will replace Lisa as Product Quality
Manager. Ernie will be responsible for our Wet Section,
our Laboratory and our Physical Testing.
. . . .
Jack Focht continues as Production Manager. How-
ever, Jack will devote his entire time and experience in
helping Lisa and Ernie in their new duties. This will allow
me the time to work with Maintenance and our Production
Department.
Our Production Department, including our foremen,
will now report to Dan Mahoney who in turn will report to
me.

As even Focht acknowledged, he was no longer supervising
any Chicago employees. Moreover, both memoranda had is-
sued over 3 months before Focht gave his August 31 affidavit
to the Regional Office and, beyond that, well before even the
first unfair labor practice was alleged to have been committed
by Respondents. For whatever reason, however, an effort was
made to litigate the propriety of Focht’s loss of supervisory
status. In the end, all that was accomplished by so doing was to
further illustrate Focht’s unreliability.
As mentioned in subsection A above, Respondent-Employer
is not a party to any government contracts, but Sequa is party to
such contracts. Because of its relationship to Sequa, conse-
quently, Respondent-Employer’s hiring practices are subject to
periodic audit by the Department of Labor’s Employment Stan-
dards Administration Office of Federal Contract Compliance
Programs, herein OFCCP. One such audit was conducted at
Respondent-Employer’s plants during the first part of 1998.
On April 2318 two auditors arrived at the Chicago plant. Three
of Respondent-Employer’s officials were involved in the audit
conducted: Director of Equal Employment Opportunity and
Business Ethics Richard Delk, Director of Human Resources
John Christopher and then-Production Manager Focht.
One aspect of the audit is known as a “walk around.” A rep-
resentative of the employer shows the auditors around the facil-
ity being audited. Of the three above-named officials, Focht
was most knowledgeable about, and familiar with, the Chicago
plant and its operations. So, he walked around with the audi-
tors. Delk and Christopher accompanied them but, Christopher
testified, he and Delk “generally laid back and watched to see
what the postings looked like.” As a result, Delk and Christo-

18 The date is taken from “EXHIBIT A,” paragraphs 7 through 9 of
OFCCP’s predetermination notice to Respondent-Employer, dated May
19. It may come as somewhat of a shock to some people that state-
ments in this government document, to the extent that it sets out “mat-
ters observed” by the auditors during their investigation and “factual
findings resulting from [their] investigation,” are “not excluded by the
hearsay rule, even though the [auditors might have been] available as [
] witness[es].” Fed.R.Evid. Rule 803, preamble and subdivision (8)(B)
and (c). As pointed out in the Advisory Committee’s Note for that
subdivision, there is an “assumption that a public official will perform
his duty properly” which, in part, underlies the reliability of statements
about matters observed and the factual findings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1174
pher did not overhear all comments being exchanged between
Focht and the auditors.
Following the walk around, the auditors began individual in-
terviews of employees and management personnel, in the Chi-
cago plant’s meeting room. Delk was not involved in that
process. Christopher was permitted to sit-in when management
personnel were interviewed, though not when nonsupervisory
hourly-rated employees were being interviewed. Thus, Chris-
topher was present when Focht was interviewed.
Christopher testified that there had been nothing particularly
unusual when the interview began with Focht. Then, testified
Christopher, the auditors began to ask about specific female
applicants who had not been hired since Focht had become
production manager in early 1997. No question that Focht had
been occupying that position, and had conducted the second
interview—after Abbott had conducted a preliminary screening
interview—of Maurita Gill, Charlene Johnson, and Sheila
Schmidt during the fall of 1997. And no question that Focht
had been the official who had made the decisions not to offer
employment to any one of them.
Christopher further testified that, as to one of those three ap-
plicants, Focht told the auditors that “he didn’t hire her or
didn’t even interview her because she had a brother who
worked there and he was having trouble with the gentleman and
he didn’t think it was wise to hire her.” In fact, Exhibit A of
OFCCP’s May 19 predetermination notice states that Schmidt
had applied on October 21, 1997, but that her application had
been rejected because “the Production Manager said that ‘he
was having problems with her brother, who was also employed
there at the time.’”
With respect to another of those applicants, Christopher testi-
fied that Focht had told the auditors that “he did not hire her
because she had a good job and didn’t want to take a chance of
her getting laid off.” In fact, OFCCP’s Exhibit A states that
Johnson, who had applied on October 16, 1997, had been re-
jected because “the Production Manager said that ‘he had a gut
feeling that the 4th shift wouldn’t last long and she would be
wasting her time.’” Of course, as described above in this sub-
section, the fourth shift had been discontinued—but not until
March 1998, approximately 5 months after Johnson had ap-
plied. Furthermore, according to the Exhibit, at the time of her
application Johnson had “5.5 years experience as a Machine
Operator, Truck Loader and Certified Fork Lift Crane Opera-
tor,” the type of work which, it is unrefuted, Respondent-
Employer has available in the Chicago plant.
As to the third female applicant, Christopher testified that
Focht had told the auditors that she had been “simply not quali-
fied for the job.” OFCCP’s Exhibit A recites with respect to
Gill, who had applied on September 30, 1997, “the Production
Manager said that ‘he felt her experience was mostly office and
not related to the job.’” Yet, according to that portion of the
Exhibit, at the time she applied with Respondent-Employer Gill
possessed “1 year experience as a Construction Foreman, as
well as an unspecified amount experience in Carpentry and
Repair.”
Christopher further testified that the auditors had asked
Focht what he looked for when hiring and Focht told them “that
he asks about marital status,” later saying that “he has hired
some men in the past that have big families and needed the
money.” In fact, on page 3 of the May 19 predetermination
notice appears the statement, “The Production Manager con-
ducts the second interview whereby basic qualifications, ex-
perience, personality, marital status, family and need for a job
is considered.” While Respondent-Employer contended that it
“chose most qualified candidates” to justify its rejection of “all
Females,” the Notice continues, the specific reasons advanced
during “interview with the Production Manager” further “illus-
trat[ed] the Disparate Treatment accorded Females.”
“They don’t usually ask specific questions about individu-
als,” Christopher testified, and so he asked the auditors,
“there’s obviously something going on here. What is it?” One
of the auditors replied, according to Christopher, that “during
the walk around Jack told us he didn’t hire women because they
didn’t work out in the plant,” and the other auditor “made a
comment about it as well.” Indeed, page 3 of the notice further
states, in pertinent part, “the Production Manager admitted that
no females were interviewed given past experience with female
Operations Support staff,” even though, “the Production Man-
ager admitted that [Respondent-Employer] offers an excellent
training program that allows him to make exceptions for those
applicants lacking in experience.”
Having heard what the auditors were saying, and having lis-
tened to their questions, Christopher testified that he knew Re-
spondent-Employer was in trouble. He immediately reported
what Focht had said to Delk and to Kramer. Delk testified that
he felt Focht should be fired immediately. Kramer testified that
his reaction had been “to remove Jack from the Chicago loca-
tion and possibly [from] the company.” But, even though
Christopher had overheard some of Focht’s remarks to the audi-
tors, Kramer acknowledged that Drufke—ever faithful to
Focht—questioned whether Focht had made at least some of
those statements. Of course, at that stage it was late April and
Respondent-Employer had not yet received OFCCP’s prede-
termination notice.
Both Christopher and Kramer testified that the former had
advised the latter to hold off before taking any action concern-
ing Focht. Christopher testified that “the problem with it is,
with the investigation ongoing, . . . we didn’t want to take any
hasty actions until we knew exactly what we were up against.”
Kramer testified that Christopher had voiced “two reasons.
One was at the time in April time frame we didn’t have a final
report on the audit, nothing in writing. So it was a—at that
point in time we had nothing but verbal reports.”
Beyond that, testified Kramer, “there was some question in
my mind,” based upon conversations during which Drufke had
voiced his above-mentioned doubt, “whether Jack actually
made some of the statements that were supposedly made by
him,” particularly the ones not overheard by Christopher. Yet,
Focht was not helping himself. Christopher acknowledged that
Focht had denied the statements attributed by the auditors to
him during the walk-around. Still, the reliability of those deni-
als for Respondent-Employer’s officials was diminished by the
fact that Focht “also denied the statements that I heard him”
make, testified Christopher. Nevertheless, Christopher cau-
tioned, according to Kramer, “Look, I’m sure they were made
but there will be a final report that comes out that should re-
PRECOAT METALS 1175
move all doubt,” and, in any event, “in answering some of the
audit items we’ll need to possibly have Jack’s help.” To ignore
the legitimacy of that latter possibility would be “to promote
the Ostrich over the farther-seeing species, Partington v. Bray-
hill Furniture Industries, 999 F.2d 269, 271 (7th Cir. 1993),
since removing Focht might leave Respondent-Employer, at
least, without a particularly sympathetic witness, should more
information be needed from him once OFCCP issued its written
determination. At worst, it might leave Respondent-Employer
with a former official willing to tailor his subsequent accounts
to injure Respondent-Employer even further as, in fact, has
occurred during this proceeding.
Any suggestion that Focht was some type of whistle-blower
in connection with OFCCP’s investigation would be a ridicu-
lous one. He hardly had been reporting to a government
agency misconduct by other officials of Respondent-Employer.
Instead, he had admitted his own unlawful hiring practices. To
regard him as some type of protected whistle-blower, for hav-
ing done so, would be tantamount to regarding an embezzling
employee as a whistle-blower, entitled to some sort of statutory
protection, for have given a written statement about his embez-
zlement to the police. Nowhere does the law protect an em-
ployee against discipline by his employer for unlawful conduct,
which that employee chooses to confess to a government
agency.
The predetermination notice is dated May 19. On May 20
Drufke issued his above-described May 20 memorandum, ap-
pointing Mahoney as acting production manager. On May 26
Drufke issued the above-quoted memorandum effectively re-
moving Focht as supervisor of production employees and their
foremen. There can be no question that the effect of those
memoranda had been to remove Focht as a supervisor over
Chicago operations—indeed, to remove him altogether as a
supervisor. “I was replaced as production manager,” testified
Focht, and left “in limbo.”
Even so, Focht remained at Respondent-Employer’s Chicago
facility. As to that Kramer testified that, upon receipt of the
predetermination notice, he had wanted to take the action which
he earlier had contemplated taking: terminating or, at least,
transferring Focht to the Jackson, Mississippi facility. How-
ever, according to Kramer, Christopher “advised me to wait,”
because “this was not final findings[,] this was a preliminary
document with some findings but they were still subject to
answers by the company and this was not the final document.”
Christopher agreed that he had explained to Kramer that the
predetermination notice “was [a] preliminary finding . . . and
that Mr. Delk and I would be making an appearance with them
[OFCCP], and we needed to sit tight on the situation until we
knew exactly what we had.” Accepting that advise, Kramer
testified that he made the decision to allow Focht to remain at
the Chicago plant.
Cross-examiners displayed a certain amount of cynicism
about that explanation. Yet, that the predetermination notice
did not constitute a final determination is shown by some of its
wording: “The purpose of the Notice is to set forth facts which,
if not adequately rebutted, would establish that discrimination
occurred.” “If an adequate rebuttal is not received a final de-
termination that discrimination occurred will be issued.”
“Please respond to this letter within fifteen (15) calendar days if
you wish to rebut any or all of the preliminary findings.” “If
your do not respond, the preliminary findings made in this Pre-
determination notice will be incorporated into a Notice of Vio-
lations which will be sent to you by certified mail, return re-
ceipt requested.” Surely, OFCCP could not more clearly have
stated the preliminary nature of its position as of May 19. Ob-
viously, Focht could still have been a resource-person either in
support of Respondent-Employer’s position with OFCCP or,
more ominously, someone who might want to make a bad situa-
tion worse for Respondent-Employer, were it to remove him
from the Chicago plant by termination or transfer.
Not a great deal of particularized evidence has been pre-
sented regarding Respondent-Employer’s dealings with OFCCP
after May 19. Kramer testified that he had no knowledge about
whatever had happened, aside from “general knowledge there
were actions going on that led me to believe there should have
been a rebuttal or answer submitted but I don’t ever remember
actually seeing those.” Christopher testified that no rebuttal
was ever submitted by Respondent-Employer concerning the
statements attributed to Focht in the predetermination notice:
“Because I sat there and listened to what Jack had to say and I
would look like a fool going in trying to rebut information that
they and I heard at the same time.” The notice covered addi-
tional violations, however, beyond those pertaining to Focht’s
hiring. Of course, contrary to the implication of prolonged
cross-examination, the fact that there were other violations does
not somehow erase the fact that OFCCP had determined that
Focht had engaged in unlawful hiring procedures. In fact, those
were the violations for which Respondent-Employer would
have to pay backpay to three of the four female applicants who
had not been hired. It is an interesting question whether
OFCCP would have made any determination that Respondent-
Employer had unlawfully failed to hire female applicants, had it
not been for statements its auditors had heard from Focht.
In any event, there is some evidence that Respondent-
Employer’s officials did meet with those of OFCCP after May
19. “We had a meeting with the representatives of the Depart-
ment of Labor where we discussed the situation and the liability
we had with them,” testified Christopher, ascertaining in the
process, “what they were going to seek as remedies.” Perhaps,
as seemingly suggested by cross-examination, Respondent-
Employer could have more-stridently contested the findings in
the predetermination notice. But, Christopher’s above-quoted
explanation, for not challenging the statements attributed to
Focht, seems logical and, given what he had heard, hardly can
be faulted. Challenging a government agency’s procedures can
sometimes be a perilous course, resulting in even more adverse
consequences, as perhaps illustrated by the description during
the beginning of the tenth day of hearing in the instant case of
what had occurred after the hearing had concluded the preced-
ing evening. In any event, some exchange had been occurring.
OFCCP had given Respondent-Employer 15 calendar days to
respond to its May 19 predetermination notice or that notice
would “be incorporated into a Notice of Violations,” as quoted
above. That did not then occur. OFCCP did not complete its
“review” until August 7, according to the letter of its district
director.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1176
In sum, well before Florian had been suspended and filed his
unfair labor practice charges, and well before Focht had given
an affidavit in support of Florian’s charges, Focht had been
replaced, in fact though not in title, as production manager at
Chicago. There is no evidence of any activity by Focht that
would supply some type of nexus between Focht’s May re-
placement and any activity protected by the Act. To the con-
trary, the only nexus shown is between his replacement and the
predetermination notice. But, it should not be overlooked that,
by replacing Focht as Chicago production manager and by re-
lieving Focht of his supervisory authority, Respondent-
Employer had reduced his status to that of employee within the
meaning of Section 2(3) of the Act.
E. Arrival of Jim Boyle Jr. and Robert Moore at the
Chicago Plant
Mahoney did not remain long in charge of Chicago produc-
tion after May 26. As set forth near the end of the immediately
preceding subsection, Drufke did not believe that Focht had
made the statements to OFCCP which Christopher attributed to
Focht. However, Drufke testified that he realized that there
were problems at the Chicago plant. “We had both quality and
productivity problems in Chicago,” testified Drufke. White
was more blunt about the situation at that plant. He testified
that “the place was a wreck,” pointing out that the plant “was
filled with machinery. Docks were filled with arbors and
equipment that has been so old that it needed to be tossed.”
Such testimony is hardly a sterling tribute to Focht’s supervi-
sion of Chicago operations, while production manager prior to
May 20. On the other hand, neither is it a tribute to Drufke’s
performance, given that the Chicago plant was one of the two
plants for which he served as regional manager.
“Yes,” Drufke answered, when asked if he had requested
help at the Chicago facility from Jim Boyle Jr., then working at
Respondent-Employer’s Portage plant. Drufke further testified,
“Jim has a lot of experience in—in coating. He’s as good in—
coating as anyone I know. We definitely needed help in Chi-
cago and I asked him to come to Chicago.” As will be seen in
following subsections, Drufke appeared to have become some-
what disenchanted with some aspects of Boyle’s performance
by early August. At this point, however, some notice must be
taken of Boyle’s background. For, it seems uncontested that,
by spring of 1998, Boyle had a demonstrated record of straight-
ening out poorly performing plants.
As pointed out in subsection A above, the Northgate plant in
Granite City had been opened because of Respondent-
Employer’s problems at its St. Louis plant. Boyle had started
in the Northgate plant on August 13, 1982, as an operations
support employee. According to Boyle, excellence in perform-
ance had been demanded at that plant. “Very structured. Very
disciplined. Everyone was well trained. Work rules were
strictly enforced” there, he testified. Thus, testified Boyle,
“that’s the environment I grew up in.”
Boyle worked at Granite City until January of 1988, he testi-
fied, when he was offered a production foreman’s position at
Respondent-Employer’s Houston facility, then paired with the
Chicago facility as Lithostrip, a point made in subsection A
above. At that time, according to Boyle, conditions at the
Houston facility were “very poor.” In mid-1990, he was of-
fered the position of production manager for that facility, the
same position as Focht would occupy at Chicago from early
1997 until May of 1998. By mid-1990, Boyle testified, condi-
tions at Houston “had improved, but it was still in poor condi-
tion.” “Basically at Houston there was no structure, no disci-
pline,” explained Boyle, “The productivity was 40 [percent]
below probably the Granite City facility. Quality was in very
bad shape. And no enforcement of the work rules.”
“I remained in Houston, Texas as production manager until
1991,” Boyle testified, during which time he had improved the
work environment and performance at that plant. “Basically
what I did was I adopted what I had learned in Granite City,”
he testified. That is, “I tried to create a disciplined, structured
work environment,” testified Boyle, “through work rules and
extensive training of the hourly employees.” By the time that
he left Houston in 1991, according to Boyle, the facility there
“month to month was either first or second in the Company.”
Indeed, it appears to have been Boyle’s performance at
Houston which led Respondent-Employer to offer him the posi-
tion of advisor at Lithostrip’s other plant, the one in Chicago.
According to Boyle, that occurred because “there were prob-
lems [at Chicago] that were almost identical to [those formerly
existing at] Houston,” and Boyle was being asked to “do in
Chicago what I had done in Houston.” Boyle testified that his
“brother recently had been killed in an auto accident,” and he
desired to get out of Houston. But, not permanently. He did
not move his family from Houston.
When he arrived at Chicago, testified Boyle, “I observed ini-
tially a close comparison between Chicago and Houston. There
was no structure, discipline. The quality and productivity were
poor and low. Work rules weren’t being enforced,” and, for
example, “[a]ttendance was a big issue.” After serving as advi-
sor for approximately “45 days,” Boyle testified, “I became
acting production manager,” in “probably early, mid June” of
1991. “I tried to put structure in the facility,” he testified, “I
enforced all the rules. I was real big on documentation. And
teaching the hourly employees the fundamentals of operating
the various pieces of equipment.” Boyle left Chicago during
October 1991, after his advisor/acting production manager stint
there had resulted in the Chicago facility being “in the black for
the year,” he testified. He wanted “to go back to Houston and
be with [his] family,” Boyle testified, and Respondent-
Employer offered him the job of plant manager there.
Boyle occupied that position until mid-1996 when he ac-
cepted an offer from another firm to become general manager,
at a “substantially higher” salary, at its Arkansas facility. “The
condition of that facility was probably at that time [when he
arrived there] the worst I’d been to,” according to Boyle. After
working there almost a year, Boyle testified that he had been
contacted by Respondent-Employer which offered him the
position “running the Portidge [sic] facility,” on terms better
that those which he had been enjoying as plant manager when
at Houston. Boyle accepted that offer.
He began at the Portage plant during May of 1997. At that
time, testified Boyle, that plant was in last place among Re-
spondent-Employer’s seven plants: “It was totally unorgan-
ized. There was no structure, no discipline. The work rules
PRECOAT METALS 1177
were not uniformly enforced.” As to what measures were taken
by him at Portage, Boyle testified, “Basically I tried to institute
the structure and discipline and give everybody, all the man-
agement people there and hourly employees my philosophy,
which I’d adopted from Granite City on how to run a business.”
That “philosophy” was based on “[s]tructure, organization,
discipline, documentation,” according to Boyle, “And I com-
manded excellence.” Following that philosophy, Boyle testi-
fied that he turned around operations at Portage: “Portidge [sic]
is now number two facility in [Respondent-Employer] in terms
of productivity.”
Boyle’s employment history shows two things that are of
significance to the issues presented in this proceeding. First, it
made him a logical choice to correct what Drufke described as
the “quality and productivity problems in Chicago.” Secondly,
by the time that he arrived in Chicago, Boyle had a firm belief
in observance of work rules, as one means to improve opera-
tions at plants which had been performing poorly.
Boyle’s arrival at Chicago also ended Mahoney’s tenure as
acting production manager. Robert Moore was selected by
Boyle to occupy that position. Moore had worked with Boyle
in Houston prior to mid-1996. After Boyle became employed
in Arkansas, he hired Moore to work for that firm. When
Boyle was reemployed by Respondent-Employer at Portage,
Moore was hired to work there, also. Boyle testified that he
brought Moore from Portage to Chicago, “because I wanted
somebody there that could help institute my philosophy of do-
ing business until I’d had a chance to evaluate all the supervi-
sors and managers that were at that facility.” In effect, Moore
would be serving as second in command at Chicago, at least
until Boyle could familiarize himself with operations there and,
then, implement procedures for improving those operations.
Before arriving in Chicago Moore had not known Damron.
Of course, Boyle and Damron were familiar with each other.
As pointed out in subsections A and B above, Damron had been
president of Local 7045 before its merger into Local 3911 and
its concomitant designation as Respondent-Union. In conse-
quence, Damron had been serving as union president in Chi-
cago when Boyle had served as advisor/acting production man-
ager there during 1991. Considerable effort was made to prove
that there was some sort of alignment between Damron and
Boyle, as a means of urging that the latter had done the for-
mer’s bidding in suspending and discharging Florian. In the
end, that effort amounted to nothing. At this point it should be
noted that there is simply no evidence that would support a
conclusion that any type of special or close relationship had
developed between Damron and Boyle during 1991. Neverthe-
less, attention should be paid to evidence, supplied mostly by
Phillips, of some sort of list or lists of employees that Damron
and/or Boyle was out to get.
Boyle and Damron each denied having possessed such a list.
At this stage, the significant account by Phillips is of a conver-
sation with Grievance Committeeman John Robinson during
June, as the two men were at the lower coater segment of Re-
spondent-Employer’s Chicago production line. During direct
examination, Phillips testified that Robinson “pulled me aside
and he warned me, he said to be careful. He said you better
watch yourself because I heard there’s a list out. Your buddy’s
got a list and you[r] name’s on it. And he’s out to get you.”
“Your buddy is how John Robinson and I refer to Rich Damron
because at one time we were buddies,” claimed Phillips.
“Yes,” he answered, when asked if Robinson had made refer-
ence to Damron as “your buddy” in the past. Like other aspects
of Phillips’s testimony, however, this one began to unravel
during cross-examination and, in the end, is left in tatters when
compared to testimony given by Robinson.
Phillips was confronted during cross-examination with his
prehearing affidavit. In it, the following account of his conver-
sation with Robinson is recited as, “Around June 1998, Robin-
son told me that Rich Damron had a list and that I needed to be
careful because they were out to get me. Robinson did not
expand on this.” No reference appears in that affidavit to any
remark about “your buddy,” Phillips conceded. As described
below, Robinson testified that he had used that phrase to refer
to Damron, when speaking with Phillips. But, the circum-
stances of such reference, as described by Robinson, were con-
siderably different than the context of a purported warning
about Damron being “out to get” Phillips. The fact is that Phil-
lips, who presumably had access to his affidavit before he had
testified, never bothered to explain why he had attributed that
phrase, when testifying, to Robinson during their June conver-
sation. Moreover, even after conceding that “your buddy” did
not appear in the affidavit, Phillips would later repeat that Rob-
inson had said “your buddy” on that June day. “No, he did not”
mention Damron’s name, Phillips ended up testifying. Yet, if
Robinson had not mentioned Damron’s name, and had not said
“your buddy,” as the affidavit shows, then a question naturally
arises as to how Phillips would have known that Robinson had
been referring to Damron during their June conversation.
His story became even more contradictory as cross-
examination progressed. Asked if he ever had “a conversation
with anyone in the plant about a list?” (emphasis added), Phil-
lips answered, “Yes, that was in my testimony earlier, I be-
lieve.” Then asked, “Who did you talk to about a list?” (em-
phasis added), Phillips responded, “John Robinson and Ed
Morales.” The latter’s purported remarks to Phillips are de-
scribed in subsection L below. Phillips denied specifically that
a list had ever been mentioned to him by Focht. Cross-
examination progressed to other topics. Later, however, it re-
turned to that subject of a list.
“Well, at one time I did talk to Chester” about a list, Phillips
testified at that later point, when asked if Florian had ever men-
tioned a list to him (Phillips). “After Robinson had warned
me,” testified Phillips, such a conversation with Florian had
occurred. “No, no, it’s not in my affidavit,” he acknowledged.
Still, Phillips proceeded to testify, “I had mentioned to Chester
that Robinson had warned me that I was on a list.” “I just told
him that Robinson warned me,” Phillips testified thereafter.
Florian never corroborated that testimony. To be sure, that
might not be particularly surprising, given that any testimony
by Florian about such a report by Phillips would surely have
been challenged, by objection, given the course of what had
been happening over the course of the hearing, on the grounds
of hearsay and relevancy. Even so, there is one aspect of the
testimony by Phillips, concerning his asserted conversation
with Florian, which should not pass without notice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1178
According to Phillips, when he told Florian about what Rob-
inson had said, Florian replied, “Well, watch yourself. He said,
you know, if Robinson’s telling you something, Robinson ain’t
going to lie to you.” Later during cross-examination, Phillips
reaffirmed that testimony about what Florian had said about
Robinson. Now, as pointed out in subsection A above, certain
officers of each of the Respondents appeared to have at least
some interests which were at odds with the Respondent for
whom they were, or had been, officers. Robinson was one,
appearing to feel that Florian’s suspension and discharge had
been unjust and, as discussed in succeeding subsections, that
Damron had somehow failed Florian by having failed to pre-
vent that suspension and discharge. And no question that Phil-
lips and Florian believed that Robinson lined up with them in
the dispute with Respondents.
Asked if he thought Robinson had anything to do with
Florian’s discharge, Phillips answered unequivocally, “No, I do
not.” Phillips also answered in the negative when asked the
same question about White’s suspension and discharge. “Rob-
inson’s our friend. He’s the only one that we have in that plant
as far as a union issue,” asserted Phillips, “the only one that
stepped forward to defend me in any way. And to this day is
the only one who will step forward to defend me.” Maybe so.
But, for Robinson, apparently that did not extend to the point of
advancing fabricated testimony.
Robinson agreed that he had participated in a June conversa-
tion with Phillips. Phillips denied that Robinson had said, dur-
ing their lower coater June conversation, that Phillips had been
leaving his (Phillips’s) job too much: “Robinson never told me
I’m not leaving, that I’m leaving my job too much.” Yet, in
describing what he had said to Phillips during that conversa-
tion, Robinson testified, “I told him he better watch himself and
stop leaving the line so much”—thereby contradicting Phil-
lips’s above-quoted denial. Furthermore, asked if he had said
to Philips that Damron was “out to get” Phillips, as the latter
claimed that Robinson had said, Robinson answered, “No, I
don’t recall saying that.” From the tenor of that answer, it
seemed clear that Robinson was not using “recall” in the sense
of might or might not have said that. Rather, as his initial “No”
made plain, Robinson was testifying that he had not said that to
Phillips.
Robinson did acknowledge having mentioned Damron to
Phillips during their June conversation. “More or less, I did,”
acknowledged Robinson. But, he continued, “I more or less
said I know you two guys have got bad blood between each
other and more or less I was telling Tom [Phillips] certain
things Tom do[es], little things. I told him more or less that
he’ll have to cut it out.” At no point did Robinson claim that
his admonition about those “certain things” had been connected
to his (Robinson’s) remarks about “watch himself and stop
leaving the line so much. So far as Robinson’s account shows,
two separate subjects—stop leaving the line and, secondly, stop
doing things that annoy Damron—had been discussed in a sin-
gle conversation, not a horribly unusual situation in the normal
course of human affairs. Apparently, in an effort to buttress a
case against Respondent-Union, Phillips simply merged them
in his recitation of what Robinson had said.
Robinson also agreed that he had sometimes, when talking to
Phillips, referred to Damron as “your buddy.” But, Robinson
did not specifically testify that he had done so during his June
conversation with Phillips; as Phillips had done in his affidavit,
Robinson gave no testimony that he had referred to Damron as
“your buddy” during his June conversation with Phillips.
Asked about the circumstances when he had used that phrase to
refer to Damron, Robinson answered, “Oh, when we’re on a
clean up we tease each other and I know Tom and Rich, they
don’t get along and sometime I tease Tom.” Asked if that an-
swer meant that he had referred to Damron as “your buddy”
when talking to Phillips, Robinson responded, “Well, I have
referred to Tom as Damron’s buddy. I could be teasing,” and,
further, that such references could have been made, “Either
way.” “Possible,” answered Robinson, as a confusing sequence
of questioning continued even further.
Apparently, the point of that questioning was to show that
Robinson possibly could have referred to Damron as “your
buddy” when speaking to Phillips during June. But, anything is
possible. The simple fact is that at no point did Robinson tes-
tify that he had used that phrase during that June day. Even had
he done so, his testimony shows that he had used the phrase
only in conjunction with advice to Phillips about not doing
“little things” to annoy Damron. For, as described above, Rob-
inson denied specifically that he had warned that Damron was
“out to get” Phillips. The only warning that Robinson testified
that he had given Phillips was to “stop leaving the line so
much.” Not only did Robinson not testify that that warning had
anything to do with Damron, but Phillips chose to deny that it
had ever been said by Robinson.
There is one further aspect to Robinson’s testimony concern-
ing his June conversation with Phillips. As must be obvious
from what has been said above, periodically throughout the
record appear references to lists and hit lists. Sometimes those
references are related to a list purportedly possessed by Dam-
ron. Other times they refer to a list supposedly possessed by
Boyle. Both men denied having possessed such a list. “No,”
Damron answered, when asked if he ever created, saw or for-
mulated a hit list. “I never had a hit list,” testified Boyle.
Damron did acknowledge that there had been “rumors on the
floor” about such a list. Robinson testified, “I guess a rumor
was out that Tom [Phillips] was on the hit list,” and, also, that
Florian was on that hit list. Moreover, Robinson testified that,
“[t]he rumor is it was Damron’s hit list,” and that the rumor
about Damron’s hit list had been circulating, “[r]ight after Jim
[Boyle] started. I guess that would probably be in June.”
Asked how he had become aware of that rumor, Robinson re-
sponded in an uncertain manner which tended to indicate that
he had not placed much reliance of the accuracy of what he had
been hearing. “You know how you’re in the washroom and
you hear people talking. That’s how I discovered it,” he an-
swered initially. Asked if somebody had talked directly to him
about such a list, Robinson answered, “No, nobody directly
talked to me,” but added, “I just, I just asked, I guess some of
the guys.” The only one “of the guys” whom Robinson was
able to identify was Glen Thomas: “I asked him, . . . ‘You
heard anything about a list, a hit list?’ He told me . . . “Where
PRECOAT METALS 1179
[have] you been?’ He said, ‘I was on the hit list.’ He said,
‘Why [do] you think I got called in the office?’”
As discussed further below, Thomas’s answer obviously re-
ferred to a list possessed by Boyle, as opposed to one possessed
by Damron. Thomas was the only one identified by Robinson
as the source of a rumor about Damron’s supposed list, even
though Robinson testified, “I guess, several times” he had heard
the rumor about such a list: “Like I say, you know, I heard. I
heard more or less you hear these rumors from the guys in the
shift change upstairs,” and, “Well, people talking.” Thomas
was never called as a witness to possibly supply firsthand
knowledge about a list or a hit list, though there was neither
evidence nor representation that Thomas was not available to
appear as a witness to supply such knowledge. Robinson ac-
knowledged that he could not do so. “I never seen no hit list,”
he testified. “I never saw a hit list” possessed by Damron, Rob-
inson later reaffirmed. Beyond that, even had Damron truly
possessed such a list, there is no evidence whatsoever that he
had ever communicated the names on it to Respondent-
Employer, particularly to Boyle.
As pointed out above, Robinson testified that Thomas had
mentioned a “hit list” which had led to his (Thomas) being
“called in the office.” It is apparent that Thomas had been re-
ferring to a “hit list” possessed by Respondent-Employer. As
described above, Boyle had denied possessing “a hit list.” But,
shorn of the pejorative adjective, it is possible that there had
been some sort of list from which Boyle had called people to
the office. After Boyle had arrived in Chicago, Robinson testi-
fied, “a whole bunch of guys that particular week, they were
called into the office for attendance problems and I guess Jim
had a, had a talk with them and I guess more or less I think
Rich Damron was in there.” (Emphasis added.) Of course,
Robinson’s account is not based on firsthand knowledge, at
least not so far as it shows. There is no such evidence concern-
ing Boyle speaking to attendance-challenged employees, nor is
there such evidence concerning Damron being present when
such “talk[s]” occurred. Even if there had been such an event,
however, that does not advance any of the complaint’s allega-
tions.
In the first place, there is no evidence that either alleged dis-
criminatee Florian or alleged discriminatee White had been
among that, “bunch of guys” called to the office by Boyle “for
attendance problems.” Nor, for that matter, is there any evi-
dence that either Phillips or Crylen—the other two would-be
candidates for unit office during 1997—had been among that
“bunch of guys.” In consequence, even if Boyle had a list, it
obviously was not one connected with the statutorily-protected
activity in which any of those four employees, and two alleged
discriminatees, had engaged.
In the second place, for employer-action to violate the Act,
there must be some nexus between that action and activity pro-
tected by Section 7 of the Act on the part of those employees
affected adversely by the employer-action— “a causal connec-
tion between an employee’s protected activities and an action
by the employer detrimental to the employee’s tenure or terms
and conditions of employment” (footnote omitted), P. W. Su-
permarkets, 269 NLRB 839, 840 (1984); see also, Taos Ski
Valley, Inc., 332 NLRB 403, 403 (2000). Surely it cannot be
contended with the least degree of persuasion that unsatisfac-
tory attendance, of itself, is some sort of statutorily-protected
activity. So, had Boyle possessed a list of attendance-
challenged employees, such a list would hardly support a con-
tention of unlawful motivation directed toward Florian and
White, neither of whom had been on any such list.
That raises a related point which sometimes seeps into the
testimony in support of the complaint’s allegations: that Boyle
had arrived in Chicago with a list, obviously different from the
above-mentioned possible poor attendance one, that had the
names on it of Florian, White, Phillips, Crylen, and other em-
ployees. Now, there is no evidence whatsoever of any commu-
nication between Respondent-Union, in general, or between
Damron, in particular, and, on the other hand, Boyle, before the
latter had arrived in Chicago. Furthermore, there is no evi-
dence showing—or, even, likely showing—that the dissidents’
failed attempt to run for unit office during 1997, nor the pros-
pect that one or more of them might run for office in 2000—
concerned Respondent-Employer in the least, much less con-
cerned Boyle. There is simply no evidence that Respondent-
Employer had anything to gain by making efforts to retain
Damron as unit chairman. To the contrary, while serving as
production manager Focht had desired to have Damron re-
placed as unit chairman, as described in subsection B above.
Beyond that, there is no evidence of any other type of union or
concerted protected activity by Florian, White, Phillips, or Cry-
len from which some sort of improper animus against one or
more of them can be inferred. Given the totality of these con-
siderations, there is no basis whatsoever for concluding that
Boyle had arrived in Chicago during 1998 with some sort of list
prepared as a basis for unlawfully discriminating against
Florian, Phillips, or Crylen.
Certainly Respondents’ interests have become aligned in this
proceeding, by virtue of some of the charges and complaint’s
allegations. Yet, as pointed out in subsection A above, the
situation as it came to exist by the time of the hearing—after
arbitration proceedings, depositions in District Court, investiga-
tions of the various charges—is not necessarily the same as the
situation which existed during mid-1998. In fact, White testi-
fied that, at that time, Boyle had said that “[h]e didn’t care
about the Union because he would do what he wanted to do and
he would fight anything if he thought he was right.” Indeed,
soon after he had arrived in Chicago, Boyle took an action cor-
responding with such an expressed attitude.
When he arrived in Chicago, Boyle testified, “There didn’t
seem to be any adherence to work rules.” In particular, he testi-
fied, employees were not remaining at their workstations, were
“sleeping on duty,” and were, “Reading newspapers. They had
televisions. They had stereos.” So, he set out to correct some
of those perceived problems, as well as some others, by repost-
ing the five pages of work rules that had been in existence and
posted in the Chicago facility. Those rules covered some of the
above-described problems about which Boyle was concerned.
For example, delaying operations and loitering were prohibited
by those rules, as was, “Sleeping while on duty.” However,
Boyle added two more prohibitions to the previously existing
rules; “No papers, magazines, crossword puzzles, etc., at the
work station,” and, secondly, “Insubordination.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1180
There can be no question that those rules had been posted.
The ones presented during the hearing bear the legend, at top
right on each page, “(Revised) June 25, 1998.” Respondent-
Union’s officers referred to those revised rules and, as will be
seen in the immediately succeeding subsection, took action to
protest what they perceived to be Boyle’s high-handed action in
having posted new rules, without having given prior notice to
Respondent-Union. In fact, Focht acknowledged that, “Jim
Boyle had changed some [rules] when he came in, I think, June
or July of 1998.”
Those revised work rules were not the first posting made by
Boyle after he had arrived in Chicago. By notice dated June
22, he reminded all Chicago employees that mere presentation
of a doctor’s excuse does not suffice to be credited with a non-
chargeable absence. Only certain medical reasons, and medi-
cally related situations, support nonchargeable absences. Ap-
parently no one contests that notice’s recitation of existing pro-
cedure and, moreover, apparently no one disputes that it had
been a procedure which was being largely ignored prior to
Boyle’s arrival in Chicago. That is, seemingly employees had
been receiving credit for nonchargeable absences whenever
they submitted a doctor’s notice and, possibly, sometimes when
they were merely saying that they had been absent to seek
medical attention. Although there is no evidence that Respon-
dent-Union had challenged Boyle’s managerial right to post the
June 22 notice, its message would give rise to some acrimony
during a July unit meeting, as discussed in subsection F below.
What Respondent-Union’s officers did become upset about
were the two newly-added work rules: no periodicals nor
crossword puzzles at work stations and express prohibition on
insubordination. “The Union became very upset,” Boyle testi-
fied. Grievance Committeeman Escobedo testified that, “we
demanded a meeting because they were supposed to inform us
before they put them [new work rules] up.” Focht confirmed
that testimony. Under the collective-bargaining contract, Boyle
“should have went [sic] to the Union to change” rules, he testi-
fied, “Because when you change a work rule, according to the
contract, you’re supposed to sit down with the Union, tell them
what you’re changing and why you want to change it, and then
the Union has a right to object to it, and possibly grieve it.”
In connection with the posting of those revised work rules,
with the two above-quoted additions to them, White testified, “I
had a discussion with Rich Damaron [sic] telling him I didn’t
think it’s right that they can just post the board because, post
the new, the new work rules because it’s in our contract, Union
contract, it states that they should be discussed with the Union
before [it’s] gone and done.” According to White, Damron
“said they didn’t” discuss those added rules with Respondent-
Union, before having posted them. However, claimed White,
Damron “said something about, well, they’re not that important
and if anybody gets hurt by it, we’ll settle it through the griev-
ance procedure.” That may have been Damron’s ultimate in-
tention—to grieve the addition of two work rules—but the re-
cord leaves no doubt that he had not just blown-off their post-
ing, as White’s testimony appears to imply.
During direct examination, Focht testified that the work rules
“were just changed and posted and then the Union seen that he
had changed them and then there was a meeting held.” No
question that Focht was testifying that Respondent-Union, par-
ticularly Damron, had become irritated at Boyle’s unilateral
addition to the work rules. For Focht testified specifically,
“when Rich came in, he got upset because they didn’t take it
through the Union committee to sit down with them on the
changes they were going to make. Then they had a meeting.”
In fact, as described in the immediately succeeding subsec-
tion, such a meeting was conducted. The fact that it occurred,
and occurred as a result of Damron’s irritation at Boyle’s addi-
tions to work rules, as described by Focht, is some evidence
that relations between Damron and Boyle had not been so close
during that summer that the latter would naturally be willing to
do the former’s bidding, as argument in support of the com-
plaint’s allegations would have it believed.
F. June–July Meetings
As set forth at the end of the immediately preceding subsec-
tion, there was a meeting between Respondents to discuss the
revised rules that had been posted. Apparently it occurred dur-
ing late June, possibly on the same day as Damron discovered
that the revised rules had been posted. Four witnesses—
Damron, Escobedo, Boyle and, to a brief extent, Moore—
testified about what had been said during that meeting. Inter-
estingly, Damron, Escobedo, and Boyle each was asked who
had been present during the meeting and each one responded
that John Robinson had been present. Of the three only Dam-
ron expressed the least certainty about Robinson having at-
tended the meeting: “I’m not a hundred percent certain, yes, I
think so.”
Seemingly Robinson was available to all parties as a witness.
In fact, he was called by the General Counsel as a witness. As
pointed out in subsections A and E above, he seemed favorably
disposed toward Florian. At no point during that appearance
for the General Counsel did Robinson deny having attended
that late June meeting, generated because revised work rules
had been posted. True, at that point—relatively early during
the General Counsel’s case-in-chief—it could be argued that
counsel for the General Counsel and counsel for Charging Par-
ties may have felt that it was premature to inquire about such a
post-revised-work-rules meeting. Yet, by the end of Respon-
dents’ cases-in-chief, those counsel were surely aware that
statements made during that meeting—as related by Escobedo,
Boyle, and Damron—had a direct bearing on the defense to
Florian’s suspension and ensuing discharge.
Robinson was not one of the witnesses called during rebuttal.
Thus, there was no testimony by him about whether or not he
had attended that late June meeting and, if he had, about what
statements may or may not have been made during that meet-
ing. Failure to call Robinson during rebuttal would not seem to
warrant application of the absent witness-adverse inference
doctrine, though some might be willing to apply that doctrine in
circumstances such as those presented here. See NLRB v. MDI
Commercial Services, 175 F.3d 621, 627–628 (8th Cir. 1999).
Even so, failure to call him as a rebuttal witness leaves uncon-
tradicted the testimony that one subject specifically discussed
during that meeting had been that of allowing or not allowing
employees to drive between the two Chicago buildings after
having punched in and before having punched out. Given Rob-
PRECOAT METALS 1181
inson’s obvious sympathy for what he appeared to regard as
unfair treatment of Florian, failure to call him to rebut such
testimony is some evidence that had he been called during re-
buttal, Robinson would not have contested those remarks de-
scribed by Escobedo, Boyle, and Damron.
Turning to what had been said during that meeting, there
seems to be no challenge to the testimony that Respondent-
Union’s officers protested posting of added rules without prior
notice to them of intention to do so; that Boyle and Moore
apologized, claiming that they had not read the collective-
bargaining contract—a response which Escobedo characterized
as “a bunch of bullshit,” hardly a phrase which shows any sort
of collaborative relationship between Respondents at that time;
that Boyle said that he intended to post even more new rules,
but backed away from posting at least one of them in the face
of Respondent-Union’s objection and opposition; that Boyle
did not back down, however, in connection with the two above-
quoted rules already added; and, that Boyle said he intended to
enforce work rules strictly and without favoritism. The testi-
mony of those witnesses was challenged during cross-
examination, however, in connection with their descriptions of
an exchange between Escobedo and Boyle regarding driving
between buildings while on the clock.
As pointed out in subsection A above, work rule 11 prohib-
its, “Leaving Company premises without permission of super-
visor during scheduled work hours.” Work rule 4 prohibits,
“Gambling or conducting gambling rackets.” Morales, who
had been unable to attend the late June meeting, testified that
“before the meeting they [Damron, Escobedo, Robinson] had
with the company regarding the rules,” he had been told by
Escobedo that, in light of Boyle’s reputation for strict enforce-
ment of work rules, Escobedo “was going to” bring up gam-
bling and driving between buildings.19 According to Morales,
Escobedo said that he intended to do that “[b]ecause we were
doing it [sic] at one time.” “We’re were [sic] also driving
around,” added Morales. Escobedo agreed that that had been
his purpose for asking about those two matters: “Yes, because I
was doing it. That’s what I was doing and I wanted to know if
that—you can get fired for that.”
Escobedo testified that, after Boyle had agreed to withdraw
the above-mentioned additional work rules that he orally an-
nounced intention to add to the already-revised work rules, “I
asked him about does he think that the 13 run pool and the
football pool is considered gambling?” According to Esco-
bedo, Boyle asked “does money exchange [sic] hands?” When

19 Examining counsel, who did not represent Respondent-Union,
confused the situation in connection with that testimony by Morales,
seeking answers about what had been said after the late June meeting,
while apparently not listening to Morales’s answers about what had
been said to him by Escobedo before that meeting. As pointed out in
subsection A, and as will be shown in another area later in this subsec-
tion, miscommunication between questioner and witness was one of
several types of problems that occurred during interrogation conducted
by all counsel during the hearing. In this instance, a review of the
entire sequence of questions and answers leaves no doubt that Morales
was trying, at least, to describe what had been said to him by Escobedo
before the latter, Damron and Robinson met with Boyle and Moore.
Escobedo answered in the affirmative, he testified that Boyle
said “then it’s gambling.”
“Then I asked him,” testified Escobedo, “is there a rule about
punching in and driving to the other building,” which led Boyle
to “look[ ] through the work rules,” after which Boyle replied,
“yes, that’s work rule 11, you can’t leave the building once
you’re on the clock,” or, “that would be breaking rule 11, be-
cause you are leaving company property.” According to Esco-
bedo, Moore interjected, “that’s something like the one in
Houston where you can’t clock in and go back to your vehicle.”
Escobedo testified that Boyle had not responded to Moore’s
remark: “That was just a statement” by Moore, requiring no
response, testified Escobedo.
Scant effort was made to obtain a full account from Moore as
to what had been said during the meeting. However, he did
testify that there had been an occasion, with “all the commit-
teemen there,” when he had asked Boyle “[i]f Work Rule 11
was going to be treated the same [way] it was [in Houston] and
he told me yes and that was being in your vehicle on company
time. It was not allowed.”
By way of explanation, there is a not insignificant amount of
testimony concerning the purpose for work rule 11, when it was
formulated and as it had been applied prior to Boyle’s arrival as
Chicago plant manager. That testimony shows that, when for-
mulated, the rule had been aimed at stopping employees from
leaving Respondent-Employer’s premises during, for the most
part, their lunch breaks to engage in personal business and,
then, not returning until after work had resumed, thus leaving
Respondent-Employer understaffed for part of the remainder of
workdays. No question that work rule 11 had never been ap-
plied to driving between the main and annex buildings, along
South Kilbourn Street, after having clocked in and before hav-
ing clocked out. No question that employees who parked by or
in the Annex had regularly been making that short drive, after
having clocked in and before having clocked out. No question
that no employee had ever been disciplined prior to August of
1998 for having done that.
Still, decisions concerning application of work rule 11 to
those short drives along South Kilbourn, between buildings,
prior to Boyle’s arrival were decisions that had been made by
supervisors other than Boyle. Accordingly, such earlier deci-
sions “cannot serve as evidence that [Boyle] engaged in dispa-
rate treatment when he,” Arlington Hotel Co., 278 NLRB 26
(1986), chose to apply work rule 11 to driving on South Kil-
bourn between buildings while on the clock. See also, Frierson
Building Supply Co., 328 NLRB 1023 (1999). In consequence,
past toleration of such driving along South Kilbourn Avenue,
while on the clock, is not the so-persuasive factor in support of
the complaint’s allegations, as General Counsel and Charging
Parties would have it found to be.
Nor is there any basis for concluding that application of
work rule 11 to driving, on South Kilbourn between buildings
while on the clock, was somehow irrational on its face. South
Kilbourn Street is a public thoroughfare, not a part of Respon-
dent-Employer’s premises. Read literally, work rule 11 prohib-
its “[l]eaving company premises . . . during scheduled work
hours,” thereby encompassing driving on South Kilbourn after
having punched in and before having punched out for the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1182
workday. Such an application of the rule to those relatively
brief drives might seem petty. In fact, in some circumstances
the very insubstantial nature of an employee’s asserted miscon-
duct might be regarded as an indicium of unlawful motivation.
See Detroit Paneling Systems, 330 NLRB 1170, 1171 (2000);
Douglas Aircraft Co., 308 NLRB 1217, 1224 (1992). Yet, as
pointed out in both of those decisions, neither the Board nor its
administrative law judges are permitted under the Act to substi-
tute their own business judgment for that of respondents. See
also, Ryder Distribution Resources, 311 NLRB 814, 816–817
(1993).
As discussed in subsection E above, it is uncontroverted that,
by the time that he arrived in Chicago during mid-1998, Boyle
had a proven track record of improving performance at poorly-
performing facilities, both those of Respondent-Employer and
one of another company. One element of Boyle’s philosophy
for accomplishing such plant performance-improvements had
been strict enforcement of work rules. It is hardly surprising,
consequently, that Boyle would opt for stringent application of
work rules at Chicago—including that of a work rule which, on
its face, prohibits the slightest departure from the premises
while on the clock. Such an approach corresponds perfectly
with the course ordinarily followed by Boyle when attempting
to shape up performance at a plant. Beyond that, were an acci-
dent to occur during an employee’s brief drive between build-
ings on South Kilbourn while on the clock, it hardly requires
great imagination to ascertain whose counsel would be in a
superior position in an ensuing lawsuit between the person
injured in such an accident and Respondent-Employer.
The foregoing factors tend to lend support to Escobedo’s tes-
timony about what Boyle had said, about application of work
rule 11 to driving between buildings while on the clock, in re-
sponse to Escobedo’s question. Even so, an effort was made
during cross-examination to undermine his testimony. It was
pointed out that during his October 27, 1999 arbitration testi-
mony, Escobedo had mentioned neither gambling nor work rule
11 when testifying about the meeting with Boyle. “I didn’t ask
about rule 11, I asked about driving my car around the build-
ing,” answered Escobedo, in the instant proceeding, when con-
fronted with his arbitration testimony. In fact, that was his tes-
timony during direct examination, as quoted above. Further-
more, Escobedo pointed out, when testifying in this proceeding,
that during the arbitration “[t]hey never asked me” about gam-
bling or driving around. “No, I did not,” testified Escobedo,
“offer that up”—presumably, volunteer that information—
during the arbitration. “The arbitration was for Chester,” Esco-
bedo began to explain, before an effort was made to cut-off any
further answer by him on that point. Yet, that segment of Esco-
bedo’s testimony should not escape unnoticed.
In the instant proceeding it is alleged, inter alia, that Respon-
dent-Union had failed and refused to fairly represent Florian.
Escobedo was one of Respondent-Union’s officers. It hardly
would have advanced Florian’s arbitration-position for an offi-
cer of Respondent-Union to volunteer during arbitration that
Boyle had warned before August that he regarded driving be-
tween buildings, while on the clock, as prohibited conduct. Of
course, no one suggests that Escobedo should have lied, had he
been asked a question requiring such an answer about what
Boyle had said. Nonetheless, had he simply volunteered an
account of what Boyle had said, is there the slightest doubt that
such volunteered information would now be pointed to, as evi-
dence supporting the allegation that Respondent-Union had
failed to fairly represent Florian—that by volunteering such
unrequested information, Escobedo had effectively been un-
dermining Florian’s position in the arbitration.
Cross-examined next, about what had been said about driv-
ing between the buildings, Escobedo testified, “He said—when
I asked about driving—punching in and driving your car
around, I said is that breaking any rules, they looked at it and
they said rule 11,” after which, “Moore looked at Boyle and
said is that similar to one in Houston about punching in and
going to your vehicle and he said yes.” Aside from the differ-
ence between Moore asking Boyle if the rule was similar to the
one in Houston and Boyle responding affirmatively, that testi-
mony by Escobedo during cross-examination is similar to what
Escobedo testified during direct examination had been said:
Escobedo asked if punching in and driving to the annex vio-
lated a rule, Boyle examined the work rules, Boyle said that
such conduct would violate work rule 11. In other words,
Escobedo’s recitation was essentially the same during direct
examination and cross-examination. That essential correspon-
dence between his accounts further tends to illustrate the reli-
ability of Escobedo’s description of what had been said by
himself and Boyle.
The reliability of Escobedo’s description gathers even further
force when the record of Boyle’s testimony, about the meeting,
is examined. Escobedo “asked me about gambling,” testified
Boyle, and “I said it’s against the work rules.” According to
Boyle, “Escobedo asked me if it was okay to drive around the
building after you clocked in. And I said no,” or, “is it okay if
we clock in and drive around to the annex building? I said no,”
after which “Moore said are you going to enforce that work rule
the same way you did in Houston as far as getting into your car?
And I said I’m going to enforce it the way I always have en-
forced it.” The only difference between that testimony by
Boyle, and that of Escobedo, is that Boyle made no mention of
having checked over the work rules and having specifically
mentioned work rule 11, in addition to the relatively insignifi-
cant difference between whether Moore did or did not ask a
question and Boyle did or did not advance an answer to Moore’s
question. Despite those differences, the fact remains that
Boyle’s account essentially corroborates that of Escobedo in the
important respects that Escobedo had inquired about driving
between buildings while on the clock and Boyle had said that he
regarded such conduct as a violation of work rules.
During cross-examination about what had been said during
the meeting, Boyle was not again taken in detail through his
direct examination description of what had been said. Instead,
his attention was directed to an account of that meeting given by
him when his deposition, in connection with the District Court
proceeding, had been taken on September 15, 1999. Asked if
Escobedo or Morales had said anything during the meeting,
Boyle answered, “Just general conversations about the work
rules.” Of course, that deposition answer is hardly inherently
contradictory with the above-quoted testimony given by Boyle
in this proceeding. Furthermore, it seems that, at that point in
PRECOAT METALS 1183
his deposition, Boyle had been focusing on what had been said
about the revised work rules of June 25. For, when he was
asked if he recalled “anything specific that they said about the
work rules?” Boyle answered, “They were all, I don’t recall
specifics, protesting the work rules in general at the start of the
meeting.” (Emphasis added.) As mentioned above, there seems
no dispute that the meeting had started with Respondent-
Union’s officers protesting posting of added work rules without
prior notification to them—indeed, that had been the very pur-
pose for convening that meeting.
Questioning on the point continued, nevertheless, during
cross-examination. “Do you remember any one specific protest
that they [Escobedo or Morales] had?” (emphasis added), to
which Boyle answered, “Not really, no.” Relying on that an-
swer to that question, cross-examination continued: “And to-
day, with all certainty and clarity, you come here and you’ve
told us, under oath, of a very specific question that Manny
Escobedo asked you, correct?” (Emphasis added.) Well a
“question” is not inherently a “protest.” In fact, Boyle’s above-
quoted testimony about Escobedo’s questions, during the meet-
ing, do not show that Escobedo had been asking in a confronta-
tional manner. And, with reference to that last-quoted answer,
during cross-examination Boyle pointed out, “You asked me
[during the deposition] if they made a statement [sic]. They did
not make a statement [sic]. They asked me a question.”
Still, cross-examination was pursued: “And that’s your dis-
tinction? That’s why you told me they didn’t make any, they
didn’t say anything at the meeting?” (Emphasis added.) Well,
of course, that simply is not what Boyle had said during his
deposition-answer. Rather, he had answered, as shown by the
above-quoted portion from the record of the deposition, that
they had said, “Just general conversations about the work
rules,” and, “protesting the work rules in general at the start of
the meeting.” “That’s not why I told you they didn’t say any-
thing at the meeting,” protested Boyle, in reply to the question
about having said during the deposition “they didn’t say any-
thing at the meeting.”
By that point the questioning appeared, not surprisingly, to
be totally frustrating and confusing to Boyle. In fact, it is an-
other illustration of the already-mentioned confusion some-
times caused by counsels’ own confusion and efforts to shoe-
horn-witnesses’ testimony into a factual framework which
counsel sought to create. Thus, a seemingly frustrated and
confused Boyle answered, “At the time I may not have remem-
bered it,” when asked why he had said on December 15, 1999,
that Escobedo or Morales “talked about general work rules but
didn’t have one specific protest? Why did you say that to me?”
Well, in fact, Boyle had not said that. As quoted above, his
deposition shows that he had specifically said “I don’t recall
specifics”—precisely the “At the time I may not have remem-
bered it” answer that he gave to the “Why did you say that to
me?” question in this proceeding. “No,” reiterated Boyle dur-
ing cross-examination in the instant proceeding, when asked,
“At that time you didn’t remember it, correct?”
“I’ve lived my life [in] this case the last 30 days. I am very
clear on that meeting,” affirmed Boyle. In fact, as quoted
above, his account of his exchange with Escobedo was not only
clear, but corresponds essentially to the above-quoted one given
by Escobedo, as well as to that of Moore, to the extent that
whatever Moore said to Boyle and Boyle to Moore may be of
any import. No truly internal contradiction emerges from com-
parison of Boyle’s testimony in this proceeding with the por-
tions of his deposition utilized when cross-examining him.
Given Escobedo and Boyle’s mutually corroborative ac-
counts of what had been said during that meeting about driving
between buildings, there might seem little to be gained by also
reviewing the record of Damron’s testimony concerning that
meeting. Yet, Damron is a principal witness in the proceeding,
given certain allegations directed particularly at him. Thus,
some attention should be paid to what was revealed during
cross-examination of him.
As had Escobedo and Boyle, during direct examination
Damron testified that, during the meeting, Escobedo had asked
about gambling—”would it be wrong, if you or would be
against the company rules if you, if you run basketball pools,
football pools in the plant”—and, after asking if money
changed hands and receiving an affirmative answer, Boyle had
said that such activity was against the rules. Moreover, Dam-
ron testified, during direct examination, that Escobedo then
“asked Boyle was, coming in, driving in, punching the time
clock and driving through the Annex Building, and then from
the Annex Building coming over and punching out. Was that
going to be a suspension or termination on that? And Boyle
said, yes.” Now, obviously, Damron added a little—
”suspension or termination”—to the accounts of Escobedo and
Boyle. And unlike Escobedo, but like Boyle, Damron made no
mention of work rule 11 having been identified specifically
during that meeting. Even so, his account is essentially the
same as those of Escobedo and Boyle: Escobedo asked specifi-
cally about driving between buildings after having punched in
and before punching out, and Boyle said that it was prohibited.
Cross-examination about the meeting consisted largely of an
effort to develop some sort of contradiction between Damron’s
above-quoted testimony and his responses during a deposition
given on September 21, 1999. As with Boyle, that proved to be
a not particularly successful effort. For example, during the
deposition’s taking, Damron had answered, “Not that I recall,”
when asked if Boyle had said that “he was going to make an[y]
changes or deletions to the work rules?” (Emphasis added.)
Well, no one, including Damron, testified in this proceeding
that Boyle had said a word about “changes or deletions to the
work rules,” though possible work-rule additions had been
discussed. Boyle was asked if the rules prohibited particular
conduct and he replied that they did. So far as the testimony
shows, neither Escobedo nor anyone else specifically told
Boyle, during the meeting, that employees were driving on
South Kilbourn between buildings after having punched in and
before having punched out. From Escobedo’s question, Boyle
may have suspected as much. But, there is no evidence that he
had said he was going to “change[ ]” anything in the rules to
prohibit such driving. So far as Boyle was concerned, the rules
as written already covered such conduct.
Damron acknowledged that he had not said anything about
Escobedo’s question when the deposition had been taken. Yet,
there is no evidence in this proceeding that any question had
been asked, while taking his deposition, that would naturally
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1184
have led Damron to describe Escobedo’s questions to Boyle.
From the deposition questions described during this proceed-
ing, it appears that when the deposition had been taken, as also
at some points during this proceeding, questions so focused on
a change in application of work rule 11 that completely disre-
garded were words actually spoken during the meeting.
For example, during the deposition process, Damron was
asked, “I’m asking you what your understanding of these
statement[s] was and whether you understood that statement
from Mr. Boyle to mean that work rule 11 would somehow be
enforced differently than it was in the past.” Obviously, that
question seeks Damron’s subjective understanding and opinion
about what Boyle had been saying during the meeting. In re-
sponse, the deposition shows that Damron focused on what
Boyle had said, as opposed to his own interpretation of what
Boyle had been saying: “All I recall about that time is what he
said about he was going to enforce the rules. I don’t recall
anything about it being 11 or six or eight or anything like that.”
Which, of course, is perfectly consistent with Damron’s above-
quoted testimony in the instant proceeding: he made no men-
tion of Boyle having specified work rule 11, nor any other
numbered rule, when responding to Escobedo’s question during
the meeting. “I did not know exactly when you say 11,10, 9, 8
for which company work rule was. I know that that was men-
tioned in there about driving. Which company work rule it was
I didn’t know,” testified Damron.
Certainly, by that point in his testimony during this proceed-
ing, it did appear that Damron was not being totally candid. Of
course he knew “[w]hich Company work rule it was” that cov-
ered driving between buildings while on the clock. Moreover,
contrary to his later answers, given in response to questioning
put to him during the deposition, obviously Damron knew that
a “practice that had been going on at the plant was going to stop
or was then going to be outlawed” as a result of Boyle’s answer
to Escobedo’s question. That such a practice, driving between
buildings while on the clock, had existed was, in fact, the very
reason for Escobedo having asked Boyle about its continuation.
Those answers by Damron were less than candid and, further,
serve as another illustration of a principal witness’s willingness
to tailor answers so that, at the moment when given, they would
be most helpful to the party whose interest the particular prin-
cipal witness—in this instance, Damron—was attempting to
further, in this instance that of Respondent-Union. However,
Damron’s unwillingness to be candid on those points—about
his understanding of the implication of Boyle’s answer, to the
question posed during the meeting by Escobedo, on a practice
which clearly had been going on—hardly serves to demonstrate
that there had not been an exchange between Escobedo and
Boyle about driving between buildings after having punched in
and before punching out for the workday.
The foregoing accounts by Escobedo and Boyle show that
the former had asked whether employees would be allowed to
drive between buildings after clocking in and, in addition, that
Boyle had answered in the negative. Damron’s description of
what had been said corresponds to the testimony given by
Escobedo and Boyle on those points. And those accounts tend
to be further supported by the uncontested evidence of what
occurred following the meeting with Boyle.
As to that, Boyle apparently did not back down from his in-
tention to implement the two newly-formulated and already
posted new work rules, though he did back away from imple-
menting at least one of the additional new work rules that he
had sprung on Respondent-Union’s officers during his meeting
with them. Either during that meeting or soon afterward, Re-
spondent-Union requested that Respondent-Employer hold off
enforcement of new rules until employees could be informed
about those two new rules—no papers, magazines, crossword
puzzles, etc. and, secondly, insubordination—and, also, strict
enforcement of rules already prohibiting gambling and leaving
the premises. Boyle agreed to do so.
For the General Counsel and the Charging Parties, particu-
larly Florian, the crucial point in this subsection is not what
Boyle may have said during his and Moore’s meeting with
Damron, Robinson, and Escobedo. Rather, the crucial point is
what those three officers of Respondent-Union may have told
employees about Boyle’s statements, particularly about leaving
the premises and driving between buildings. For, Florian de-
nied generally that, prior to the end of his workday on August
3, he had been aware of any revision to work rule 11, so that it
prohibited driving from the main building to the annex after
having punched in and, as well, driving from the annex to the
main building to punch out. Yet, there is a certain high degree
of illogic to concluding that a union’s officials would not pass
the word to employees they represented, after being told by
those employees’ employer that rules would now be enforced
strictly.
In general, Damron, Escobedo, and Morales testified that
Morales, who had not attended the meeting with Boyle, was
informed of what Boyle had said during that meeting. The
three unit officers further testified that they agreed to commu-
nicate to employees what Boyle had said, as they went about
their duties during that and succeeding work shifts. Further
communication to Chicago unit employees would be made at a
unit meeting scheduled for Sunday, July 12. Before describing
the testimony about those communications concerning what
Boyle had said, one overall point should be brought into focus.
Prior to Boyle’s arrival at least some employees had been
regularly punching in at the main building’s timeclock and,
then, driving along South Kilbourn to park in the Annex or the
area of the Annex. At the end of their shifts they had been
reversing that process: driving from the Annex or the area of
the Annex along South Kilbourn to the main building where
they punched out. Driving along South Kilbourn, a public
thoroughfare, meant that those employees had left Respondent-
Employer’s premises, albeit for relatively brief periods. Read
literally, however, work rule 11 absolutely prohibited
“[l]eaving company premises . . . during scheduled work
hours,” and, consequently, prohibited those relatively brief
driving-trips on South Kilbourn.
The overall point, as will be seen in the following description
of testimony, is that some testimony shows that work rule 11
had been mentioned specifically to unit employees. Other tes-
timony shows that there had been mention only of driving back
and forth between the buildings after having punched in and to
punch out. In still other testimony there is reference only to
leaving or driving off the premises. Based largely upon
PRECOAT METALS 1185
Florian’s above-described general denial, and some other testi-
mony by him to the same effect, General Counsel and Charging
Parties take the position that Florian could not have been
faulted for violating work rule 11 on August 3 because he had
never been told, in so many words, that driving between build-
ings while on the clock would be regarded by Respondent-
Employer as a violation of work rule 11.
The riposte to that position is that, even had work rule 11
never been mentioned specifically, Florian had been told that
work rules were going to be enforced strictly by Boyle and, in
addition, that leaving the premises would no longer be permit-
ted. Thus, the riposte continues, even though work rule 11 may
never have been mentioned to Florian, he should have under-
stood that leaving Respondent-Employer’s premises to drive on
South Kilbourn between buildings would no longer be tolerated
and, also, should reasonably have understood that it was work
rule 11 that prohibited doing so. All else aside, that is the only
rule which deals with leaving Respondent-Employer’s prem-
ises. As Maintenance Mechanic Michael Kuliczkowski testi-
fied, “The only way to leave the premises is to go on the
street.” That same point was made by Morales. Asked during
recross examination about driving “either back and forth from
the annex to the main building to punch in or punch out,” he
answered, “That was part of driving off the company prem-
ises.”
Indeed, it appears to have been that commonplace equa-
tion—driving on South Kilbourn between buildings while on
the clock—leaving Respondent-Employer’s premises—
violation of work rule 11 as read literally—which occasioned
problems for some of the witnesses when they testified about
statements by Respondent-Union’s officers about what Boyle
had said. By the time that these witnesses testified, it was no
secret that Florian, and White also, had been suspended and
discharged for violating work rule 11 by having left Respon-
dent-Employer’s premises and driven on South Kilbourn from
the Annex to punch or clock out at the main building. At some
points it appeared that accounts of what Respondent-Union’s
officers had said were genuinely influenced by witnesses’
commonsense conclusion from what had actually been said by
those officers: that leaving the premises would now be prohib-
ited under Boyle’s strict enforcement policy and such strict
enforcement would logically extend to leaving the premises to
drive on South Kilbourn between buildings after having
clocked in and before having clocked out. Thus, at some points
witnesses appeared to be testifying that the above-stated equa-
tion had been expressed explicitly, in some instances to fortify
Respondent-Union’s position, but in other instances because
the equation seemed so obvious to those witnesses from what
had been said to them.
After the meeting with Boyle, Damron testified that he and
Escobedo had described to Morales what Boyle had said. Ac-
cording to Damron, Escobedo did “most of the talking,” in the
process “explain[ing] to Eddie [Morales] that if you drive back
and forth to the building, punch in and all. He [Boyle] wasn’t
going to have that. The gambling wasn’t going to happen and
that he was going to be firm on the company work rules and he
was going to go by the contract.” “Yes,” answered Damron,
when asked during cross-examination if he also had told
Morales about driving between the buildings while on the time
clock. Of course, Damron’s testimony accurately describes
some of the remarks made by Boyle, during the above-
described meeting with Respondent-Union’s officers. How-
ever, neither Morales nor Escobedo testified that those remarks
had been related to Morales in the fashion portrayed by Dam-
ron.
Escobedo denied flatly, both during direct examination and
during cross-examination, that Damron had said anything dur-
ing the conversation with Morales. But, Morales testified,
“Rich Damaron [sic] told me that we have a new plant manager
and the rules that are in effect, it’s going to be handled in the
proper manner. He’s going to go through the work rules with
us, supposedly with the committee, that he’s going by the work
rules. Strictly by the work rules, and there’s no exceptions to
that.” Morales reaffirmed that testimony during cross-
examination. At that point he was asked if the only thing he
had been told by Damron was that Boyle was going to enforce
all the rules and had no favorites. “Right,” answered Morales,
along with the direction “[t]o let everybody know about it.”
Aside from the inconsistency between Escobedo and Morales
concerning whether or not Damron had said anything at all,
during the three men’s meeting after the one with Boyle,
Morales did not corroborate Damron’s above-mentioned af-
firmative answer to the question about his having also told
Morales about driving between buildings and the timeclock. Of
course, that hardly bars a conclusion that Escobedo had done
so, as Damron testified had also occurred during that particular
conversation.
As to that, Escobedo agreed that, following the meeting with
Boyle, “me and Rich talked to Eddie Morales” and, “I informed
him that Jim Boyle said he was going by all the work rules and
the contract,” with no more favoritism. “Right,” agreed Esco-
bedo, he had also told Morales that “Boyle said to pass the
word to everybody.” Escobedo made no mention of having
said anything specific to Morales about work rule 11, about
driving between buildings while on the clock, nor about leaving
Respondent-Employer’s premises. In fact, Morales agreed that,
“Not, no, they didn’t tell me everything that happened at the
meeting [with Boyle] or what was really said, or what rules
really came up about that meeting.” Instead, testified Morales,
all that he had been told by Damron and Escobedo was that,
“Everybody was supposed to go by all the rules. Not just one
particular, two particular” rules. But, that does not mean that
Escobedo had never informed Morales about what Boyle had
said about leaving the premises to drive between buildings
while on the clock.
Morales described a conversation between himself and Esco-
bedo: “Just me and him. Manny and myself.” At one point
during the overall sequence of questioning Morales testified that
his conversation with Escobedo had occurred “before the meet-
ing they had with the company regarding the rules.” Yet, he
also testified that during this conversation, Escobedo had “said
that the new plant manager is going to enforce all rules, espe-
cially driving around the building. That we shouldn’t be driving
around the building no more.” As set forth above, Boyle had
said that to Damron, Escobedo, and Robinson. But, obviously,
Escobedo could not have related Boyle’s statement to Morales
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1186
until after the meeting with Boyle. In fact, Morales’s testimony,
about Escobedo having said that, occurred during the overall
confused sequence of questioning mentioned in footnote 19
above, when counsel and Morales were going back and forth
about what had been said before and after the unit officers’
meeting with Boyle. Although Escobedo did not corroborate the
foregoing account by Morales, it seems quite clear that Boyle
had said to pass the word concerning his intention to enforce the
work rules and, further, that gambling and leaving the premises
to drive between buildings would be prohibited. So far as the
record discloses, Escobedo had nothing to gain by concealing
the latter remark from Morales.
In any event, even had Boyle’s position on driving between
buildings not been communicated specifically to Morales, that
does not inherently mean that Boyle had never said that such
conduct would be prohibited. To the contrary, the testimony
about what Boyle had said during the meeting leaves little
doubt that Boyle had said that he regarded the prohibition of
work rule 11 to encompass leaving the premises to drive be-
tween buildings. That testimony tends further to be confirmed
by certain other events, ones occurring after the meeting with
Boyle.
Escobedo testified that he had told other employees about
what Boyle had said during the meeting. For example, Esco-
bedo testified that he had told George Hollins “you can’t drive
your car around no more,” but Hollins replied that he had not
been doing that. George Hollins corroborated Escobedo’s testi-
mony. After Escobedo had said, “The guy ain’t playing. The
guy [is] enforcing the rules,” testified George Hollins, Escobedo
had mentioned specifically a couple of rules: “He said about
being late, being absent,” and mentioned gambling. Asked dur-
ing cross-examination if Escobedo had mentioned that Boyle
had said that he intended to crack down on driving back and
forth between the annex and main buildings, George Hollins
answered, “No. He didn’t tell me like that. He was just telling
me about absent and being late and stuff like that.” That is,
testified George Hollins, Escobedo had said only that Boyle was
“just going by the rules.” To be sure, George Hollins did not
describe Escobedo as having said anything about driving be-
tween buildings. Still, his testimony does tend to support Esco-
bedo’s testimony about having passed the word to employees
about what Boyle had said during his meeting with Respondent-
Union’s officers.
Ricky Hollins, the brother of George Hollins, did corroborate
Escobedo’s testimony about having told employees that
Boyle’s position was that employees were prohibited from
leaving the premises. According to Ricky Hollins, he had been
told by Escobedo, “You all have to start paying close attention
to the work rules because Jim is going to start enforcing the
work rules,” and, by way of “examples,” had added, “you have
to watch your attendance, the gambling pools and leaving off
company property.” During cross-examination, Ricky Hollins
identified addition “examples” which Escobedo had listed as
being prohibited. He also agreed that Escobedo had never said
specifically that prohibited by Boyle was “driv[ing] from the
Annex building to the other building,” nor punching in and
driving around and, at shift’s end, driving around and punching
out. But, Ricky Hollins remained firm during cross-
examination that Escobedo had said “leaving company prop-
erty” was going to be strictly prohibited by Boyle.
All else aside, the above-described testimony by George and
Ricky Hollins does provide some corroboration for Escobedo’s
testimony that he had been relating to employees what Boyle
had said. To be sure, neither George nor Ricky Hollins’ testi-
mony shows that Escobedo had been precise as to what had
been said by Boyle, especially that leaving the premises to
drive between buildings constituted a violation of work rule 11.
Yet, testimony by Ricky Hollins does show that Escobedo had
mentioned “leaving company property” and, as maintenance
mechanic Michael Kuliczkowski and Morales pointed out, an
employee driving along South Kilbourn, between the main and
annex buildings, was obviously leaving Respondent-
Employer’s “property.” Moreover, the fact that such conversa-
tions, between Escobedo and at least some employees, had
taken place provides a backdrop for Escobedo’s account of a
particular conversation with Florian.
On “the next day” after the meeting with Boyle, “[b]y the
loading dock in the annex building,” at “about a quarter to 8:00
in the morning when Chester relieved me,” testified Escobedo,
“I told him we can’t drive our cars around no more. Jim Boyle
said we can park here, don’t punch in and drive around, bring
your car, park it, walk over and punch in.” Escobedo further
testified that he had told Florian, “we got to cut out the baseball
pool, the 13 run pool.” According to Escobedo, “He just said
okay.” Even though Escobedo’s testimony shows that he had
not specifically mentioned work rule 11 to Florian, it does show
that he had given notice to Florian that Boyle was taking the
position that driving between buildings would be prohibited
after having punched in and before having punched out.
True, the testimony by Escobedo, concerning what he had
said to Florian, portrays a more complete explanation of Boyle’s
comments than, as set forth above, Escobedo had conveyed to
George and Ricky Hollins, though the latter did testify that
Escobedo had generally mentioned “leaving off company prop-
erty.” Yet, there is testimony by Escobedo from which it can be
inferred that a more complete explanation would likely have
been provided to Florian: “Chester’s my friend. He was break-
ing the same rules [sic] I was.” Aside from the less than reliable
testimony by Focht set forth in subsection C above, so far as the
evidence shows no animosity had developed between Florian
and Escobedo between the time that the former had asked the
latter to be on his (Florian’s) slate, as mentioned in subsection B
above, and late June of 1998. So far as the record shows, rela-
tions between them did not sour until later during 1998.
Regardless of what he may or may not have said to other
employees about Boyle’s comments, Escobedo remained firm
during cross-examination about having made the above-quoted
statements to Florian. “I told him the next day by the loading
dock next door when he relieved me,” and, “I told Chester after
we had the meeting about the work rules with Jim Boyle and
Robert Moore, the next day I told Chester,” answered Escobedo
to questions put to him during cross-examination. “About a
quarter to 8:00 in the morning,” he reasserted, “By the loading
dock in the annex building. He was my relief.” Throughout his
testimony about this conversation with Florian, Escobedo’s
testimony was specific and detailed.
PRECOAT METALS 1187
Furthermore, Escobedo’s testimony concerning that conver-
sation was never denied with particularity by Florian. Gener-
ally, Florian denied having been made aware of any prohibi-
tions by Boyle against driving between buildings while, in ef-
fect, on the clock. But those general denials were provided
during the General Counsel’s case-in-chief. Witnesses were
called during rebuttal. While he was sitting at counsel table,
however, Florian was not one of them. As it turned out, that
separate and individual conversation with Escobedo was not the
only uncontested notice to Florian about Boyle’s prohibition on
leaving Respondent-Employer’s premises, by driving between
buildings after punching or clocking in and before punching or
clocking out.
Escobedo testified that on Sunday, July 12, there had been a
unit meeting—a meeting at which Respondent-Union, and Lo-
cal 3911 of which it is a part, review with unit employees
“problems at the plant, any new changes, any new rules”20—at
Steelworkers’ Harlem and 63rd Street facility in Chicago. In
addition to himself, testified Escobedo, attending that particular
meeting had been Damron, Morales, Recording Secretary San-
quist, then-Staff Representative Langele, Local 3911 President
Saunders, and unit employees Florian, Crylen, and maintenance
mechanic Kuliczkowski. No question that those three unit
employees had attended that meeting. Neither Florian nor Cry-
len denied having attended it. Kuliczkowski testified that he
had attended it. The sign-in sheet for the meeting bears the
uncontested signatures of Florian, Crylen, and Kuliczkowski.
Two exchanges of significance occurred during the meeting.
First, Morales chastised Florian about the June 22 doctors
excuse notice put out by Boyle, as mentioned near the end of
subsection E above. As pointed out in subsection C above,
Focht acknowledged that he could not “say that [Florian]
worked most of the [Saturday] time he was scheduled” to work
and, moreover, that Florian had submitted doctors’ notes at
least “eight times” to excuse having to do so. In fact, as also
set forth in subsection C above, perceived favoritism toward
Florian had led Respondent-Union, as bargaining agent for all
unit employees, to protest excusing Florian from scheduled
Saturday work, while refusing to excuse other employees.
Thus, while Florian’s excuses may not actually have been the
circumstance which had led Boyle to post the June 22 notice—
and Boyle never claimed that it had been—from the outsider’s
perspective of Morales, it was not illogical to assume that it had
been Florian’s medical excuses which had precipitated formula-
tion and posting of that notice. After all, there is no evidence
that any other unit employee had submitted as many medical
excuses, to be relieved of scheduled work, as had Florian.
It cannot be somehow concluded that, in chastising Florian
about the medical excuses on July 12, Morales was showing
some sort of animus toward Florian, for having attempted to
run for unit chairperson during 1997, and for making state-
ments about trying to run in 2000. The substance of Boyle’s
June 22 notice affected all unit employees, not only Florian. It
effectively put an end to a practice which seemingly had been
operating to the benefit of all unit employees, even if they

20 Not to be confused with Local 3911’s monthly meeting for all
members of that local, as described in subsection C above.
should not have been accorded nonchargeable absences by
presentation of medical excuses. Against that background, it
hardly displays statutory animus for a bargaining agent’s offi-
cer to upbraid an employee whose conduct seemingly had led
an employer to announce that a procedure beneficial to all unit
employees would no longer be tolerated. Interestingly, so far
as the evidence discloses, during the July 12 meeting Florian
never challenged the assertion, by Morales, that it had been
Florian’s conduct which had led Boyle to promulgate and post
his June 22 notice.
Second, according to Escobedo, Damron had told the group
on July 12 “we have a new boss, he’s going to go by all the
work rules, he’s going to go by the contract, that he’s not going
to do like Jack did and play favoritism, everybody’s going to be
treated the same, and he’s going by the rules.” To that, Esco-
bedo testified that he added either “that I asked about these
certain work rules and the man [Boyle] said that those were
dischargeable offenses, okay, as far as the gambling and the
driving around,” or more exactly, “we can’t do no more 13 run
pools and we can’t drive our cars after clocking in around the
building.” Not necessarily inconsistent with that testimony,
Escobedo had testified during an arbitration proceeding, “I told
him [Florian] that no more driving around the building. The
management is going to go by work rule 11, they don’t want no
one to leave the premises.”21
As had Escobedo, Morales testified that Damron had opened
the meeting by stating “that the work rules that are in effect are
going to be, they’re going to enforce the work rules. The new
plant manager is going to enforce the work rules for everyone.
And there are no exceptions to the rules,” or, “That Mr. Jim
Boyle was going strictly on work rules that they had posted.
And that everybody should go by it and, you know, that’s about
it.” Then, testified Morales, “I spoke to him [Florian] about the
doctor’s note,” because, “Mr. Chester Florian asked about the
doctor’s note.” According to Morales, it had been after that
exchange that Escobedo had raised the rules against gambling
and leaving the premises.
As quoted above, Escobedo testified at one point, in connec-
tion with what he had said to Florian, that he had mentioned
specifically “work rule 11,” but for the most part testified that
he had said “driving around” or “drive our cars after clocking in
around the building.” However, Morales testified repeatedly
that Escobedo had mentioned work rule 11 at the July 12 unit
meeting. For example, during direct examination he testified,
“Then Manny Escobito [sic] also mentioned the gambling and
Work Rule 11,” and that Escobedo “said that there will no
21 During the arbitration, Escobedo had also testified, “I told Chester
there was no more doctor excuses,” but during the instant proceeding
Escobedo testified that, “Eddie Morales talked to him about the doctors
notes.” The latter appears to be the more accurate account, based upon
the other evidence presented in this proceeding. In any event, regardless
of who specifically had initially brought up the subject of doctors’
notes—Escobedo or Morales—it seems undisputed that it had been
Morales, not Escobedo, who had chastised Florian during the July 12
unit meeting. In the final analysis, the exchange about doctors’ notes is
collateral to the crucial question of what had been said during that meet-
ing about leaving Respondent-Employer’s premises while on the clock,
by driving off the premises after clocking in and before clocking out.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1188
longer be people driving around the building, because that was
a violation of Work Rule 11. And the gambling shouldn’t, it’s
also [not] going to take place, too.” During cross-examination,
Morales testified that Escobedo had “just said that he was, also,
Mr. Jim Boyle was also following rules on Work Rule 11 and
gambling.” As cross-examination progressed, however,
Morales began to back away from his above-quoted testimony
that Escobedo had mentioned specifically work rule 11 during
the July 12 unit meeting.
“Yes, he answered, when asked if Escobedo had mentioned
“Gambling and Rule 11,” and, “he said gambling and Work
Rule 11.” Yet then Morales added to that latter answer, “Driv-
ing off the company premises.” In fact, during an arbitration
conducted on October 27, 1999, Morales had been asked what
Escobedo had said to Florian and had answered, “He said Jim
Boyle was going to enforce all rules, especially driving around
the plant,” though he later had answered affirmatively when
asked, “But, you specifically recall Manny Escobito [sic] tell-
ing Chester about Rule 11 at that time?” During recross ex-
amination in this proceeding, however, Morales was asked if
Escobedo had said anything during the July 12 meeting about
“punching in or punching out”; Morales responded to that ques-
tion, “He didn’t say that. He said about driving around.”
Asked, in light of that answer, to describe “what exactly” Esco-
bedo had said, Morales responded, “He said that driving around
the, driving off the company premises wasn’t going to be al-
lowed anymore,” as well as that gambling would no longer be
allowed.
Well then, Morales was next asked, Escobedo “didn’t say it
would be against the rule for an employee to drive either back
or forth from the annex to the main building to punch in or
punch out, correct?” Morales answered, “That was part of
driving off the company premises.” “Yes,” answered Morales,
when asked if that was “what you understood [Escobedo] to
mean”; “That was basically what he was getting at, yes.”
Those are hardly illogical answers. It seemed clear by the end
of his testimony that Morales—like Escobedo, for the most
part—was testifying that Escobedo had not mentioned specifi-
cally work rule 11, but had mentioned conduct which reasona-
bly should have been understood to be encompassed by that
rule.
In fact, merely saying that “driving off the company prem-
ises wasn’t going to be allowed anymore,” without specific
mention of the particular work rule that prohibited such con-
duct, is akin to what all witnesses agreed that Escobedo had
said on July 12 with reference to gambling. As to the latter,
Escobedo made no specific mention of work rule 4; he said
only that Boyle would no longer tolerate gambling or, more
specifically, perhaps, football or baseball or the 13 run pools.
Apparently, everyone present had no problem understanding
the work rule to which Escobedo was referring. Similarly, the
fact that Escobedo had not specifically mentioned work rule 11
does not mean that employees hearing what he said would not
reasonably have understood the specific type of conduct to
which Escobedo was referring and, further, that it was a prohi-
bition covered by work rule 11, the rule which dealt specifically
with leaving Respondent-Employer’s premises.
That is essentially what Damron described Escobedo as hav-
ing said. “I started off to say that we got a new Plant Manager
and he’s going to be firm with the company work rules and go
by the contract,” after which, Damron testified, Escobedo later
“said that there would be no driving over in [sic] the Annex
building, punching in and driving over and no driving over and
punching out.” Still, there is some doubt that Damron was
being fully candid in testifying that Escobedo had said all of
those things.
As set forth above, Morales denied that Escobedo had said
“punching in or punching out,” and Escobedo testified, for the
most part, that he had said only “driving around,” or “driving
around the building.” The extra remarks which he attributed to
Escobedo seem to have been Damron’s effort to tailor his tes-
timony somewhat to buttress Respondent-Union’s overall posi-
tion that Florian had been put on notice that he could not clock
in and drive to the annex, nor make the reverse trip at shift’s
end. Nonetheless, Damron’s account of Escobedo having said
“no driving over [to] the Annex building” is similar to Esco-
bedo’s “the driving around,” and “no more driving around the
building” testimony, as well as to the “no longer be people
driving around the building,” “Driving off the company prem-
ises,” “driving around,” and “driving off the company prem-
ises” testimony by Morales.
Respondent-Union’s officers were not the only witnesses
who testified about what had been said during the July 12 unit
meeting. As set forth above, one of the three employees who
attended that meeting had been maintenance mechanic Ku-
liczkowski. During direct examination he testified that, with
respect to leaving the premises by driving on South Kilbourn
between buildings, Escobedo had said, “management is going
to enforce the work rules. One of which was you’re not sup-
posed to leave the Company premises when you’re punching in
or out by driving to the annex building on the streets of Chi-
cago.” Essentially, he repeated that testimony when initially
cross-examined about what Escobedo had said on July 12: “the
. . . new manager at Precoat Metals is going to enforce the work
rules. And . . . one of the work rules that he’s going to enforce
is the driving, the leaving of the premises by car onto the City
streets and coming to the main plant to punch out or in.”
As cross-examination progressed, however, Kuliczkowski al-
lowed that Escobedo might not have said “punching in and
out,” and, during recross examination, he acknowledged that
Escobedo might have said only leaving the premises, without
specific mention of “City streets.” Even so, during recross
examination Kuliczkowski reiterated the significant core of
Escobedo’s verbal notice of Boyle’s prohibition on driving off
the premises while on the clock: “Management at the plant is
going to enforce the work rules with disciplinary action. And
one of the rules is leaving the plant premises. Or punching in
or leaving the premises. Driving around with your cars.”
To be sure, Kuliczkowsi did retract the “punching in and
out” and “City streets” portions of his initial descriptions of
what Escobedo had said. To the extent that those retractions
might be argued as adverse reflections on the reliability of his
testimony, however, it hardly seems likely that Kuliczkowski
would have made retractions had he been attempting to fabri-
cate testimony that would injure Florian’s position. So far as
PRECOAT METALS 1189
the record shows, there was no prior statement—affidavit,
deposition or arbitration testimony—that compelled him to
retract those portions of his testimony. If he had been at-
tempted to advance false testimony against Florian, there seem-
ingly was no reason for him not to have simply stuck with his
initial accounts throughout examination. The fact that Ku-
liczkowski did not do so—that he made a seeming effort to
reflect upon what had been said and, as examination pro-
gressed, what may not have been said—appears to reflect his
honest effort to try to remember and recreate what had been
said during the July 12 meeting.
Kuliczkowski testified that, for him, “punching in and out”
was obviously what Escobedo’s statements “pertained to.” In
fact, that seems to have been a logical inference for Ku-
liczkowski to draw that day. The only change in what had be-
come normal procedure for employees, made by Boyle’s state-
ments, as related by Escobedo on July 12, had to pertain to
clocking in and then driving on South Kilbourn to the annex
and the reverse trip. There is no evidence that Respondent-
Employer’s Chicago employees had been regularly leaving the
premises for any other purpose(s). Driving from those prem-
ises for lunches or other personal business was understood on
July 12 to be already covered by work rule 11 and forbidden by
its terms. Accordingly, the only reason for Escobedo to be
announcing a change in driving off the premises during work
time had to mean that he was talking about punching in and
driving to the annex, and driving from the annex to the main
building to punch out at shifts’ end. A reasonable person
should have understood that, as had Kuliczkowski, even though
Escobedo did not mention specifically punching in and out, nor
work rule 11.
Similarly, even if Escobedo had not said specifically “City
streets,” that does not mean that Kuliczkowsi had been lying
when initially including that phrase in his initial accounts of
what Escobedo had said. “The only way to leave the premises
is to go on the streets,” testified Kuliczkowski. Well, that cer-
tainly is the fact. As described in subsection A above, Respon-
dent-Employer’s Chicago facility occupies a city block
bounded by “city streets,” most particularly by South Kilbourn
Street on the facility’s east side. So, Kuliczkowski’s inference,
from what Escobedo had said on July 12, is a quite correct one.
If one left the premises, one had to go onto a city street. Boyle
said that employees should not leave the premises during work
time. Employees should not be driving on city streets during
work time. And, as pointed out in the immediately preceding
paragraph, the only reason employees had been doing that, as
of July 12, had been to drive on South Kilbourn Street after
punching or clocking in at the beginnings of their shifts and, in
addition, to drive on South Kilbourn back to the main building
to punch out at shifts’ end. Indeed, Florian never claimed spe-
cifically that he had not so understood that that was what Esco-
bedo had meant by the July 12 recitation of what Boyle had
said.
In fact, Florian never disputed any of the foregoing testi-
mony about the July 12 meeting. He never denied having been
at that unit meeting. He never denied that, at that meeting, he
and others in attendance had been told that Boyle would be
more strictly enforcing work rules. He never denied having
been informed, specifically, that gambling would no longer be
tolerated. He never denied having been informed, specifically,
that driving off the premises during work time would no longer
be tolerated. For that matter, though called as a witness during
the General Counsel’s case-in-chief, Crylen—a witness clearly
sympathetic to Florian’s situation—was never called as a rebut-
tal witness. There is no evidence, nor was there a representa-
tion, that Crylen was not available to testify during rebuttal.
Consequently, Crylen never disputed having been present dur-
ing the July 12 unit meeting, nor that the foregoing statements
had been made during that meeting.
There are a number of reasons why a witness might not be
called during rebuttal: realization that the other side’s evidence
presented is truthful and cannot be truthfully rebutted, concern
that a potentially rebutting witness may testify untruthfully,
concern that such a witness’s untruthfulness might be revealed
through cross-examination during rebuttal, a genuine belief that
the other side has failed to meet its burden and rebuttal evi-
dence is unnecessary. At the decision-making stage, however,
there is no room for speculation concerning why evidence has
not been rebutted. The only question is whether or not evi-
dence has been rebutted. As to that determination, “a litigant’s
failure to buttress its position . . . is always indulged in at the
litigant’s own risk.” Lujan v. National Wildlife Federation, 497
U.S. 871, 897 (1990).
Here, at best Florian had denied only generally having been
aware that driving off the premises, to go between buildings
while on the clock, would no longer be tolerated by new Plant
Manager Boyle. Florian did not deny with specificity having
heard the statements made by Escobedo during the July 12 unit
meeting. Nor, for that matter, did Florian deny with specificity
the above-described statements which Escobedo testified that
he had made to Florian, about driving off the premises, before
that July 12 meeting. The testimony concerning those state-
ments to Florian was specific and detailed. I conclude that
credible evidence does show that Florian had been put on no-
tice by Respondent-Union that driving between buildings, after
having clocked in and before having clocked out, would no
longer be tolerated by Respondent-Employer. As will be seen
in the immediately following subsection, that is not the only
evidence of such notice having been provided to Florian before
August 4.
G. Suspension of Florian on August 4
As stated in subsection A above, on August 4 Florian was
suspended for having violated work rule 11. More specifically,
he was suspended for having driven on South Kilbourn from
the annex to the main building on August 3 to punch out at the
end of his work shift. As set forth in subsection F above, Boyle
had told Respondent-Union’s officers that he would no longer
tolerate employees doing that. So, the crucial question at this
point is not what had been occurring prior to Boyle’s state-
ments concerning such conduct. As pointed out in subsection F
above, Boyle had become the new plant manager for the Chi-
cago facility. Nothing in the Act prohibited him from prohibit-
ing practices and procedures that had previously been tolerated.
Arlington Hotel Co., 278 NLRB 26 (1986); Frierson Building
Supply Co., 328 NLRB 1023 (1999). See also, Plair v. E.J.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1190
Brach & Sons, Inc., 105 F.3d 343, 349 fn. 3 (7th Cir. 1997). As
a result, no weight can be accorded to the testimony regarding
what employees had been doing prior to Boyle’s meeting with
Damron, Escobedo, and Robinson, and prior to the posting of
the revised work rules dated July 13.
Nevertheless, testimony was presented in an effort to show
that Respondent-Employer had continued tolerating employees
driving on South Kilbourn between buildings, after having
punched in and before having punched out. Based upon that
evidence, it is argued that Respondent-Employer had acted
inconsistently when it suspended Florian on August 4 for doing
something that, it is urged, the evidence shows that Respon-
dent-Employer had continued to tolerate.
Florian testified that he had continued doing so, as had “the
shipper . . . that I worked with,” Roy Hurd. Florian further
testified that other employees, who worked in the annex, had
continued driving between buildings, after having clocked in
and to clock out, he identified White, Crylen, Escobedo, Archie
Oliver, Ralph Nelson, and George and Ricky Hollins, as well as
Hurd. White agreed that, whenever he had worked in the an-
nex, he had stopped at the main building, punched in on the
timeclock, and gotten back into his car and driven on South
Kilbourn to the annex. After work, testified White, he had
reversed that trip. As had Florian, White identified Nelson,
Hurd, Oliver, Escobedo, and George Hollins as other employ-
ees whom he had seen punching in at the main building and
driving to work in the annex, as well as driving back to the
main building to punch out at shifts’ end.
Interestingly, called in support of the complaint’s allegations,
Crylen testified that he (Crylen) had not worked in the annex
since early 1996 and he never testified that he had driven be-
tween buildings during July of 1998, contrary to Florian’s
above-mentioned identification of Crylen as one employee who
had continued to drive between buildings while on the clock.
Yet, Crylen did testify that he had seen Florian, Oliver, Nelson,
Escobedo, Hurd, and John Dresden doing so.
Some of that testimony by Florian, White, and Crylen is dis-
puted. Escobedo denied flatly that he had driven between
buildings while on the clock, after Boyle had said that such
conduct would be prohibited. George Hollins denied that he
had driven between buildings while on the clock on any day
during 1998. Furthermore, George Hollins denied that Oliver
had done so: “I never seen him drive around. We always park
our cars and walk over.” Ricky Hollins, who at one time had
ridden to and from work with his brother George, testified that
he had stopped driving between buildings “[a]fter they [had
been] told Jim was going to enforce the work rules.”
Conversely, however, third-shift shipping clerk Nelson testi-
fied that he had continued driving between buildings, after
punching in and to punch out, throughout the summer, at least
until Florian’s suspension. Day shift shipping clerk Hurd gave
testimony that tended to straddle both sides of the issue, but in
the end seemed to show that he had continued doing that until
Florian’s suspension. First, Hurd testified that he had stopped
driving between buildings after hearing that the work rules
were going to be enforced. Then he testified that Florian was
not still employed when he (Hurd) had ceased driving between
buildings. That is, he had gone on vacation “either the end of
July or first of August,” and “when I came back from vacation
Chester was going. And that’s when I quit parking my car in
the parking lot.” But, then, he reiterated his testimony that he
had begun walking between buildings, to punch in and punch
out, even before Florian had been suspended. Even later, how-
ever, Hurd testified, “When I went on vacation they said they
were going to enforce their rules. So when I came back I didn’t
drive around no more.” In fact, discussed below are certain
deliveries made in his car by Hurd to the main building. So, it
seems fairly clear that he had been driving between buildings
after July 13.
Now, if Respondent-Employer had been tolerating such con-
tinued conduct after July 13, but then had suspended Florian for
engaging in conduct which was being tolerated, at least a facial
inconsistency arises from those two facts. In proper circum-
stances disparity of treatment can be one indicium, perhaps a
determinative one, of unlawful motivation. New Otani Hotel &
Garden, 325 NLRB 928 fn. 2 (1998). See also Yesterday’s
Children, Inc. v. NLRB, 115 F.3d 36, 48–49 (1st Cir. 1997).
So, had Florian and other employees had been engaging in the
same conduct—driving on South Kilbourn between buildings
after punching in and before punching out—but only Florian
was disciplined for having done so, that could be an indication
“that this was not the actual reason [Florian] was [suspended
and] fired.” EEOC. v. HBE Corp., 135 F.3d 543, 553 (8th Cir.
1998).
Of course, that does not necessarily mean that the actual rea-
son had been rooted in activity by Florian which is protected by
the Act. “Nevertheless, an inference of union animus based
upon disparate treatment can be made if the only difference
between two differently treated employees is the illegitimate
criteria at issue (i.e., union activity).” (Citation omitted.)
Asarco, Inc. v. NLRB, 86 F.3d 1401, 1408 (5th Cir. 1996). The
fact is that there has not been a credible showing here that any
disparate treatment of Florian had been rooted in even the least
concern by Respondent-Employer about Florian’s internal union
activities (having tried or intending to try to run for unit office),
nor that Respondent-Employer was concerned in the least by
currying favor with any supposed desire by Respondent-Union,
particularly Damron, to have Florian fired because of that inter-
nal union activity. Indeed, there is neither credible nor objective
evidence that any officer of Respondent-Union, including Dam-
ron, had ever made any effort to have Florian discharged by
Respondent-Employer. At this point, however, discussion is
concerned with certain points more directly related to driving
between buildings between July 13 and August 3.
First, as described in subsection E above, there is no question
that Boyle came to the Chicago facility to try clearing up, as
Drufke and White acknowledged, the unsatisfactory situation
which existed there. But, the unsatisfactory situation was not
that employees had been clocking in and then driving on South
Kilbourn to the annex. Nor was it that employees had been
driving on South Kilbourn from the annex to punch out on the
main building’s timeclock.
As also described in subsection E above, the problems at
Chicago existed on a much broader front. Nonobservance of
work rules may have contributed to those overall problems. So
far as the record reveals, however, nonobservance of work rules
PRECOAT METALS 1191
was not viewed by Boyle as even a significant contributor to
the problems which needed correction. Certainly, driving be-
tween buildings while on the clock has not been shown to have
been regarded as contributing, even in the least, to the unsatis-
factory situation, as Boyle had viewed it. In fact, there is no
evidence whatsoever that, when he arrived at the Chicago facil-
ity, Boyle had even been aware that employees there were driv-
ing on South Kilbourn between buildings while on the clock.
To the contrary, so far as the evidence discloses, Boyle had not
become aware that employees might be doing that until Esco-
bedo raised a question about such conduct, during the meeting
described in subsection F above.
Second, Boyle included strict enforcement of work rules as
one feature of his philosophy for correcting poorly performing
operations. Yet, as described in subsection E above, it was
hardly the only aspect of his philosophy. Consistent with his
past approach in poorly-performing facilities, Boyle set out to
put in place a number of corrective measures at the Chicago
facility. Only one of those measures involved the work rules
there. And given what was said the immediately preceding
paragraph, driving on South Kilbourn while on the clock had
not initially been a specific target of those corrective measures.
Those two points provide a backdrop for the third point:
even after Escobedo questioned whether employees would be
allowed to continue driving on South Kilbourn, after clocking
in and before clocking out, and even after Boyle answered
negatively to Escobedo’s question, there is no evidence that
Boyle elevated concern about such conduct to the pinnacle of
his efforts to correct operations at Respondent-Employer’s
Chicago facility. Indeed, as an objective matter, while Boyle
identified those brief driving trips as posing safety, liability and
production problems, there is no basis for concluding that pre-
venting continuation of such brief driving trips would somehow
improve the Chicago facility’s performance. At best, discon-
tinuance of those trips would be but one feature of overall
stricter enforcement of work rules, but not one that had some
sort of independent significance for improving Chicago opera-
tions—one that would naturally have led Boyle and Moore to
set aside all other corrective efforts to run daily to the time-
clock, and to direct other supervisors to run daily to the time-
clock, to check on whether employees were driving on South
Kilbourn after clocking in and before clocking out.
That latter point—that, as an objective matter, driving be-
tween buildings while on the clock was not seemingly a signifi-
cant problem for Boyle, as of the time that he met with Re-
spondent-Union’s officials—tends to be reinforced by the small
number of employees—”[s]hipping clerk, a loader and . . . also
. . . a paint room attendant over there at times,” testified
Focht—who worked in the annex. That is, as an objective mat-
ter, those employees were so few in number that their conduct,
independent of the conduct of other Chicago employees, was
unlikely to be viewed by Boyle as contributing significantly to
the problems at Chicago in need of correction. In fact, even
after Escobedo had focused on that driving for Boyle, there is
no evidence that Boyle or Moore had viewed such conduct as
so significant that, to improve Chicago performance, immediate
efforts had to be made to put a stop to it. In fact, Mahoney
testified that it had not been until after Florian was suspended
or discharged that “it was explained to me that [Work Rule 11]
was intended on being you cannot get in your car at all while
you’re on the clock.”
Of course Boyle and Moore might be faulted for not having
made a more affirmative effort to notify employees that they no
longer could drive on South Kilbourn between buildings after
clocking in and before clocking out. However, the Act is not
intended as some sort of vehicle for applying best-management
techniques. Boyle had given an answer to the question of an
officer of Respondent-Union, the entity with which he was
supposed to be dealing under the Act. Boyle had told Respon-
dent-Union’s officers to spread the word to employees about
what he had said to them in the meeting. Boyle had allowed
time for those officers to do so, before beginning to strictly
enforce new work rules on July 13. Against that background, it
was hardly illogical for him to conclude that his position, on
driving on South Kilbourn between buildings while on the
clock, would be communicated to employees, along with other
statements which he had made during the meeting—as, it is
uncontested, did ensue, both during an individual conversation
between Escobedo and Florian and, as well, during a unit meet-
ing on July 12 that Florian had attended.
Fourth, although some employees, including Florian, did
continue driving on South Kilbourn between buildings while on
the clock, there is only minimal evidence that Respondent-
Employer’s supervisors might have seen them doing so.
Florian testified that he had done it with Boyle “standing there
many a times,” and, also, “[i]n front of” Mr. Mahoney. Yet,
Florian was unable to specify the days when Boyle had assert-
edly seen him doing that: “Specific days, no. But I would say
many times in July.” That testimony hardly establishes that
Boyle had actually noticed or seen Florian making such brief
driving trips after July 13. A more interesting aspect of
Florian’s testimony is his omission of Moore as having seen
him doing that. As described below, it is uncontested that
Moore did see Florian making one of his trips, from the annex
to the main building at shift’s end, and, further, had told Florian
to stop doing that because such conduct violated work rules.
Florian was not the lone witness to testify about supervisory
observance of parking at the main building, walking in to punch
the timeclock, returning to the car, and driving to Annex, nor
the only witness to testify abut supervisory observance of return
trips at shifts’ end. Nelson testified that, “during the summer of
1998,” he had been observed driving between buildings to
clock in and out, by “Bob Buntin, Jack Focht, Dan Mahoney,
Mr. Boyle, Robert Moore.” Asked how many times he had
been observed by Boyle during “June and July,” Nelson an-
swered, “Oh, I don’t know. Five, six times.” With regard to
Moore, Nelson testified that, “in June or July of 1998,” there
had been, “I don’t know. Maybe three or four times,” when
Moore had been standing with Boyle when he (Nelson) drove
up to the main building and went in to punch out.
Now, Nelson was a rebuttal witness, meaning that he ap-
peared after Respondents’ cases-in-chief and, consequently,
after evidence had been received about Boyle’s meeting with
Damron, Escobedo, and Robinson, and about the events which
led to posting of the revised work rules on July 13. The signifi-
cance of that date should have been obvious by the time rebut-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1192
tal commenced. Against that background, general testimony
about “the summer of 1998” and “June or July of 1998” obvi-
ously was not sufficiently specific to show that Boyle and/or
Moore had knowledge after July 13 that Nelson was continuing
to drive on South Kilbourn from the annex to the main building
to punch out.
A similar problem arose when Crylen attempted to supply
evidence of supervisory knowledge of continued driving on
South Kilbourn between buildings while on the clock. He testi-
fied that he had observed employees doing that between Boyle
and Moore’s arrival in Chicago and when he (Crylen) left em-
ployment with Respondent-Employer on approximately August
1. Crylen further testified that he thought management knew
employees were making those brief drives “[b]ecause they saw
them [the driving employees] from the open dock doors.” Ac-
cording to Crylen, he knew of those observations because,
“[s]ometimes I was standing on the dock, I saw them.” Asked
for the identities of those management people, however, Crylen
identified only “George Hall.” As to Hall, Crylen testified,
“Well, I happen to be standing there talking to him at the time.”
Which employee was it who supposedly had driven up on that
occasion? “I don’t remember,” testified Crylen. When did that
occur? “No, I don’t remember a date,” Crylen testified. In
short, the incident could have occurred after July 13, but it
could also plausibly have occurred before that date.
In an effort to demonstrate Respondent-Employer’s knowl-
edge of continued driving on the clock, a somewhat different
approach was taken when Phillips appeared as a witness. He
testified that, after starting work, he would move his car to a
better parking location, once the outgoing shift had left: “I
would just run out there and get my car moved real quick,”
during the summer of 1998, through July. “Yes, yes they did,”
management personnel, see him doing that, testified Phillips.
Asked which management persons had purportedly seen him,
Phillips seemed to be struggling to come up with some names.
“Of my personal knowledge, yeah, there are people that I’ve
seen while I was moving my car, so, you know, I’m sure that
they saw me,” he began. Only after having gone through that
did Phillips list Focht and foremen Buntin, Wayne Joseph
Dedina, Walter Pulkowski Sr., Hall, and Mahoney.
Now, none of those individuals—some of whom appeared as
witnesses, in Mahoney’s case for the General Counsel—
contradicted Phillips. Still, the general unreliability of his tes-
timony, as reviewed in preceding subsections, and the quoted
prefatory statements before he identified them—appearing to
have been made to buy himself some time to think of some
names to supply—leave in doubt the reliability of Phillips’s
testimony about which supervisors had purportedly seen him
moving his car.
Furthermore, review of all Phillips’s testimony about moving
his car leads to consideration of a fifth factor in connection with
the asserted inconsistent treatment of Florian. As he was de-
scribing how he went about moving his car, Phillips explained
“there were times even that I, you know, I said [to a supervi-
sory person who had been present], hey, I’m going to move my
car real quick. I’ll be right back. You know, just let them
know what I was doing when I was running outside.” Now,
work rule 11 prohibits “[I]eaving company premises without
permission of supervisor,” and, obviously, telling a supervisor
that he intended to leave the premises, and not hearing an ob-
jection, would naturally be construed by an employee as con-
ferring tacit permission. After all, if a supervisor did not intend
to allow Phillips to move his car, that supervisor would obvi-
ously have said as much to Phillips.
There also were situations when any observing supervisor
would naturally conclude that an employee had received permis-
sion, from someone else, to be driving while on the clock.
Third-shift shipping clerk Nelson testified that, during the sum-
mer of 1998, he had delivered “bill[s] of lading and bills for
things that came in” from the annex to “five different places” in
the main building’s office: “I’d deliver them around to the dif-
ferent women and then come out of the office and wait ‘til 8:00
o’clock and punch out and go home.” Day-shift shipping clerk
Hurd testified that he had seen Nelson “drive around bringing
the rest of the paperwork to the front office.” Moreover, Hurd
testified that whenever someone asked for the bills of lading that
came up on the annex printer during his day shift, he would
deliver them to the main building’s office by driving those bills
over at shift’s end. Apparently, in addition, sales department
personnel would occasionally ask Hurd to bring boxes of paper
or other materials, stored in the annex, to the main building. On
those occasions, as he and Nelson did when delivering bills to
the main office, Hurd would put the boxes of paper and other
materials in his vehicle and drive them over to the main build-
ing, park by the docks or bays, and walk those items to where
they were wanted, after which he walked to the timeclock,
punched out, returned to his vehicle and drove away.
The important thing about Nelson’s and Hurd’s testimony,
described in the immediately preceding paragraph, is that when
they were making deliveries of items to the main building, they
were not simply driving over from the annex to the main build-
ing to punch or clock out. They were performing duties—
making deliveries to main building personnel—that resulted in
their shifts ending or concluding in the main building on those
occasions. At that point, their situations did not differ from
those of main building employees. When their shifts ended,
they walked over to the timeclock, punched out, got into their
vehicles and drove away. On such occasions, Nelson and Hurd
had not come to the main building for no reason other than to
punch out.
As pointed out above, leaving the premises during “sched-
uled working hours” is prohibited by work rule 11 only if an
employee does that “without permission of supervisor.” It
seems likely that any supervisor—most specifically, Boyle and
Moore—seeing Nelson or Hurd parking and coming into the
building with bills, boxes of paper or other materials, would
naturally assume that Nelson and Hurd had driven to the main
building with supervisory permission to do so—so that they
could make their deliveries there. As to other employees who
may have been observed driving from the main building after
having punched in, or driving to the main building before
punching out, there is really no particularized evidence that
either Boyle or Moore had actually seen any of them except
Florian, as described below, after July 13. Even had Boyle or
Moore observed them, it would not have been so illogical for
Boyle and Moore to conclude that those employees either had
PRECOAT METALS 1193
duties to perform in the main building or had their supervisors’
permission to drive to the main building.
As to the latter point, Focht pointed out with respect to
Florian’s driving between buildings, “If he was reporting to
Bob [Buntin] and he was driving over, I take it that Bob gave
him permission to do it. He just wouldn’t do it on his own.”
“Yes, it is” an assumption on his part, Focht agreed. Yet, if it
was so logical for Focht to have made such an assumption, as
he claimed that it was, then there is no basis in the record for
concluding that Boyle and Moore would not have made a like
assumption when one or both of them observed an employee
pulling in a vehicle away from or up to the main building. That
is, based on an assumption that those employees “wouldn’t do
it on [their] own,” it would not have been illogical for Boyle
and/or Moore to assume, as had Focht, that those employees
had received their supervisors’ permission to drive between the
buildings, possibly because of some business-related reason
such as led Nelson and Hurd to drive there to make deliveries
from the annex. That is particularly logical in view of the fact,
as pointed out above, that driving between buildings has not
been shown to have been regarded by Boyle as a particular
problem necessitating correction at Chicago—a problem that
needed to be eliminated to improve operations there.
In sum, although there is evidence that Boyle had said that
he regarded driving on South Kilbourn Street between build-
ings while on the clock to be prohibited by work rule 11, and
while there is evidence that at least some employees may there-
after have continued engaging in such conduct, the evidence
fails to show employer-toleration of such continued conduct
after July 13. To the extent that there is testimony about super-
visors observing employees clocking in and driving from the
main building, and/or driving up to the main building and
clocking out, such testimony was not so particularized that it
can be fairly concluded that the incidents described had oc-
curred after July 13. Beyond that, some of that testimony
shows that employees, such as Nelson and Hurd, had not been
driving to the main building for no reason other than to punch
out at shift’s end. They were making deliveries to offices in the
main building. To the extent that one or more supervisors may
have seen those employees then punch or clock out, as an ob-
jective matter that would appear indistinguishable from what
was being done by other employees who completed their shifts
performing operations support duties in the main building.
Punching out there was no more than an incidental aspect of
whatever work those employees were expected to perform in
the main building, whether that work entailed duties taking 4
hours or 4 minutes to complete.
To be sure, Boyle had announced that he intended to strictly
enforce work rules and Escobedo’s question at least suggested
to Boyle that some employees were driving on South Kilbourn
between buildings after having punched in and before having
punched out. Even so, having told Respondent-Union’s offi-
cers that work rule 11 prohibited such conduct and having told
those officers to spread the word of what had been said to them
during their meeting with Boyle and Moore, the evidence dis-
closes no particular reason for Respondent-Employer to start
watching to ascertain if employees were continuing to drive
between buildings while on the clock. It hardly was illogical
for Boyle and Moore to have indulged the same assumption as
Focht acknowledged having indulged: that employees would
drive between buildings while on the clock only if they had
“permission to do it,” and that employees “wouldn’t do it on
[their] own.” Certainly there is no evidence of any specific
reason why it would have been illogical for Boyle to reach a
contrary conclusion.
So far as the evidence discloses, Boyle had not come to Chi-
cago with any knowledge that driving on South Kilbourn be-
tween buildings while on the clock had contributed, in the
slightest degree, to poor performance experienced at the facility
located there. Nor can it be said that Escobedo’s question
would have naturally alerted Boyle that some sort of special
effort would have to be made to begin watching the relatively
few employees involved, to ensure that they would no longer
drive between buildings while on the clock. There is simply no
basis in the record for a conclusion other than that, viewed from
a July perspective, Respondent-Employer would foresee need
to begin policing employee-conduct at shift-beginnings and
shift-ends.
All else aside, however, in the final analysis there is unre-
futed specific evidence of at least one occasion when Moore
had taken action to warn an employee—Florian—that driving
from the annex to the main building to clock out was prohib-
ited. Moore testified that, in “mid-July,” he had been “standing
in the—by the time clock area by the steps coming out of the
office” when he “witnessed Mr. Florian driving around to the
front of the building.” According to Moore, “I had asked Mr.
Florian what he was doing as he was walking up to the stairs
where he had come from and he told me . . . that he was driving
around from the Annex building.” Moore testified that he said,
“Chester, this is to stop now. Don’t do it again and you’re vio-
lating a work rule.” In response, testified Moore, Florian “told
me that he’d been doing it before and that he’s going to have to
talk to Jack Focht about it,” or “he was going to check with
Jack Focht.” “I told him he didn’t work for Jack Focht[,] he
worked for me,” Moore testified, and, “That’s how it ended.”
By the time that Moore testified, during Respondent-
Employer’s case-in-chief, Florian had already testified during
the General Counsel’s case-in-chief. At that earlier point, dur-
ing direct examination Florian testified that “never” had anyone
from Respondent-Employer, at anytime, told him that there was
a problem with driving from the annex to the main building to
punch out. During cross-examination he further testified, “I
never seen nothing wrong with or a posting of a note or some-
body handing me something telling me, no don’t do that. Or
here’s a warning. Don’t do this no more. We don’t want that.
Never said.” However, as already pointed out, Florian was
never called as a rebuttal witness, though he clearly was avail-
able to testify at that stage of this proceeding.
Moore’s above-quoted description of his remarks to Florian,
and of Florian’s responses, was specific and detailed. As set
forth in subsection A above, a general or “blanket” denial does
not suffice, as a matter of law, to refute specific and detailed
accounts, such as that advanced by Moore. There seemed no
reason to conclude that, as he was testifying about that mid-July
exchange with Florian, Moore was not being candid. His ac-
count tends to be reinforced by the absence of any specific
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1194
denials of it. I credit Moore’s uncontroverted description of his
mid-July exchange with Florian. Given that conclusion, two
other points should be focused.
First, Moore specifically told Florian “you’re violating a
work rule.” So far as the evidence shows, Florian never chal-
lenged that statement nor, even, bothered to inquire to which
work rule Moore was referring. As already pointed out, work
rule 11 was the only rule that seemingly could have covered
“driving around from the Annex building,” the conduct which
Florian acknowledged that he was doing, when asked “what he
was doing” by Moore. In fact, it is of some significance that,
rather than telling Moore that he was punching or clocking out,
Florian had responded to Moore’s question by saying “driving
around from the Annex building.” Obviously, Florian under-
stood at that time the conduct to which Moore was making
reference, particularly as he had only recently been told twice
by Escobedo that such conduct would no longer be tolerated by
Respondent-Employer.
Second, when told by Moore not to “do it again and you’re
violating a work rule,” Florian responded that “he’d been doing
it before and that he’s going to talk to Jack Focht about it.”
Such an answer hardly portrays a willingness to discontinue the
conduct of driving between buildings while on the clock.
Surely Florian must have been aware, from the May postings
described in subsection D above, that Focht no longer super-
vised Chicago employees. Even had he not known Moore’s
title by mid-July, surely Florian must have understood that he
was being supervised by Moore. It simply is inexplicable that
an employee would tell a current supervisor that he (the em-
ployee) intended to talk to a former supervisor about a work
direction. On its face, his answer to Moore came close to being
a refusal to abide by Moore’s direction unless Focht confirmed
that direction.
Throughout this proceeding there seemed to be a tacit under-
lying attitude by employee-witnesses and by some current and
former managers that, having tolerated driving on South Kil-
bourn between buildings after punching in and before punching
out, Respondent-Employer was obliged to continue allowing
employees to engage in that conduct and, concomitantly, that
Boyle was being overly-picky in disallowing employees to
continue doing what they always had been doing. Such an
attitude is simply not countenanced under the Act. For, so long
as not done for discriminatory purposes, there is “room in the
law for a right of an employer somewhere, sometime, at some
stage, to free itself of continuing,” NLRB v. Eldorado Mfg. Co.,
660 F.2d 1207, 1214 (7th Cir. 1981), practices even though
previously tolerated. “An employer’s decision to enforce its
rule more stringently in the future is within its discretion and
does not suggest discriminatory treatment.” (Citation omitted.)
Camvac International, 288 NLRB 816, 821 (1988). In short,
Florian’s “had been doing it before” retort to Moore does not
constitute some sort of justification for continuing conduct
which had previously been tolerated, but which Florian was
being told would no longer be permitted.
Furthermore, there is no evidence concerning what was said
between Focht and Florian, after Moore had spoken to the lat-
ter. It is difficult to escape a conclusion that Focht told Florian
to ignore what Moore had said. For, Florian admitted that he
had continued driving on South Kilbourn from the main build-
ing to the annex after having punched in and, also, continued
driving on South Kilbourn from the annex to the main building
to punch out at shifts’ end. Consistent with some of what has
been said above regarding the absence of evidence of em-
ployer-toleration, neither Moore nor any other official of Re-
spondent-Employer seems to have been watching out to ascer-
tain if Florian was continuing to follow a course which
Moore—and Escobedo, as well—had told Florian violated a
work rule. So, Florian was able to continue getting away with
doing pretty much as he wanted in that respect—until the after-
noon of August 3, when Moore again happened to catch Florian
driving from the annex to the main building to punch out.
There is no evidence, particularized or otherwise, that Moore
had actually seen Florian driving on South Kilbourn from one
building to the other between mid-July, when it is uncontro-
verted that Moore had warned Florian not to “do it again and
you’re violating a work rule,” and August 3, when Moore ob-
served Florian arriving at the main building to punch out. As
pointed out above, among the supervisors Florian named as
having purportedly seen him driving between buildings “many
times in July,” Florian did not include Moore. As a result, there
is a somewhat firm basis for concluding that, in fact, Moore had
not observed Florian making daily car trips on South Kilbourn
from the main building to the annex after having punched in,
nor making daily car trips from the annex to the main building
to punch out.
Four witnesses—Florian, Moore, Damron, and Boyle—
testified about what had occurred shortly before 4 p.m. on Au-
gust 3. There are no contradictions among their accounts about
the initial segment of the overall sequence of events occurring
at that time on that date, but there are disparities in their ac-
counts of what ensued as that sequence of events progressed to
conclusion. Thus, shortly before 4 p.m. Boyle had gone to the
main building’s dock or bay area to enjoy a cigarette. As Boyle
stood there, Damron was arriving to begin his scheduled sec-
ond-shift duties. On his way to the timeclock to punch in,
Damron had to pass Boyle. Damron stopped, at least momen-
tarily, to exchange greetings, and perhaps converse briefly, with
Boyle. Before any meaningful conversation could take place
between them, Florian drove off South Kilbourn, parked by the
docks and got out of his car to punch out for the day.
Moore had happened to see Florian driving up to the main
building and walked over to Florian. According to Florian,
during direct examination, Moore “asked me where did you
come from? And I told him I came from the annex building
and I was just coming over to punch out. He says we got a
problem here, that you left company premises. I says, no, sir, I
did not. I’m just coming over to punch out and go home. He
told me we have a problem here.” During cross-examination,
Florian initially repeated that testimony. “That’s true,” he an-
swered, when asked if Moore had approached and asked where
he (Florian) was coming from. Later during cross-examination
he testified that Moore had said that Florian “left the company
premises. And I told him I didn’t. I just came from [the] build-
ing, from the Annex building to go to One.” As cross-
examination continued, Florian repeated that “he had asked me
PRECOAT METALS 1195
where I came from,” and “I told him I was coming from the
Annex Building. I was just coming to punch out.”
Before that last-quoted answer, there was some questioning
about use of the word “premises.” That seemed to disturb
Florian. As cross-examination continued after the answer last
quoted in the immediately preceding paragraph, Florian began
to back away from his earlier above-quoted testimony regard-
ing use of that term. After once more repeating that, “He had
asked me where I was coming from and he told me, well, you
left company premises,” Florian was asked specifically “did
Moore ask you or did he inform you that he observed you leav-
ing the premises?” Florian answered merely, “He had asked
me where I came from.” When the question was repeated—
“Did he then asked [sic]you or inform you that you had left the
premises?”—Florian answered in a manner that began to con-
tradict some of his above-quoted testimony: “I don’t remember.
I remember telling him what I’d done. But I don’t remember if
he had asked me if, you know.” Once more he was asked, “or
did he inform you that you had left the company premises?” “I
don’t remember,” Florian answered. Yet, quite clearly he ear-
lier had remembered Moore having said, “you left company
premises,” and “left the company premises.”
As discussed below, leaving the premises during worktime
would be the reason for his suspension. As cross-examination
progressed it appeared that Florian seemed to feel that his posi-
tion in this—or, perhaps, in some other—proceeding might
become compromised, leaving him at a disadvantage, were he
to admit that Moore had mentioned “company premises.” So,
he altered his account during cross-examination, claiming a
lack of recollection about Moore’s having utilized that phrase,
in an effort to attempt to diminish, if not retract, his earlier
acknowledgements that, in fact, Moore had spoken those words
on August 3.
For his part, Moore testified that he had “walked up to Ches-
ter and told him that I had warned him once about this and that
we had a problem and that I suggest to him get some union
representation.” Of course, that is exactly what, it is uncontro-
verted, had happened during mid-July. As set forth above,
Moore had “warned [Florian] once about” driving on South
Kilbourn from the Annex to the main building to punch out.
And that account by Moore, of what he had initially said to
Florian on August 3, was not challenged during cross-
examination, though probed during cross-examination was the
subject of whether prior warning had been mentioned once
Florian and Moore had walked to where Boyle and Damron
were standing. Nor was Moore’s testimony, about what he had
said when he “walked up to Chester,” contradicted during re-
buttal.
As mentioned above, Moore testified that he had not told
anyone about his mid-July warning to Florian: not other offi-
cials of Respondent-Employer, not any officers of Respondent-
Union. Even so, it is undisputed that the mid-July encounter
between Moore and Florian had occurred and, further, that
during it Moore had said specifically that driving between
buildings while on the clock violated a work rule. There is no
basis in the evidence for concluding that Moore had likely for-
gotten by August 3 what a few weeks earlier he had admon-
ished Florian not to do. Nor is there any reason in the record
for concluding that, by August 3, Florian would likely have
forgotten what he had been told by Moore, not to mention what
he had been told by Escobedo. In other words, Moore’s unre-
futed account of what he had said initially to Florian on August
3 is consistent with the uncontroverted overall sequence of
events from mid-July through near to shift’s end on August 3.
One aspect of the overall argument in support of the com-
plaint’s allegations, concerning Florian’s suspension and dis-
charge, is that Damron had likely prevailed upon Boyle to sin-
gle out Florian for suspension and discharge, because of the
latter’s past and projected internal union activities. Yet, while
they obviously had been in a position to see, and perhaps hear,
the initial phase of Florian and Moore’s August 3 encounter, it
had been neither Boyle nor Damron who had initiated what
Moore said to Florian. That is, there is no evidence that Moore
had spoken with either Boyle or Damron before approaching
Florian that day. Indeed, so far as the record shows, neither
Boyle nor Damron would have noticed or said anything to
Florian on August 3—likely assuming, as Focht had explained,
that whatever Florian was doing, he was not violating a work
rule in his drive to the main building—had not Moore chal-
lenged what Florian was doing. Boyle and Damron became
involved only after Moore had already done that.
Damron described what occurred in a manner that was not
corroborated by any one of the other three witnesses to what
took place near first shift’s end on August 3. As pointed out in
subsection A above, it appeared that most of the principal wit-
nesses, to a greater or lesser extent, at one or more points tried
to put their thumbs on the scales, by tailoring some of their
accounts. Damron seemed to be doing exactly that concerning
what had occurred on August 3, perhaps in an effort to avoid
possible criticism about appearing indifferent to what was be-
ing said to Florian by Moore—a criticism that, at least, Robin-
son seemed to be leveling at Damron for not having done some-
thing to aid Florian.
Damron agreed that he had to pass Boyle to get to the time-
clock. “As I was going to the time clock,” Damron testified,
Moore “hollered for me.” Then Moore “brought Chester over,”
according to Damron, and said to Florian, “here’s your union
official. Here’s your unit chairperson, president. Here he is.
Talk to him. Tell him,” or, “Tell him. Talk to him. You want
to talk to him, talk to him.” Florian merely shrugged his shoul-
ders, testified Damron. Damron further testified that Moore
had said a second time, “Here’s your committee men [sic],”
and, for a second time, “Chester looked at me and shrugged his
shoulders again. So I turned around and walked over to the
time clock.” “Not that I recall, no,” claimed Damron, had
Moore said what Florian allegedly had done. All things con-
sidered, that particular answer was virtually ludicrous on its
face, given what had been initially taking place between Moore
and Florian on August 3. And the other three witnesses’ ac-
counts reveal the lack of candor in such an answer.
In a sense there was some basis for Damron to have believed
that, while he and Boyle had been standing together, he (Dam-
ron) had been the object of Moore’s walk to the spot where he
and Boyle were standing. As pointed out above, Moore testi-
fied that he had told Florian “to . . . get some union representa-
tion.” And Florian testified that, after having said “we have a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1196
problem here,” Moore had said, “I’m going to take this up with
the union and Mr. Boyle.” Now, Moore had been production
manager at that time. There is no evidence whatsoever that, in
that capacity, he needed permission from Boyle before sus-
pending an employee. To the contrary, as set forth below,
Moore and Boyle both testified that it had been Moore, alone,
who had made the decision to suspend Florian on August 4.
Given those considerations, it seems likely that, when he ap-
proached Boyle and Damron on August 3, Moore’s true target
had been Damron, who happened then to be standing with
Boyle.
According to Florian, Moore said to Boyle and Damron, “we
have a problem here, that Chester has left company premises,”
or “we have a problem here, that Chester just left company
property,” or that Moore “had a problem with Chester,” or “we
have a problem here with Chester. He had left the company
premises.” “Yes,” answered Florian, when asked whether he
had known at that point that Moore believed that he (Florian)
had driven off Respondent-Employer’s premises. Florian testi-
fied that he had said to Boyle and Damron, “I came from next
door and performed my duties for the day and I was coming to
punch out and go home,” or “No, I did not sir. I just came from
the Annex Building. I’m just coming to punch out. I didn’t go
anywhere.” “That’s true,” answered Florian, when asked if he
had told Boyle that he (Florian) had driven his car around to
punch out. That answer should not be forgotten when evaluat-
ing Respondent-Union’s performance during the ensuing griev-
ance proceeding involving Florian’s suspension and, later, dis-
charge. Florian had admitted to Boyle having engaged in the
very activity for which he would be suspended. Further, that
was the very conduct which Boyle had earlier told Escobedo
would be regarded as encompassed by work rule 11, as set forth
in subsection F above.
In response to what he said to Boyle and Damron, testified
Florian, “Mr. Boyle had told me at that time, he would take it
up with Mr. Damron and that just punch out and go home for
the day.” There is corroborative testimony for that directive by
Boyle to “Punch out,” but there is no corroboration for
Florian’s testimony that Boyle had said “he would take it up
with Mr. Damron.” Given what occurred after Florian eventu-
ally punched out, it seems unlikely that Boyle had said any
such thing about Damron. Rather, that portion of his testimony
seems no more than another effort by Florian to connect Re-
spondents in some sort of plot to fire Florian.
During direct examination Boyle testified that “before [he
and Damron] even had a chance to talk, Mr. Moore came walk-
ing up with Mr. Florian,” and “told me he had caught Mr.
Florian off Company premises.” “At that point I told Chester
to clock out,” continued Boyle, “And Chester started to walk
away. He was about six feet away. And I started to walk in
that direction.” Boyle’s reason for taking that brief walk is
discussed below. At this point the significant testimony by him
is that, as he was walking in the direction of Florian, “I heard
Mr. Moore say he’d warned all you guys before.” During
cross-examination Boyle agreed that he had heard Moore say-
ing that to Damron. For his part, Damron denied that Moore
had said that to him.
There was one aspect of Boyle’s account which facially ap-
peared contradicted by his earlier testimony, given during an
arbitration proceeding, concerning the events of August 3. At
that time Boyle had testified, “Moore told me at that time—he
was actually talking to both of us—that he had caught Mr.
Florian breaking a work rule, second time he caught him. I
asked what he had done. He told me he was off Company
premises in his car.” Confronted by that earlier testimony,
Boyle conceded in this proceeding that Moore had not said on
August 3 “second time he caught him.” Of course, had Moore
said that on August 3, it would been an uncontested accurate
description of the situation: Moore had caught Florian driving
between buildings while on the clock during mid-July and Au-
gust 3 was, in fact, the second time that Moore caught Florian
doing so. Yet, Boyle admitted in this proceeding that, when
appearing during the arbitration, he had chosen to editorialize
when describing what Moore had said: “I heard that at the
arbitration. I put two and two together. I got four. And that’s
what I said.”
As will be seen below, Boyle actually got five, since Moore
testified that the mid-July warning had not been the one to
which he was referring on August 3. Nevertheless, shorn of
Boyle’s admitted false editorializing during arbitration, the fact
remains that in both that and the instant proceeding, he testified
that Moore had said that he caught Florian off company prem-
ises. As set forth above, Florian agreed that Moore essentially
had said as much to Boyle and Damron.
Moore also testified that he had made that statement to Boyle
and Damron on August 3: “I told Mr. Damron that I had
caught Chester Florian driving from one building to the next
without clocking out.” Moore further confirmed that account
when he testified, “I walked up to Boyle and Damron with
Chester and said that we have a problem here. Mr. Florian was
driving from one building to the next on company time without
a supervisors [sic] permission. We have a problem here.” Of
course, that pretty much corresponds with Florian’s and
Boyle’s accounts of what Moore had said when he reached
Boyle and Damron on August 3.
During the arbitration proceeding Moore testified that he
also had said that he had warned Florian once about driving
around the building and Florian had obviously ignored that
warning. As to that testimony, Moore testified during this pro-
ceeding, “I didn’t tell Mr. Boyle [that] at the time,” but instead
“may have told Mr. Damron,” as “we were still standing there”
while Boyle walked after Florian toward the timeclock. As
described above, of course, Boyle testified that, as he had
walked toward Florian, he had overheard Moore saying to
Damron that “he’d warned all you guys before.” Did that arbi-
tration testimony by Moore contradict his testimony in the in-
stant proceeding that he had not said anything to anybody about
his mid-July warning of Florian?
Not really. Moore testified that his testimony during the ar-
bitration, as well as his above-quoted testimony during this
proceeding about what he may have told Damron, did not refer
to the individualized mid-July warning of Florian. “I was refer-
ring to that I had warned all the employees about driving
around the building,” testified Moore, during the “May, June,
July 13th when I readvised all the work rules,” and when “I
PRECOAT METALS 1197
warned everyone of the work rules were going to be strictly
enforced.” Now, in the immediate wake of Respondent-Union’s
July 12 unit meeting, Respondent-Employer had reposted its
work rules on July 13. That unit meeting and that reposting of
work rules had occurred in the less-immediate wake of a meet-
ing during which Boyle, seconded by Moore, had specifically
told Respondent-Union’s officers that driving between build-
ings while on the clock, after having clocked in and before
clocking out, would be regarded as a violation of work rule 11.
All else aside, it is hardly illogical for an employer to assume
that a bargaining agent will communicate to employees it repre-
sents what their employer had said about application of work
rules. So, whether Moore had said on August 3 “warned all
you guys,” as Boyle testified, or “warned all the employees,” as
Moore testified, his remark corresponded to what, in fact, had
occurred. There had been a warning prior to August 3 concern-
ing application of work rule 11 to employees driving on South
Kilbourn after punching in and to punch out. Obviously,
Florian was a member of the class “all you guys” or “all the
employees.”
In sum, even though no weight can be accorded Damron’s
account of what had been said on August 3, the other three
witnesses’ accounts show that Florian had driven on South
Kilbourn to the main building to punch out, that Florian had
been observed doing so by Moore who challenged Florian’s
conduct, and that the two of them had walked to where Boyle
and Damron were standing where Moore complained that
Florian had been off the premises while on the clock. It had
been Moore, not Boyle, who observed and understood Florian’s
infraction of work rule 11. It had been Moore, not Boyle, who
spontaneously challenged Florian about what the latter had
done. There is no direct evidence, nor basis for inferring, that
Moore had checked with Boyle or Damron before challenging
Florian. That challenge to Florian’s conduct was consistent
with Boyle’s generalized desire for stricter enforcement of
work rules and with Respondent-Employer’s by-then specifi-
cally-articulated position on the scope of work rule 11.
There is one other aspect to the August 3 encounter that must
be covered, given the fact that it arises in connection with
Boyle’s termination decision, as discussed in the immediately
following subsection. As described above, Florian testified that
he had been directed to “punch out and go home for the day” by
Boyle. Boyle also testified that he had “told Chester to clock
out,” after which Florian started to walk toward the timeclock.
However, testified Boyle, Florian did not clock out. Instead,
Boyle testified, “he walked over to the time clock, picked up
his time card,” but “didn’t clock out. So I walked over and told
him to clock out again.” It was during that brief walk that,
Boyle testified, he had overheard Moore’s remark to Damron
about having “warned all you guys before.” According to
Boyle, Florian still did not clock out, though having been told
by Boyle for a second time to do so. Boyle testified that he
repeated his direction to “clock out” for a third time, asking
Florian, “Why aren’t you clocking out.” Florian replied, testi-
fied Boyle, that it was “not 4:00 o’clock yet.” “I just turned
around and walked back in the office,” Boyle testified. How-
ever, as had Moore with regard to his mid-July warning to
Florian, Boyle did not forget what took place in connection
with his direction to Florian to punch out.
During direct examination Moore corroborated that testi-
mony by Boyle. During cross-examination it was pointed out
to Moore that, in a deposition given on December 14, 1999, he
had testified to having “once” told Florian to clock out. But,
pressed on that point during the deposition’s taking, Moore had
somewhat backed away from that initial “once” answer: “I
think I did, yes.” (Emphasis added.) Testifying in this pro-
ceeding he explained that, after having the deposition taken, “I
thought about it and I didn’t clock, I didn’t tell him to clock
out.” That explanation seemed to be a genuinely-advanced one.
Nothing in the record suggests any reason for Moore to have
been dissembling on that point when his deposition had been
taken. The suspension result would have been the same
whether Florian had ignored three directions by Boyle to punch
out or, alternatively, had ignored two directions by Boyle and
one by Moore to do so. Most significantly, Florian never de-
nied that on August 3 he had disregarded three directives to
punch out for the day.
As pointed out in subsection A above, under article XIII,
Section 3 of its 1995–1999 collective-bargaining contract, Re-
spondent-Employer could not simply discharge an employee. It
first had to suspend an employee to allow Respondent-Union
opportunity to investigate the situation and, if it felt one was
warranted, request a sit-down meeting to possibly head off
termination. Before leaving work on August 3, Moore testified,
he had decided to suspend Florian. He denied having discussed
that decision with anybody. More specifically, Moore denied
having discussed his suspension-decision with Boyle or with
Respondent-Union. Nothing in the record contradicts those
denials.
Boyle denied having participated in the decision to suspend
Florian. During cross-examination it was pointed out to Boyle
that he had testified during arbitration on October 27, 1999,
“The next morning [August 4], we made a decision to, based on
the fact that he had done it twice, to indefinitely suspend him.”
(Emphasis added.) In this proceeding, however, Boyle testified
that, by his use of “we” in the arbitration, he had been “refer-
ring to the Company’s position.” That is not an inherently
unreasonable explanation. No evidence was adduced to show
that Boyle could not have intended “we” in any other sense.
Nor is there any other evidence even indicating that Boyle had
spoken with Moore, at all, during the remainder of the day on
August 3, nor during the morning of August 4 before Moore
suspended Florian. “I went home that evening [August 3],”
testified Boyle, and “[w]hen I come [sic] back the next after-
noon, Mr. Moore told me that he had suspended Mr. Florian.”
Consistent with his uncontested mid-July warning to Florian
and, as well, with the event that transpired shortly before 4 p.m.
on August 3, Moore prepared a memorandum to Florian which,
in substance, states, “As of August 4, 1998 you are being place
[sic] on indefinite suspension in violation of Work Rule 11.” It
was handed by Moore to Florian shortly after the latter reported
for work, and began working, on Tuesday, August 4. That led
to a sequence of events described in the following subsection.
Given the extensive background evidence covered in this and in
preceding subsections, this might be a good point to take some
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1198
stock of what the overall evidence shows as of the time that
Florian was given notice of his suspension.
The argument in support of the allegation that Florian’s sus-
pension had been unlawfully motivated is, in essence, that
Boyle had been persuaded to suspend Florian by Damron who,
in turn, sought to retaliate against Florian for having attempted
to run for unit chairman during 1997 and, also, in an effort to
head off another effort by Florian to do so during 2000. But,
there is no evidence that Boyle had made the decision to sus-
pend Florian. That decision had been made by Moore. It had
been Moore, not Boyle, who had spontaneously challenged
Florian when the latter arrived at the main building on August
3. The basis for that challenge was the earlier uncontroverted
warning to Florian by Moore that driving to the main building
to punch or clock out was not allowed and violated the work
rules. That warning, in turn, had been based upon specific
notice by Boyle, seconded by Moore, to Respondent-Union’s
officers that driving between buildings while on the clock was
not going to be tolerated because it was regarded as proscribed
by work rule 11. Boyle gave Respondent-Union opportunity to
notify unit members of what he had said and, in fact, Escobedo
had twice communicated to Florian that driving between build-
ings, after clocking in and before clocking out, would no longer
be tolerated. As concluded above, there is no credible evidence
that, after July 13, Respondent-Employer had knowingly toler-
ated that conduct. While violation of the prohibition on driving
between buildings was not the greatest possible infraction that
an employee could commit, it was a prohibition that was rooted
in valid business considerations and, in any event, was a prohi-
bition that had been imposed and had been communicated to
Florian both by an officer of Respondent-Union and by Re-
spondent-Employer’s production manager prior to August 3.
On the flip side, there is no objective evidence that, had he
been allowed to run during 1997, Florian’s candidacy posed
any threat to Damron’s continued incumbency as unit chairper-
son. Nor is there any objective evidence that possible candi-
dacy by Florian during 2000 would present any threat to Dam-
ron’s reelection as unit chairperson, assuming that Damron
would be running for reelection during 2000. In fact, Florian’s
statements of interest in, and intention to, run in 2000 were
seemingly no different that similar expressions of intention to
run for unit office expressed from time to time by other em-
ployees. True, there is evidence that Damron did not think
much of Florian and was not reluctant to voice that opinion,
just as Damron did regarding other employees for whom he had
little regard. However, there is no credible evidence that Dam-
ron harbored animus toward Florian for past or projected at-
tempts to run for unit chairperson. More particularly, contrary
to the unreliable evidence provided on the point by such wit-
nesses as Focht, there is no credible evidence that Damron ever
attempted to have Florian fired or disciplined in any other man-
ner. Nor is there any credible evidence that Damron had been
involved in Moore’s decision to suspend Florian, much less
caused or attempted to cause Moore to suspend Florian.
In sum, the credible evidence will not support a conclusion
that Respondent-Union had caused or attempted to cause
Florian’s suspension on August 4. Nor will it support a conclu-
sion that Respondent-Employer suspended Florian on August 4
in an effort to accommodate Damron, or any other union offi-
cial. There had been no other statutorily-protected activity by
Florian, other than having attempted to run for union office
during 1997, and possibly attempting to run in 2000, which can
be said to have motivated a suspension that would have been
unlawful under the Act. In consequence, the credible evidence
fails to support a conclusion that Florian’s suspension had been
motivated by any consideration proscribed under the Act. Even
if such a showing can somehow be said to have been made, a
preponderance of the credible evidence supports the conclusion
that Florian would have been suspended on August 4 for having
engaged in conduct which he had been warned violated a work
rule and had to stop. He chose to ignore those warnings. He
did so at his own peril. It has not been credibly shown that
Florian would not have been suspended on August 4 had he not
tried to run for union office a year-and-a-half earlier or had he
not expressed interest in, or intention to, try running again a
year-and-a-half later.
H. Discharge of Florian on August 10
It was Boyle who made the decision to discharge Florian.
As should come to probably the great surprise of nobody by
this point, however, evidence was adduced concerning other
events which supposedly shows unlawful actions and motives
by Respondents.
As pointed out in the immediately preceding subsection,
Florian was given his suspension notice by Moore shortly after
Florian began work on Tuesday, August 4. The conversation
between them was brief, though not altogether uncontroverted.
Florian testified that he was handed the suspension notice by
Moore who said nothing as Florian read it. Moore testified that
he had “told [Florian] that I’d warned him once about this of-
fense and this was something I had to do.” As set forth in the
immediately preceding subsection, it is undisputed that, in fact,
Moore had warned Florian before August 3 not to drive be-
tween buildings while on the clock.
After reading the notice, testified Florian, “I had told Mr.
Moore, what’s this all about? And he says, you left company
premises and that you’re indefinitely suspended and to leave
the plant.” In response, according to Florian, “I had told him I
had done nothing wrong. I tried to explain to him that I was
just going from building one to building two,” or, “Mr. Moore,
that’s all I did was drove from Building 2 here to Building 1.
And I didn’t go off of company premises.” Had Florian actu-
ally said the latter, Moore obviously would have understood
that Florian was not being truthful. He had driven off the prem-
ises on August 3. He had driven on South Kilbourn Street. It is
undisputed that South Kilbourn Street is not part of Respon-
dent-Employer’s premises; it is a public thoroughfare.
Florian’s description of the conversation continued. “I had
asked him if I could sit down with him and Mr. Boyle and hash
this out before it got blown out of proportion, that I never did
nothing [sic] wrong, I never went anyplace,” Florian testified,
or, “can I sit down with himself and Mr. Boyle so we can get
this squared away before it get blown out of proportion.” “He
refused,” testified Florian. That testimony was denied by
Moore. “No,” he answered, when asked whether Florian had
made a request to sit down and talk to Moore and Boyle about
PRECOAT METALS 1199
the suspension. However, Moore never disputed that Florian
had asked if, before leaving the premises, as directed to do, he
could speak with Robinson, Respondent-Union’s grievance
committeeman for the day or first shift, the shift on which both
Florian and Robinson worked. Indeed, Moore hardly could
have denied that request. Article XIII, section 3 of the 1995–
1999 collective-bargaining contract accorded an employee that
right. And Moore said that Florian could do so. As will be
seen, Florian chose to take advantage of that contractually-
permitted right to speak not only with Robinson, as contractu-
ally allowed, but also with Focht.
At the time Florian was working as loader for fill-in shipping
clerk White. Before leaving the annex, Florian reported his
suspension to White. That conversation should not pass with-
out notice, since on August 6 White would engage in the same
conduct as had led to Florian’s suspension, as discussed in sub-
section I below. Florian testified that he had “explained to
[White] that I was indefinitely suspended for driving my car
from one building to another.” “Chester notified me that he
was being suspended for driving around the building and he
was leaving,” testified White. No question that White had been
informed by Florian of the reason for the latter’s suspension.
Asked during direct examination whether Florian had said that
he was being suspended for driving around the buildings, White
answered unequivocally, “Yes.”
As mentioned in subsection D above, by August 4 Focht no
longer possessed supervisory authority over any Chicago facil-
ity production or operations support employees. Florian testi-
fied that on that date he had walked from the annex to the main
building and entered the main building through a back door.
“As I entered the building,” testified Florian, “Mr. Jack Focht
happened to be standing around there, by the back of the line
area.” According to Florian, he took advantage of Focht’s pro-
pinquity to report to Focht what had happened. “Yes, I had
seen Mr. Focht on my way in,” reasserted Florian, “I meant that
when I came into the building . . . Mr. Focht was standing
there.” If so, of course, it might not seem untoward that Florian
would have mentioned his suspension, as he passed where
Focht was standing. The problem for Florian’s account is that
Focht contradicted it.
Focht agreed that he had been told by Florian on August 4
about the suspension. His initial testimony appeared to corre-
spond to that of Florian as to where in the main building that
had occurred: “Yes, I was on the back end of the line up in the
inspection area running the line that day.” But as direct exami-
nation continued, correspondence in accounts became contra-
diction between them. “I was in the back end of the Production
Line. There’s a platform where we do all of our inspection[s]
at. And I was there looking over the strip,” (emphasis added),
testified Focht. “Yes,”: he had been upstairs, Focht testified
when interrogation resumed concerning his location on August
4. In contrast, Focht acknowledged that Robinson had been
working that day “back in the Coating Room,” which is “[a]t
the center of the building” downstairs from where Focht had
been located on the platform when approached by Florian that
day.
No question that Focht was working on a different level than
was Robinson on August 4, and on a level different from the
back door, when Florian arrived in the main building. To get to
where he was working, testified Focht, an employee coming
through that door would “walk up some steps” to where Focht
was “on the inspection area, upper platform.” “They come in
the door. They walk underneath the platform. And there’s
some steps. They just walk up the steps to get to the area I was
in,” explained Focht. True, from the back door entered by
Florian, Florian could have seen Focht “on the platform,” but
could not see Robinson’s work location on the main floor’s
coating line. Sight is hardly the point, however.
Pursuant to collective-bargaining contract, Florian had been
allowed to remain on the premises to speak with his union rep-
resentative. Focht acknowledged that someone entering the
back door would not have to go upstairs to Focht’s location in
order to go to Robinson’s work location—“No, he would
not”—nor would such an employee have to go upstairs to con-
tact Robinson on August 4: “No, he would not.” “Yes, he
would” have to detour to go upstairs to his work location that
day, acknowledged Focht. Obviously, on August 4 Florian had
paid as little heed to the scope of Moore’s permission to remain
on Respondent-Employer’s premises after his suspension, as he
had to Moore’s warning to stop driving between buildings to
punch out because that violated a work rule.
Focht’s wife, Gail, worked in Respondent-Employer’s office
on August 3. In fact, she seems to have been continuing to
work there during the hearing. Even were she not actually
continuing to work for Respondent-Employer throughout the
hearing, there is neither evidence nor representation that she
was not available to the General Counsel and Charging Parties
as a witness. The significance of that is Focht testified that, as
they had driven home from work on August 3, he had been told
by his wife “that Chester got put on suspension[.]” Of course,
such a report by Gail Focht was hardly inconsistent with
Moore’s and Boyle’s testimony that Moore, and Moore alone,
had made the decision to suspend Florian. If there was any
purpose to eliciting that testimony about what Gail Focht had
assertedly said to her husband on August 3, it got lost in
Focht’s increasingly guarded answers concerning what his wife
had told him.
Asked if his wife had indicated how she heard about Florian
having violated work rule 11, he answered, “Somebody out in
the plant had told her. And I don’t know who. You’d have to
ask her that question.” Asked if he had simply not bothered to
ask his wife who that person was, during all the time that had
passed since August 3, Focht responded, “She mentioned the
name, but I can’t remember who she said it was, so you need to
ask her.” An opportunity to do so never arose because, as
pointed out above, Gail Focht was never called as a witness.
When he had approached Focht on August 4, testified
Florian, he said “that I had just got [sic] indefinitely suspended
for driving my car from one building to the other and . . . asked
him if I had done something wrong,” or, “asked him if I had
done anything wrong, that I just got suspended for going from
building one to building two.” According to Florian, Focht
replied “that he had heard this was coming the night before and
that he said these were ridiculous charges,” and “did not want
to talk to me here in the plant, but he would call me that night.”
Later in his testimony Florian reaffirmed— “That’s true”—the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1200
account in his prehearing affidavit that, “Focht told me this was
bogus and that he knew it was coming yesterday.” However,
Focht refuted some of that testimony concerning their exchange
on August 4 in the plant.
Focht agreed that Florian had said “they just suspended me,”
or “Jack, I’ve been put on suspension for driving my car over to
the annex building,” or “he was suspended, put on suspension
for driving from the main building to the annex building.” He
further agreed that he had replied to Florian, “I heard that last
night, but I really didn’t believe it, then I seen you here this
morning,” or “I had heard that it happened the night before. I
was surprised to see him there that morning.” As to Florian’s
testimony that Focht had said the charges were “ridiculous,”
and to his affidavit account that Focht had characterized
Moore’s reason as “bogus,” however, Focht denied specifically
having used either term. “No,” answered Focht, when asked if
he had told Florian “it’s a bogus charge.” “No,” answered
Focht, when asked if he had told Florian that it was a fraud, or
words to that effect. “No, I didn’t,” Focht answered, when
asked if he had said ridiculous charges. The most that Focht
testified in this respect is that he “might have said” to Florian,
“I believe he got set up on this.”
As to having told Florian “he did not want to talk to [Florian]
here in the plant,” Focht testified, “I can’t really recall what I
said to him word for word.” Later, however, he testified, “I
said just, I don’t want to talk right now. I was busy.” Of
course, being too busy to talk is hardly an indication of concern
about being overheard discussing Florian’s suspension by
someone who might report such a conversation to officials of
Respondents, which appeared to be what Florian had been try-
ing to portray as having been Focht’s concern.
As quoted above, Florian testified that Focht had said “he
would call me that night.” Initially Focht testified, “I just said,
well let me check into this and let me talk to Ray [Drufke] and
I’ll see if I could do anything to help you.” No mention of
having promised to call Florian “that night.” Not making such
a promise seems reasonable in the circumstances. For Focht
testified that Drufke then had been on vacation. So, Focht
could hardly call Florian “that night” about having spoken with
Drufke regarding Florian’s suspension.
Later in his testimony, however, Focht testified, “I told him
to let me see what I could do and I would call you this eve-
ning.” Then, Focht returned somewhat to his initial account,
when no mention of calling “that night” or “this evening” had
been made: “I just said, you know, don’t do nothing. Let’s see
if we can’t get your job back.” (Emphasis added.) “Yes,” an-
swered Focht, he had told Florian not to do anything. As his
testimony progressed, however, Focht retracted that portion of
his testimony: “I didn’t do it right at that [time]. I asked him
when I called him on the phone” not to do anything. “Yes.
Yes,” answered Focht, when questioned about actually having
said that during a phone conversation conducted after Florian
had left the Chicago facility for the day, “I said, you know, can
you hold off on this,” and, more specifically, “It wasn’t that
morning.”
Beyond that, as pointed out above, Focht advanced internally
contradictory testimony regarding whether he had told Florian
not to do anything during the morning of August 4. Of course
had Focht said that at that point, as he sometimes claimed, then
some question arises as to why Florian immediately had gone
to Robinson about the suspension and about arranging a sit-
down meeting to discuss the suspension with Respondent-
Employer. After all, was Focht going to try to work out the
suspension with “Ray,” then Florian seemingly would have
nothing to lose by holding off speaking with Robinson until
Focht had an opportunity to speak with Drufke. As mentioned
above, however, it was not possible to Focht to speak with
Drufke on August 4.
During cross-examination Focht acknowledged that Drufke
“was on vacation” on August 4. To be sure, Focht added that
Drufke “was due back in two days.” Still, there is no evidence
that Focht had been able to contact Drufke until the latter re-
turned from vacation. So, telling Florian that “he would call
[Florian] that night,” as Florian testified, or “this evening,” as
Focht testified at one point, would seemingly have been a
pointless statement. He would not have been able to contact
Drufke, at least so far as the record discloses, by “that night” or
“that evening.” By then, Florian had already taken action to
pursue the propriety of his suspension through Respondent-
Union.
After having spoken with Focht, Florian testified that he
went to Robinson in the coating area. He testified that he gave
Moore’s suspension notice to Robinson and “explained to him
that I was being suspended for work rule 11.” Robinson “asked
me where did you go,” testified Florian, “And I says, John, I
didn’t go anyplace. I was going from building one to building
two, just to perform my duties for the day. I was coming to
punch out,” after which “I explained the conversation I had
with Mr. Moore.” According to Florian, Robinson “told me
that he would set up a sit down meeting with the company itself
and that he would call me and let me know when it would be.”
Interestingly, there is no evidence that Florian had mentioned to
Robinson having spoken to Focht and that Focht had promised
to attempt resolving the suspension with Drufke. More impor-
tantly, there is no evidence that Florian had bothered to mention
to Robinson the more important facts that he (Florian) had been
warned by Escobedo and, again, by Moore not to drive between
buildings while on the clock.
Robinson did arrange for a sit-down meeting, to be held on
August 7. Before proceeding to description of the testimony
about that meeting, however, consideration should be given to
four intervening conversations. As a prelude to the first one, it
seems quite obvious that Robinson believed that Florian’s sus-
pension, and any discharge arising from it, was unfair. Of
course, Robinson had not been present when Escobedo had
twice warned Florian about driving between buildings while on
the clock, as described in subsection F above. Nor, of course,
had Robinson been present when Moore had warned Florian
against continuing to drive from the annex to the main building
to punch out for the day, because such conduct violated a work
rule. There is no basis in the record for inferring that Florian
had bothered to tell Robinson about any one of those warnings.
Of course, Escobedo knew that he had individually warned
Florian that Respondent-Employer would no longer tolerate
driving between buildings while on the clock. Both he and
Damron also were aware that Escobedo had again warned
PRECOAT METALS 1201
Florian not to continue doing that, during the July 12 unit meet-
ing. And Damron had been present on August 3 when Florian
acknowledged, to Boyle and Damron in the presence of Moore,
that “I was coming to punch out and go home,” or, “I just come
from the Annex Building. I’m coming to punch out,” as high-
lighted above. Thus, Damron was aware that on August 3
Florian had admitted engaging in the very conduct which Dam-
ron had overheard Escobedo telling Florian on July 12 to stop
engaging in. These background facts set the table for the first
of the four intervening conversations.
Robinson testified that he had participated in a conversation
with Damron and Escobedo about Florian’s situation. To initi-
ate Robinson’s testimony about that conversation, the question
put to him was, “directing your attention to the time after Ches-
ter Florian was fired,” which would mean after August 10. Yet,
witnesses and counsel were not always precise when referring
to the separate suspension and discharge of Florian. Both
Escobedo and Damron described conversations—albeit, sepa-
rate ones—with Robinson following Florian’s suspension.
From the substance of the accounts of Robinson, Escobedo, and
Damron, it seems clear that the remarks, about which counsel
was attempting to elicit testimony from Robinson, were ones
made before Florian’s discharge, but after his suspension.
According to Robinson, “I told Manny and Rich that we go-
ing [sic] to have to do something about this. How can they fire
Chester when everybody in the plant is doing it.” Robinson
continued, “I think Rich or Manny told me, I don’t know which
one it was, that the people had been told that Jim didn’t want
them to do that no more and I, I guess they more or less said
Chester had been told and he continued to do it.” Though un-
certain as to which one had made those statements—apparently
unknown at the time by Robinson to be accurate statements—
Robinson testified that it had been Damron who then added that
“they didn’t want nothing to do with that was your, which it
would be mines in the first place [sic],” because “I usually take
care of all the grievance[s] on the day shift.” Straightening out
a garbled transcription of what Robinson testified, it appears
that Damron said that he and Escobedo wanted nothing to do
with the sit-down stage of Florian’s suspension because it was
Robinson’s responsibility to represent Florian at that stage of
the contractual grievance procedure regarding suspensions and
discharges.
Damron denied having ever said to Robinson that he (Dam-
ron) did not want to deal with Florian’s case. Which appears to
be accurate. The above-quoted comments attributed to Damron
by Robinson seem related to the sit-down meeting. In fact, no
one disputes that the grievance committeeman for each shift
ordinarily handles such meetings for employees on that griev-
ance committeeman’s shift. Still, Robinson testified that, in the
normal course of affairs, Damron and other grievance commit-
teemen sat in whenever Robinson was handling grievances.
However, given the background circumstances listed above,
there seems to have been some basis for Damron’s and Esco-
bedo’s reluctance to become involved in the sit-down meeting
arising from Florian’s suspension.
Both Damron and Escobedo had heard Boyle, seconded by
Moore, say that driving between buildings while on the clock
was not allowed, after having checked the work rules. Both
knew that Florian, among others, had been told about that dur-
ing the July 12 unit meeting. Escobedo knew, as well, that he
had individually warned Florian to stop engaging in that con-
duct. Damron knew that Moore had caught Florian driving
from the annex to the main building to punch out on August 3.
Some of those very facts—”people had been told”; “Chester
had been told”; “he continued to do it”—were ones mentioned
to Robinson by Damron or Escobedo, as quoted above. In view
of their personal knowledge of those facts, it hardly seems il-
logical for Damron and Escobedo to try distancing themselves
from the August 7 sit-down meeting. Obviously, they could
not deny facts of which they had personal knowledge.
The statutory duty of fair representation does not extend so
far as to require labor organization officials to lie during griev-
ance-processing. Moreover, were Damron or Escobedo to lie
about those facts—deny having heard what Boyle had said,
deny what Florian had been caught doing—such lies would
have been obvious to Boyle and Moore. Those very lies would
have poisoned future relations between Respondents, as Boyle
and Moore would have distrusted anything said in the future by
Damron and Escobedo. That would hardly further the statutory
interest in promoting meaningful collective bargaining.
In sum, at most Robinson’s testimony, about what Damron
and Escobedo had said, is so ambiguous in the circumstances
that it shows no more than that they would not be attending the
sit-down meeting which was Robinson’s to conduct. In reality,
by staying away from that meeting, Damron and Escobedo
would be avoiding being put on the spot—by possibly having
to admit that “people had been told that Jim didn’t want them to
do that” and that “Chester had been told and . . . continue to do”
what he had been told to stop doing. Of course, any admission
by Damron and Escobedo of those facts would hardly have
advanced Florian’s cause during the sit-down meeting.
A second conversation was assertedly conducted by tele-
phone between Florian and Focht, as a result of Focht’s prom-
ise to telephone Florian during the evening of August 4. As set
forth above, Focht testified that he had been too “busy” to
speak with Florian at Respondent-Employer’s facility during
the morning of August 4, but had intended to speak with
Drufke in an effort to attempt resolution of Florian’s grievance.
When the subject of that telephone conversation was initially
raised during cross-examination, Focht testified, “I called Ches-
ter that night.” As to what had been said, Focht testified at that
point, “I just told Chester, I said, you know, Ray’s on vacation
right now. Why don’t you just hold tight and wait till Ray
comes back and let me go in and talk to him to see if we can’t
get this settled. And that’s what I said. And then we didn’t talk
no more.” (Emphasis added.) But, according to Florian, they
did “talk . . . more.”
Florian placed the call as having taken place on “August 4th,
1998,” testifying that, during it, Focht “told me this was a set-
up and Mr. Damron had come to him on numerous occasions”
to urge that Focht fire Florian. According to Florian, during
their telephone conversation, Focht mentioned “a labor man-
agement meeting” during which Damron “told him [Focht] that
Chester was shaking down truck drivers, soliciting for money
to get them loaded and unloaded at a quicker pace,” and offered
“if I needed him to come in and testify for any reason whatso-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1202
ever, just let him know. He’[d] be willing to.” Of course, as
concluded in subsection C above, there is no credible evidence
that Damron ever had said any such thing about Florian during
a labor-management meeting. To the contrary, a preponder-
ance of the credible evidence reveals that it had been Focht who
had accused Florian of improprieties concerning truckdrivers
and Respondent-Union’s officials, particularly Damron, who
had defended Florian against that accusation. So, by telling
Florian during the August 4 telephone conversation that Dam-
ron had accused Florian of “shaking down truck drivers” during
a labor-management meeting, seemingly Focht had been play-
ing his “conflict this” role—trying to sow dissension between
Florian and Damron, for whom Focht had little use.
Florian’s testimony about what Focht had said, during the
August 4 telephone conversation, differs significantly from
Focht’s initial above-quoted testimony about what had been
said. Focht was cross-examined further about, in effect,
whether or not “we didn’t talk no more.” His answers were
internally contradictory regarding what had been said during
that conversation.
Asked if he had ever told Florian that Respondent-Union was
trying to get rid of him (Florian) and that the August 3 event
was the one on which Respondent-Union had succeeded, Focht
answered, “After I was terminated from my employment.”
“Yes,” Focht reaffirmed, when asked if that had occurred after
November. Clearly, that testimony contradicted Florian’s
above-quoted testimony. Then, however, Focht was asked if he
had told Florian the suspension was a set-up and part of Re-
spondent-Union’s purported effort to get rid of Florian. Ap-
pearing to perceive that the cross-examiner was trying to secure
a negative answer, for whatever reason not then understood by
Focht, Focht altered his earlier “didn’t talk no more” testimony.
“I might have said that, in that sense of speaking,” answered
Focht. Given another opportunity to answer that question,
Focht moved a little further. “Yes,” he had said that to Florian.
In fact, Focht then went on to revise even further his above-
quoted initial testimony, concerning what he had said to Florian
during the telephone conversation, even further: “I told him I
thought he was unfairly, at that time I told Chester I thought he
was really unfairly discharged and I felt he was a [sic] setup by
Mr. Boyle and Mr. Damron. That was the statement that I had
made,” after which, “I said let me see what I can do to correct
this and get your job back here.” Nonetheless, Focht stuck by
his guns, at least for awhile, concerning whether he had said
anything about Damron trying to get Florian discharged. “That
happened later,” Focht first reasserted. Well, no, “I can’t re-
call,” he next testified, “[i]f it was that conversation.” “I can’t
recall if I talked to him that night about” Respondent-Union’s
supposed accusations during the labor-management meeting,
“or not,” Focht eventually testified, thereby preserving for him-
self the best of both worlds—preserving somewhat his own
earlier denial about having said that, while leaving an open
door of not contradicting Florian, had the latter testified that
Focht had said something to that effect. All else aside, of
course, by the time he finished testifying Focht had contra-
dicted his own initial “didn’t talk no more” testimony.
Evidence of a third conversation was supplied by Focht.
That supposedly had been the approach to Drufke that Focht
had promised Florian on August 4 would be made as soon as
Drufke finished the last 2 days of his vacation. In fact, Focht
initially claimed that he had spoken with Drufke “I think two
days” after Florian’s suspension. That would have been on
August 6, possibly August 7. Yet, Focht later testified that he
had not spoken to Drufke until “[o]n or about” August 11.
Given Florian’s situation as of that time—suspended, purport-
edly asked by Focht to hold off taking any action until Focht
could speak with Drufke—that is hardly an insignificant differ-
ence in date.
When he did meet with Drufke, according to Focht, “first of
all I said, did you hear about Chester? He said, yes. I said, can
I talk to you about it? And he said, yes. And I just told him my
feelings, that I really felt this was wrong and it was unjust and
wasn’t handled right.” Focht testified that Drufke replied, “I
know Boyle was wrong for doing this. This one’s going to cost
us a lot of money,” or, “I know Boyle was wrong for doing this.
I want him to learn a lesson from this and this one’s going to
cost us a lot of money,” or “he didn’t feel it was right either,
that he felt Jim Boyle was wrong on this one, too, but he wants
Jim Boyle to learn a lesson and he said this one’s going to cost
us a lot of money.”
Now, even if this purported conversation had occurred as
late as August 11, Florian did not file his unfair labor practice
charges against Respondents until August 14, as mentioned in
footnote 1, supra. So, obviously, Drufke’s purported “cost us a
lot of money” remark could not have referred, at least so far as
the record shows, to any possible backpay order by the Board.
In fact, as cross-examination progressed, Focht conceded that
“I thought he [Drufke] was speaking about” the grievance-
arbitration process. Of course, the ultimate inquiry in private
disputes resolution extends to a broader number and type of
considerations than arise in unfair labor practice proceedings.
In fact, Drufke testified that he had been concerned that Re-
spondent-Employer would be vulnerable in connection with
Florian’s suspension and later discharge. But, not because of
any motivation proscribed by the Act on the part of Boyle.
Rather, Drufke testified that his concern—or disappointment, as
Drufke phrased it—had been over the absence of any notice to
employees stating, in so many words, that driving between
buildings after punching in and before punching out would now
be prohibited. And Drufke testified about one other point—one
which totally refuted Focht’s above-quoted testimony about an
August 6 or 7, or August 11, conversation with Focht.
During his rebuttal testimony, Drufke was asked whether
Focht had complained to him (Drufke) about Florian’s dis-
charge or suspension. Drufke answered flatly, “No.” Thus, not
only did the seemingly favorable-to-Focht Drufke not corrobo-
rate any aspect of Focht’s above-quoted descriptions of their
purported conversation about Florian’s suspension, but Drufke
contradicted Focht’s testimony abut that supposed conversation
having even occurred.
That Focht simply had been making up that conversation
with Drufke tends to be further shown by an added aspect of
Focht’s testimony. As set forth above, Focht had assertedly
promised to get back to Florian after speaking with Drufke.
Asked if he had done so, during cross-examination, Focht an-
swered initially, “I can’t remember talking to him [Florian]
PRECOAT METALS 1203
after that.” Well, if that had been the fact, it meant that Focht
had asked Florian to hold off until Focht could speak with
Drufke, but supposedly having done so, Focht had never both-
ered to tell Florian that he need no longer hold off on taking
some type of other action.
That seemed to occur to Focht who then testified, “I think I
did call him back, but I don’t know what day, and I told him I’d
talk[ed] to Ray, and there’s really nothing I can do.” Yet, later
Focht testified that he had telephoned Florian “the week of the
14th,”; “I think it was the 14th.” Given that Florian was pur-
portedly holding off on other action to ascertain if Focht could
persuade Drufke to rescind Moore’s suspension, Focht never
bothered to explain why he had waited at least 3 additional
days, from the latest date on which he had supposedly spoken
with Drufke, to report to Florian that his suspension could not
be resolved through Drufke. In fact, Florian never testified to
having participated in even an August 14, or “week of the
14th,” telephone conversation with Focht.
A fourth conversation involves Robinson’s report to Florian
that the sit-down meeting would occur on August 7. Florian
testified that Robinson “called me on the 5th of August” to
report that that would be the meeting’s date. But, according to
Florian, more had been said during that conversation.
As set forth above, Robinson testified that when he had
asked Damron and Escobedo how Respondent-Employer could
fire Florian for driving between buildings, one or the other had
responded that “people had been told that Jim didn’t want them
to do that no more,” and that “Chester had been told and he
continued to do it,” so Damron “didn’t want nothing to do
with” the suspension and it was Robinson’s to handle “in the
first place.” Robinson never testified that he had related those
remarks to Florian during their August 5 telephone conversa-
tion. However, Florian claimed that, during that telephone
conversation, Robinson had asked “do you have a problem with
Mr. Damron and Mr. Manny Escobedo,” to which Florian re-
plied by pointing out his effort to run against Damron a year-
and-a-half earlier and his intention to run against Damron a
year-and-a-half in the future. “I said, why? What seems to be
the problem?” testified Florian.
According to Florian, Robinson related that when he had
asked Damron and Escobedo how they could “let this go on
with Chester, let the company get away with such things,” or
“how had they let the company itself suspend Chester for just
driving his car back and forth,” or “how could you have let
Chester get suspended . . . for a violation of driving from one
building to the other,” Damron and Escobedo “raised their
hands and said they washed their hands of Chester. They want
nothing to do with it. And if he wanted to handle the case, go
ahead,” or “raised their hands and stated that they wash their
hands of Chester and his case, didn’t want to deal with it. If he
wanted to, for John Robinson to go ahead, but they would not
get involved,” or, “they raised their hands and said they washed
their hands of Chester. If you want to fight for him, you go
ahead. We will not,” or “they washed their hands of it and
wanted nothing to do with it. If he wanted to, go ahead. But
not them.”
When he appeared as the General Counsel’s witness, Robin-
son was not interrogated about what he had said to Florian dur-
ing their August 5 telephone conversation. So, he did not cor-
roborate any of Florian’s above-quoted testimony about what
Robinson assertedly had said, during the August 5 telephone
conversation, about hand-raising by Damron and Escobedo, nor
about washing their hands of Florian, nor about it being up to
Robinson whether or not to pursue Florian’s suspension with
Respondent-Employer.
From what Robinson did testify that Damron and Escobedo
had actually said, in the first above-described conversation, at
most Damron and/or Escobedo had recited Boyle’s warning
and Florian’s disregard of it and, further, that they wanted noth-
ing to do with the sit-down meeting which would be Robin-
son’s to conduct. It seems unlikely that Robinson would have
so distorted those latter remarks, had he related to Florian what
Damron and Escobedo had said. Moreover, had Robinson re-
lated what had been said to him by Damron and Escobedo, it
seems unlikely that he would not have told Florian about what
had been said about Boyle’s statement—“didn’t want them to
do that”—and that Florian “continued to do it.” Certainly there
would have been no reason for Robinson to have omitted those
remarks which, after all, were at the heart of Florian’s suspen-
sion. Yet, Florian omitted any mention of Robinson having
related what Damron and Escobedo had said about Boyle’s
position and about Florian’s continued driving between build-
ings while on the clock.
There is one further aspect of the August 5 telephone con-
versation, between Robinson and Florian, which quite clearly
had occurred. Florian acknowledged having asked Robinson
“for Rich and Manny not to be present at the sit down meet-
ing.” Given what had been said above to Robinson by Damron
and Escobedo, that appears to have been Damron’s intention:
not to attend the August 7 sit-down meeting. In fact, had Rob-
inson actually said to Florian that Damron and Escobedo were
washing their hands of Florian and wanted nothing to do with
processing a sit-down meeting for him, then it seems rather
unnecessary for Florian to have asked Robinson not to have
either union officer present at his sit-down meeting. That is,
the very fact that Florian had made such a request is some evi-
dence tending to contradict Florian’s testimony regarding what
Robinson supposedly had said about Damron’s and Escobedo’s
intentions. In fact, it seems that both unit officers had been
inclined to allow Robinson to handle the sit-down meeting
without their participation which, as pointed out above, could
only have been harmful to Florian, given what Damron and
Escobedo knew about the events preceding Florian’s suspen-
sion. That inclination changed once Robinson related Florian’s
request to Damron.
According to Damron, on August 7 he was told by Robinson
that “Chester didn’t want me in on any of the meetings.” “I
told [sic] Chester[ ] don’t run the Union meetings. He don’t
run, he don’t run the Union there,” Damron testified that he
retorted to Robinson. Damron continued, “John asked me
would I come in the conference room, that he had Chester
there,” and when they entered the room where Florian was
present, Robinson “said that he would like for me and Chester
to get along,” and Damron said, “I have no problems working
with Chester,” and “I have nothing against Chester.” Florian,
testified Damron, made a “statement that there’s a lot of people,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1204
like hearsay, agitators and people listen to those and sometimes
people will listen to those people and get you at each other
because you don’t go personally to confront someone,” after
which “we shook hands” and discussed Florian’s claim that he
had permission from Focht to drive between buildings and the
need for Florian to obtain a written statement from Focht to that
effect.
No one corroborated that testimony by Damron concerning
Robinson asking Damron to come into the room and asking for
Damron “and Chester to get along,” nor the account of their
shaking hands and Florian, in effect, saying that people like to
create conflicts by saying things that had no foundation. Of
course, that is precisely what seems to have occurred here: in
his “conflict this” mode, Focht had sown discontent by Florian
against Damron, in particular, and, as well, seemingly toward
Escobedo and Morales. Florian had harbored distaste for Dam-
ron since early 1997, and that distaste had been inflamed by
Focht’s false statements about Damron wanting Florian fired.
Against that background, it seems objectively implausible that,
as of August 7, Florian would have merely accepted any assur-
ances by Damron that he (Damron) had “nothing against”
Florian.
The testimony given by Florian seems more consistent with
the background of relations between Damron and Florian as of
August 7—relations which could only have further deteriorated
when Robinson told Damron that his presence was not desired
by Florian at the sit-down meeting. As quoted above, Damron
acknowledged having told Robinson, after being told by the
latter “Chester didn’t want me in on any of the meetings,” that
“Chester[ ] don’t run the Union meetings.” Consistent with that
remark, acknowledged to have been made by Damron, Florian
testified that, when he arrived in the room for the sit-down meet-
ing, Damron and Escobedo were already present there. Accord-
ing to Florian, Robinson “explained to me that he brought it [not
attending the sit-down meeting] to Damron and Mr. Damron
stated that he was the chair person of all committees and has a
right to be there.” Then, testified Florian, “Mr. Damron told me
at that time who the hell are you to dictate to this union on who
and who and what [sic] attend any kind of meeting,” and “that
he was the chairman once again, and he has a right to be at any
meeting.” Given the events covered in this and in preceding
subsections, that seems a more plausible description of what
occurred prior to the August 7 sit-down meeting.
As he testified, Damron impressed me as someone who
would not lightly abide infringement, by employer-official or
by employee, on his prerogatives as unit chairman. Both Rob-
inson and Florian acknowledged that, as unit chairman, Dam-
ron had every right to attend every meeting with Respondent-
Employer. In fact, as pointed out above, Robinson testified that
Damron and, when possible, the other two grievance commit-
teemen ordinarily attended sit-down and grievance meetings
with Respondent-Employer, even when it was Robinson who
was actually conducting such meetings on behalf of Respon-
dent-Union. So, even though Damron and Escobedo had seem-
ingly not planned to attend Florian’s sit-down meeting, to avoid
having to admit or lie about facts adverse to Florian of which
Damron and Escobedo had personal knowledge, for Damron
Robinson’s report of Florian’s request, that Damron not attend
the August 7 sit-down meeting, was essentially waiving a red
flag in front of a bull—it virtually assured that Damron and
Escobedo would assert their right and practice of attending such
meetings, by attending the one on August 7.
In that regard, it should not be overlooked that under the Act
employers have no right to pick and choose the particular union
representatives with whom those employers will deal. See,
e.g., United Parcel Service, 330 NLRB 1020 fn. 1 (2000), and
cases cited therein. Nor does there seem to be a statutory right
for employees to similarly pick and choose which of their bar-
gaining agent’s elected representatives can and cannot act on
their behalf. To be sure, employees can object to a particular
representative whenever participation by that representative
violates some aspect of fair representation under the Act. See,
e.g., Michael Tenorio & Gil Fowler v. NLRB, 680 F.2d 598 (9th
Cir. 1983). But, as concluded in preceding subsections, there is
no credible evidence that Damron—or Escobedo, for that mat-
ter—had ever done anything prior to August 7 to injure
Florian’s employment situation, Florian’s subjective view to
the contrary notwithstanding. There is no basis for concluding
that, by reversing his initial position not to attend the August 7
sit-down meeting, Damron somehow violated Respondent-
Union’s duty of fair representation owed Florian. In fact, other
than having attended, there is no evidence that Damron did
anything else during the meeting. For Respondent-Union it
was Robinson who conducted the entire meeting, while Dam-
ron merely sat there.
Boyle and Moore attended that meeting for Respondent-
Employer. It is clear that Robinson, Damron, and Escobedo
attended it for Respondent-Union. Robinson testified that
Morales also had been present. But that testimony appears to
have been in error. Morales, the night-shift grievance commit-
teeman, denied that he had attended it and no one else placed
him in attendance. Escobedo testified that he had been unable
to obtain a relief worker, so that he could attend the entirety of
the meeting. So he sat in for “about 15 minutes,” but left when
he saw a “truck drive up” and did not return to the meeting. As
will be seen, that undisputed testimony is not without signifi-
cance.
Robinson was never afforded an opportunity to describe in
narrative form what had been said during the meeting. He
agreed that work rule 11 had been mentioned, but did not recall
if work rule 10 also had been mentioned: “Only thing we dis-
cussed then, I guess, was the eleven.”
Boyle testified that, “The meeting started by Mr. Florian tell-
ing me that he didn’t know that was a violation of the Company
work rules,” that “he was just driving back and forth. He didn’t
see anything wrong with it.” Given what Boyle had said to
Respondent-Union’s officers about that very conduct and work
rule 11, approximately a month earlier, that was hardly the best
argument to address to Boyle. But, Florian would make that
bad situation even worse. Florian continued, testified Boyle, by
adding, “He would never break a Company, Precoat work rule.
He said he would never do it.” Florian’s less that perfect record
is reviewed below. Boyle testified that he had “looked at his
[Florian’s] file” before the sit-down meeting and, based upon
that review, challenged Florian’s assertion by saying, “Mr.
Florian, I don’t know how you can say that when you’ve bro-
PRECOAT METALS 1205
ken numerous company work rules in the past.” A somewhat
surprised Florian replied, testified Boyle, “I thought all that was
supposed to be gone,” and when Boyle asked what that meant,
Florian did not explain. Robinson “asked me for copies of all
the basic documentation, previous disciplinary actions against
Mr. Florian,” Boyle testified. So far as the record discloses,
Respondent-Employer provided that information to Respon-
dent-Union. At least, there is no allegation, nor argument, that
it did not do so.
As with Robinson, however, very little particularized testi-
mony was sought from Boyle regarding what had been said
during the meeting concerning Florian’s suspension. Boyle
testified that Robinson “made it . . . very clear that they were
going to fight the terms, or, they were going to fight the disci-
plinary action.” Moreover, testified Boyle, “I addressed the
issue of the fact that I saw a problem with Mr. Florian not
clocking out when I told him three times to do so.” As will be
seen, it was that event that ultimately led Boyle to add violation
of Work Rule 10—” Deliberate falsifying of employment ap-
plication, medical records, work records or other reports” (em-
phasis added)—as an additional reason for discharging Florian
on August 10. But, he conceded that during the August 7 sit-
down meeting, “I did not specifically mention 10,” though he
added that, by mentioning Florian’s refusal to punch out, as
directed on August 3, “I discussed” work rule 10. As discussed
below, that testimony turns out to be not so implausible as it
might seem at first blush.
Florian never denied that the exchange about prior work
rules violations, as described by Boyle had occurred. In fact,
Florian’s testimony appeared to corroborate that of Boyle.
Pointing to “a coffee table in his office with a bunch of papers
on it,” testified Florian, Boyle “told John [Robinson] that Ches-
ter had been one of the worst employees here, should never
have been hired, that I [Boyle] have 35 write ups against him.”
To that, Florian testified, Robinson responded “we are not here
for this reason; we’re here for one thing only. If Chester had all
these write ups and was not such a good employee, then he
should have been fired a long time ago.”
With respect to the reason why the meeting was being con-
ducted, Florian testified that Robinson “told Mr. Boyle that
nobody has ever been fired for driving a car from one building
to the other.” “That’s true,” Florian agreed, when asked
whether Robinson had argued that Florian should not have been
punished or penalized for the act he committed, since no one
else had ever been discharged for doing what Florian had done
on August 3. Inasmuch as Respondent-Union is alleged to have
failed to fairly represent Florian, albeit primarily because it
supposedly had instigated his suspension and later discharge, it
is worth reviewing Florian’s opinion about the worth of Robin-
son’s August 7 arguments, in Florian’s opinion.
Florian was asked if he disagreed with anything argued on
his behalf by Robinson. “Not disagreement. No, I did not,” he
answered. “Yes, sir,” Florian testified, he had agreed with
Robinson’s positions. Asked if Robinson had urged everything
that Florian, himself, would have urged, Florian responded, “he
was doing a good job of it, sure.” “True,” Florian answered,
when asked if he agreed with Robinson’s arguments. Asked
again if he could think of any argument Robinson might or
could have advanced that day, but had not, Florian replied,
“Not that day, no, sir. I really don’t remember, let me put it
that way. I really don’t know what could have been done,
said.” Those answers should not escape without further notice,
in light of later questioning conducted when Respondent-Union
and Steelworkers’ officers testified.
During cross-examination some of those witnesses were in-
terrogated concerning their failure to argue that, as of summer
of 1998, Respondent-Employer had failed to give specific no-
tice to its Chicago employees that work rule 11 would now be
covering driving between buildings, on South Kilbourn Street,
after punching in and before punching out. In fact, it is accu-
rate that Respondent-Employer never had posted any notice
specifically reciting that. So, in light of the later cross-
examination, there is some basis for questioning why, even
though Robinson had not apparently made a lack-of-specific-
notice argument on August 7, Florian had expressed total satis-
faction with the arguments Robinson had made that day: “I
really don’t know what could have been done, said.” After all,
Robinson was responsible for advancing the initial arguments
on Florian’s behalf. Surely if there had been some genuine
lack-of-notice argument to be made, that would be an argument
that “could have been done, said.”
When called as a witness by the General Counsel, Robinson
was never asked why he had not made a lack-of-notice argu-
ment to Boyle and Moore on August 7. That is a somewhat
pregnant omission, given questions about lack-of-notice argu-
ment addressed to later witnesses for Respondent-Union. In
fact, it is especially pregnant given Florian’s expressed satisfac-
tion with Robinson’s performance on August 7.
Of course, Robinson could not have then known about
Moore’s mid-July warning to Florian. As pointed out in sub-
section G above, Moore had not told anybody else about that
particular warning. Even so, during the meeting with Respon-
dent-Union’s officers, discussed in subsection F above, Boyle
had said specifically that, in Boyle’s opinion, the prohibition of
work rule 11 extended to driving between buildings after
punching in and before punching out. Boyle had given Re-
spondent-Union’s officers time to communicate everything he
had said during the meeting to Chicago unit employees. It is
uncontested that Respondent-Union’s officers, particularly
Escobedo, had told employees, specifically Florian, at the July
12 unit meeting that driving between buildings while on the
clock would no longer be allowed.
In light of those pre-August 7 events, surely it would have
been self-defeating for Robinson to have argued lack of pre-
August 3 notice to Florian that work rule 11, as interpreted by
Boyle, applied to driving on South Kilbourn Street between
buildings while on the clock. Indeed, Respondent-Union’s
officers legitimately had their own credibility to preserve when
dealing with Respondent-Employer. Had Robinson denied
Boyle’s notice of his position concerning work rule 11, or de-
nied that Respondent-Union had informed unit employees of
that position, after having secured an implementation-delay to
do exactly that, then likely nothing ever said by Robinson in the
future would have been trusted by Respondent-Employer. In
short, lying in an effort to salvage Florian’s self-inflicted situa-
tion could have impaired, in not totally undermined, future
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1206
overall relations between Respondents. That is hardly a result
consonant with the purposes of the Act.
The fact that Robinson did not make a lack-of-notice argu-
ment, and that Florian conceded that Robinson had done “a
good job” on August 7, is further evidence that, in fact, Florian
had been put on specific notice prior to August 3 that he should
not be driving on South Kilbourn Street between buildings after
having punched in and before having punched out. Apparently
appreciating that vulnerability of his situation on August 7,
Florian advanced two other assertions.
First, he testified that, on August 7, Robinson had requested
that Boyle bring one of the foremen into the meeting, to explain
that “we were allowed to drive back and forth with no problem
whatsoever,” and, moreover, had mentioned specifically bring-
ing in Focht and Mahoney as persons who could explain that to
Boyle, “if he [Boyle] wasn’t aware” that such a practice was
allowed. Of course, Boyle was aware that he had prohibited
continuance of such a practice. No foreman was in a position
to countermand that prohibition by the plant manager. Thus,
bringing in someone such as Focht or Mahoney would hardly
serve to salvage Florian’s disregard of work rule 11, as notified
that Boyle would be applying it.
Beyond that, no other person present during the August 7
meeting corroborated Florian’s testimony about such a request
having been made by Robinson. Robinson, seemingly sympa-
thetic to Florian’s position, never testified that he had requested
on August 7 that Focht, Mahoney or any other person be
brought into the sit-down meeting being conducted that day.
Second, Florian testified that, during that sit-down meeting,
“Mr. Robinson didn’t do anything wrong,” but rather, “John
Robinson done what he had to do to a certain point.” What
“point”? Well, claimed Florian, “I think if [Robinson] would
have had full cooperation of the chair person maybe they could
have got this resolved,” because Robinson “probably could
have done a better job if he had the opportunity to. If you have
a committee in a company itself, if you work together and sit
down and present your case as a whole, not the way the 7th
meeting went on in August, where nobody wants to handle it,
just let this guy handle it.” But the guy—Robinson—was the
one who ordinarily handled sit-down meetings for first or day-
shift employees, such as Florian. True, Damron and, for about
15 minutes, Escobedo sat in during the August 7 sit-down
meeting. Yet, as pointed out above, when able to attend such
meetings, both of them ordinarily did so. So far as the record
shows, their mere attendance in no way hobbled Robinson’s
ability to represent Florian, as he would have represented any
other first-shift employee. So far as the evidence shows, Dam-
ron and Escobedo merely sat in as witnesses to what was occur-
ring during a meeting conducted by the appropriate grievance
committeeman.
Still, Florian argued that had Damron cooperated with Rob-
inson, “maybe they could get this resolved.” Yet, Robinson
never claimed that his presentation had been impaired in any
way by some sort of supposed lack of full support by Damron.
Asked what he believed Damron or Escobedo could have done
on August 7, that they had not done, Florian answered, “I
couldn’t tell you that.” “I don’t know what they could have
come up with, said or done,” he later answered. Asked what
arguments Damron could have made that Robinson had not
made, Florian conceded, “Again, I don’t know. That wasn’t
my job.” But, it was his situation that had been the subject of
the meeting. Surely, he was able to understand what arguments
could have been advanced on his own behalf. “Not off hand
right now,” he responded, when asked if he could think of any
argument, not made on his behalf by Robinson, that Damron or
any other union officer could have been made. Actually, given
the points made in immediately preceding paragraphs, that
appears to be an accurate portrayal of the situation.
Not to be lost sight of here is the fact that, at root, involved is
interpretation and application of a private employer’s work
rule. Respondent-Employer is not a public entity. Its work
rules are neither criminal prohibitions nor prohibitions which
somehow infringe upon rights under the First Amendment to
the United States Constitution, where clear notice of prohibi-
tions is essential. See, e.g., Cleveland v. United States, 531
U.S. 12, 23–24 (2000). In fact, Boyle and Moore did notify
Respondent-Union that work rule 11 would extend to driving
between buildings while on the clock. In turn, Respondent-
Union and, in addition, Moore warned Florian to cease doing
that. Against that background, Florian acted at his own peril in
disregarding those warnings.
The August 7 sit-down meeting adjourned with Robinson
saying that Boyle had 5 days to respond to what had been said
during that meeting. Florian testified that, after leaving that
meeting, he had spoken to Escobedo “outside the office area,”
and had asked the latter, “why didn’t you get up at the meeting
and tell Mr. Boyle that you also drive in your car back and forth
and I’m the guy that relieves you.” According to Florian,
Escobedo retorted, “F U. I’m not going to lose my job because
of your fat ass and . . . just walked away from me at that point.”
Escobedo denied specifically that he had ever been asked by
Florian why he (Escobedo) did not admit having driven his car
between buildings and, further, denied specifically having ever
told Florian “f—k you, I’m not going to lose my job because of
your fact [sic]ass.” In addition to that denial, there are other
problems with Florian’s testimony about Escobedo’s purported
remarks.
First, Florian’s testimony extended over 3 days of hearing.
Thus, cross-examination continued on days after the one during
which direct examination had been conducted. Even so, there
seems no reason to conclude that by the second or third day
Florian likely would have forgotten his testimony during direct
examination about events in which he supposedly had been a
participant. Yet when asked if he remembered testifying on the
previous day about someone having called him a “fat ass,”
Florian equivocated. “I believe so,” he initially testified. Then
he testified, “You’d have to ask me the question again, sir. I
think I testified to a lot of stuff for hours yesterday.” Asked
about a member of Respondent-Union’s committee having
referred to him (Florian) as a “fat ass,” Florian continued to
equivocate: “You got to give me something real specific.”
Asked, then, whether it was fair to say he had no recollection of
having been called a “fat ass” by a fellow union member,
Florian answered, “If you give me a little time, I’ll think of
maybe your question and then I can answer it for you.” Now,
as an objective matter, it seems unlikely that anyone would
PRECOAT METALS 1207
abruptly forget having been called that by a coworker, particu-
larly when that coworker was an agent of a union representing a
person called a fat ass. Even more so does it seem unlikely that
anyone would abruptly forget having been called that, when
such a remark supposedly had been made in the course of an
event involving suspension of the target of that remark. What
seems to have occurred, as on all too many occasions during
the hearing, an account was made up during direct examination,
but the witness was unable to remember during cross-
examination exactly the story that he had earlier tailored to
adversely portray an agent of the other side.
Much later during cross-examination Florian was given an-
other bite at the “fat ass” apple, accompanied at that point by
reference to his pretrial affidavit. That affidavit account of
Escobedo’s remarks states: “F— You, I am not going to lose
my job because of you.” Florian claimed, in essence, that the
affidavit-account aided his recollection concerning what “I
testified yesterday to.” He admitted that “[t]he word fat ass
was eliminated from” the affidavit, but claimed that he once
more “remembered that word [sic] too.” Then Florian pro-
ceeded to reiterate that Escobedo had said, “F U I am not going
to lose my job because of your fat ass.” By then, however, his
ongoing waffling on the point accomplished nothing more than
to leave the impression that Florian was doing no more than
attempting to portray Escobedo in the most unfavorable light
possible, with the overall objective of shoring up a case against
Respondent-Union, rather than testifying candidly about what
had occurred after the August 7 sit-down meeting.
That conclusion is supported, secondly, by Escobedo’s
above-described testimony about his attendance at Florian’s sit-
down meeting. Escobedo testified, “I was working at the time
so they couldn’t get any one to relieve me so I went in there
about 15 minutes before I seen the truck drive up and I had to
go back to work.” “No,” he answered, he had not stayed for the
entire meeting. Obviously, had Escobedo left the meeting after
approximately 15 minutes, then he could not have been present
to say anything to Florian following that meeting. In fact, no
one disputed Escobedo’s testimony that he had been forced to
leave the August 7 meeting early, to attend to duties from
which he had been unable to obtain relief.
That leads to consideration of a third point. Florian testified
during direct examination that he and Escobedo had not been
alone during that asserted postmeeting exchange. “I believe
Mr. Robinson was there,” testified Florian. He added hastily,
“I don’t know if he heard it or not but I believe he was there,
[w]hen we walked out of the office.” Florian never bothered to
explain exactly how Robinson could not have heard an ex-
change between Florian and Escobedo, when they all suppos-
edly had walked out of the office together. Now, Robinson was
called as the General Counsel’s witness after Florian had given
that testimony during direct examination—after Florian had
testified about what Escobedo had said, he “believe[d],” in
Robinson’s presence. But, Robinson never corroborated any
aspect of such a postmeeting Florian-Escobedo exchange: never
testified that he had heard Escobedo make the remarks attrib-
uted to him by Florian; never testified that he had seen, albeit
not heard, Escobedo and Florian engage in a post-sit-down
meeting conversation; never testified that Escobedo had even
been present by conclusion of the August 7 sit-down meeting.
Moving on, by memorandum dated August 10, the substance
of which is quoted below, Boyle responded to Robinson by
giving notice that Florian was discharged. Boyle testified that
he—and he alone—had made the decision to terminate Florian.
There is no basis for questioning that testimony by Boyle.
As quoted above, both Boyle and Florian testified that the
former had mentioned Florian’s past work record during the sit-
down meeting. In fact, Boyle acknowledged having reviewed
Florian’s personnel file before the sit-down meeting. As to that
file, Drufke conceded that “Chester had a very thick personnel
file,” and, in fact, a number of warning reports from that file
were presented during cross-examination of Florian. The latest
is dated “2–17–98,” for having failed to “follow procedures for
pulling the oldest stock first,” while earlier ones—some signed
by Florian and others showing “Refused to sign”—list viola-
tions of various work rules: work rules 20 and 21 on September
8, 1997; work rule 17 on October 2 and, again, on December 2,
1996; work rule 16 on November 21, 1994. The total number
of those written warnings does not add up to 35, the number
that Florian claimed Boyle had recited during the August 7 sit-
down meeting, as quoted above. On the other hand, they cer-
tainly show that Florian had violated work rules in the past.
And there is no evidence that any other employee had received
as many written warnings as had Florian over the course of the
same time period prior to August 7.
Even so, from Boyle’s testimony, those written warnings had
not been a reason for Boyle’s decision to discharge Florian,
though Boyle acknowledged having taken them into account
during postdischarge settlement discussions, as Florian’s griev-
ance progressed to arbitration. Asked to explain each and every
reason for his discharge decision regarding Florian, Boyle an-
swered: “Each and every reason would be one simple fact that
he left Company premises. It was a violation of work rule 11.
Period. It’s black and white. There aren’t any exceptions.”
At first blush, that might appear to have been a quite trivial
offense—driving on a public street between buildings for a few
minutes on one occasion—for discharging a relatively long-
term employee. In fact, when evaluating allegations of unlaw-
ful motivation, one indicium to which the Board had accorded
weight, in assessing actual motivation, is comparative severity
of employee-offense and employer-discipline. See, e.g., De-
troit Paneling Systems, 330 NLRB 1170 (2000); American
Thread Co. v. NLRB, 631 F.2d 316, 321–322 (4th Cir. 1980;
and, more generally, Pikeville United Methodist Hos. v. United
Steelworkers, 109 F.3d 1146, 1155 (6th Cir. 1997). Yet, that
particular indicium is by no means determinative of employer-
motivation. Account need be taken, as well, of the entire situa-
tion. See, e.g., Mid-Mountain Foods, 332 NLRB 251, 252
(2000).
As set forth in subsection E above, Drufke had brought
Boyle to Chicago to correct “quality and productivity prob-
lems” at the facility there. Boyle had a history of demonstrated
success in correcting such problems. One element of his “phi-
losophy” for doing so had been strict enforcement of work
rules, aimed at achieving the overall objective of creating
“[s]tructure, organization, discipline” at troubled facilities
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1208
whose operations Boyle was attempting to turn around. As
described in subsection F above, during his meeting with Re-
spondent-Union’s officers Boyle had mentioned that there
would be strict enforcement of work rules at the Chicago facil-
ity. And he also said that he regarded driving between build-
ings while on the clock to be a violation of work rule 11. Be-
fore implementing new rules and interpretations, Boyle had
allowed Respondent-Union time to communicate his message
to unit employees. Surely, Boyle had no reason to believe that
Respondent-Union would not do that.
Then, on August 10, Boyle confronted a situation where an
employee had done precisely what Boyle had said would vio-
late work rule 11. He had said that he would apply Respon-
dent-Employer’s work rules strictly. He did so. That the of-
fense might appear objectively minor, in the overall scheme of
things, is not the point. Boyle felt that strict enforcement of
work rules was an integral component of turning around Chi-
cago operations. Thus, he applied the rule strictly to Florian
and followed a course which, so far as the evidence shows,
Boyle would have followed with any employee who had done
what Florian had been caught doing on August 3, regardless of
any internal union activities by the adversely affected em-
ployee. In such circumstances, there is no basis for application
of the disproportionate offense-discipline indicium, as a basis
for inferring motivation unlawful under the Act.
That indicium is not the only unlawful-motivation indicium
which might appear to come into play here, at least at first
blush. Boyle’s August 10 memorandum states in substance,
“The above subject, Chester Florian, has violated Work Rule
No. 10 and No. 11; therefore he is terminated.” Yet, as quoted
above, Boyle testified that driving off company premises while
on the clock had been the lone reason for his decision to dis-
charge Florian. Work rule 10—falsification of “work re-
cords”—has no relationship to leaving company premises. In
short, inclusion of work rule 10 seems to have been a falsely
added reason for discharging Florian.
Another indicium of unlawful motivation is advancing rea-
sons which, in fact, were not actual discharge reasons. See,
e.g., Detroit Paneling Systems, supra, and, more generally,
Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 148
(2000). Again, however, that is not a determinative indicium.
For, “the defense does not fail simply because not all the evi-
dence supports it, or even because some evidence tends to ne-
gate it[ ].” Maple Grove Health Care Center, 330 NLRB 775,
777 (2000), and cases cited therein. As it turns out, Boyle had
a plausible, if tenuous, reason for adding violation of work rule
10 to Florian’s termination memorandum.
As pointed out in subsection G above, it is unrefuted that
Boyle had thrice directed Florian to “punch out and go home
for the day” on August 3, but Florian had declined to do so,
asserting that it was “not 4:00 o’clock yet.” Obviously, Boyle
resented that response. Although he had not pursued the sub-
ject that day, as set forth above it is uncontroverted that Boyle
had raised that very subject during the August 7 sit-down meet-
ing. Clearly, he had not simply forgotten by August 7 what had
occurred 4 days earlier. Thus, in essence, he indulged his on-
going pique about what had occurred by adding work rule 10 as
a termination reason, even though he conceded when testifying
that it had not actually been a reason for his decision to fire
Florian. In that regard, two points should be mentioned in con-
nection with that addition of work rule 10 to Florian’s termina-
tion notice.
First, as with Moore’s suspension motivation, there is no
credible evidence showing either that Respondent-Union, par-
ticularly Damron, had caused or attempted to cause Boyle to
decide to discharge Florian on August 10. Furthermore, there
is no credible evidence that Boyle had made his discharge deci-
sion because of any statutorily-protected activity by Florian.
Rather, Boyle had warned that work rules would be enforced
and that, in his opinion, work rule 11 prohibited driving on
South Kilbourn Street between buildings while on the clock.
On August 3 Florian was caught by Moore doing precisely
what Boyle had said was prohibited by work rule 11. On the
following day, it is uncontested, Florian had declined to punch
out, despite having been directed by Boyle to do so. None of
those activities are ones which are protected by Section 7 of the
Act. So, the added work rule 10 reason, in the termination
memorandum, is of no true consequence in evaluating Respon-
dent-Employer’s motivation under the Act.
Second, facially it appears odd that Boyle had chosen to list
work rule 10 as the rule violated when Florian had declined to
punch out as directed by Boyle on August 3. After all, that
conduct sounds less in violation of a rule against falsifying
work records and more in insubordination. Insubordination is
prohibited specifically by Respondent-Employer’s work rule
28. But, Boyle confronted a problem were he to rely upon that
particular work rule for terminating Florian.
Work rule 28 was one of the then-newly added two work
rules about which Respondent-Union had protested in late June,
after it had appeared among the revised work rules of “June 25,
1998” which were posted. Damron’s protest had been based
upon Respondent-Employer’s failure to afford Respondent-
Union prior notice and an opportunity to bargain about adding
those rules, before they had been announced and implemented.
The fact that Boyle and Moore thereafter met with Respondent-
Union’s officers could be found, in a subsequent arbitration
proceeding, insufficient to erase the absence of prior consulta-
tion. Indeed, if any reliability is to be accorded to the testi-
mony by White set forth in subsection E above, Damron had
planned to “settle [those added rules] through the grievance
procedure” should “somebody get[ ] hurt by” application of one
or both of them to an employee. Thus, were he to have listed
work rule 28 in the termination memorandum, Boyle faced a
possible argument having little to do with Florian’s recalci-
trance, as Boyle viewed it, on August 3. Better, in that setting,
to characterize Florian’s conduct as violation of an already-
established work rule.
It should not be overlooked that, as of August 10, Boyle con-
fronted only disputes resolution procedures, under the 1995–
1999 collective-bargaining contract, concerning Florian’s sus-
pension and discharge. No unfair labor practice charge was
filed by Florian until August 14. Nor, so far as the credible
evidence discloses, could Boyle have foreseen any reason as of
August 10 to consider that Florian might file unfair labor prac-
tice charges. He denied that he had known of Florian’s past
and projected internal union activities. To the extent that his
PRECOAT METALS 1209
addition of work rule 10 can be regarded as padding Respon-
dent-Employer’s position for firing Florian, therefore, that pad-
ding cannot be regarded as some sort of effort to escape a con-
clusion of unlawful motivation under the Act. At best, instead,
it can only be characterized as an effort to buttress Respondent-
Employer’s position in private disputes resolution procedures,
hardly a violation of the Act.
As to that padding, it also should not escape notice that, as
pointed out above, Drufke had not been “real comfortable” with
the situation regarding Florian. Not because of any possible
unlawful motivation on the part of Boyle, but rather Drufke’s
lack of comfort had arisen from his concern about the adequacy
of notice to Florian regarding driving between buildings while
on the clock. Drufke acknowledged having been told by Boyle
that the latter “had a meeting with the Union,” and that there
was a “posting up that warned employees not to do that.” Nev-
ertheless, as with his unwillingness to accept Director of Hu-
man Resources Christopher’s report about what he had over-
heard Focht saying to OFCCP investigators, as described in
subsection D above, Drufke seemed unwilling to accept
Boyle’s recitation of events leading to Florian’s suspension.
Thus, his remarks that “Boyle was wrong for doing that,” and
that “this one’s going to cost us a lot of money,” assuming
those remarks were made, as Focht claimed. In the face of his
superior’s concern about Respondent-Employer’s position in
arbitration, it is not so surprising that Boyle would pad the rea-
sons recited in the termination memorandum.
One additional point should not pass without notice, since it
also appears to have influenced Boyle’s reluctance to give
Florian a break in evaluating whether to rescind his discharge.
During rebuttal, Drufke testified that Boyle had mentioned a
“problem which, the charge with the truck drivers,” saying that
he (Boyle) was ‘in the process of getting a written statement”
from a driver about Florian extracting money from that driver.
No such statement was ever produced, neither for Drufke nor
during the hearing. Still, Drufke’s rebuttal testimony should
not simply pass without notice.
When Boyle appeared as a witness, he never was asked dur-
ing direct examination about possessing any knowledge con-
cerning rumors of Florian seeking money from commercial
truckdrivers. Had nothing more happened, the record would be
left with a void regarding what Boyle may or may not have
known about, at least, the rumor that Florian had been doing
that. During cross-examination, however, an effort was made
to open an aspect of Boyle’s knowledge of such asserted con-
duct by Florian. That effort was objected to, correctly, as be-
yond the scope of direct examination of Boyle. After that ob-
jection was sustained, an offer of proof was made: that a “truck
driver told [Boyle] those things about Mr. Florian” in the pres-
ence of Escobedo. Though withdrawn, that offer of proof ef-
fectively obliterates any possible inference that Boyle had not
known about accusations that Florian had been charging com-
mercial drivers to load and unload them faster and, possibly as
well, for skids ordinarily provided by Respondent-Employer
free of charge to drivers, when available. If anything, the with-
drawn offer of proof effectively concedes that, in fact, Boyle
had some knowledge that Florian might be doing such things.
The withdrawn offer of proof is not the sole basis for con-
cluding that Boyle possessed that knowledge. As set forth
above, Drufke acknowledged that Boyle had mentioned a
“charge with the truck drivers.” Moreover, Escobedo described
a incident involving a Gorman Trucking driver whom Esco-
bedo had seen speaking with Boyle, though Escobedo had not
been able to overhear what they had been saying. Finally, Rob-
inson testified that, during the processing of Florian’s griev-
ance, Boyle had said that “he more or less had a witness that
[Florian] was talking [sic] kick backs from the truck drivers.”
Apparently, Boyle was unable to obtain any driver’s written
statement to that effect. Even so, obviously Boyle had become
aware of the possibility of such conduct by Florian. It did not
form a basis for terminating Florian on August 10. Yet, as with
the warnings in Florian’s personnel file, it became a considera-
tion for Boyle when weighing whether or not to rescind
Florian’s suspension and termination, when confronted by Re-
spondent-Union’s grievance concerning those disciplinary ac-
tions.
A copy of Florian’s termination memorandum was supplied
to Damron. That was ordinary procedure, testified Robinson.
As Steelworkers’ then-Staff Representative Langele testified,
“Rich Damron informed me” of the memorandum, during a
conversation about “setting up a third step meeting for a differ-
ent discharge case,” and, “I told him to, well, take it to proce-
dure. If it gets up to my step, let me know.” As pointed out in
subsection A above, Steelworkers’ representatives ordinarily
take over grievances once they progress to the third step of the
contractual disputes resolution procedure.
On August 10 Robinson called Florian, asking the latter to
come to the plant on August 13 to sign a grievance which Rob-
inson was preparing. That grievance was signed by Florian and
filed by Robinson on August 13. It protests two matters. First,
that Respondent-Employer “had A Policy, that Employees next
door, drove there [sic] cars next door before Work and after
Work, So Chester Wasn’t Leave [sic] the premises, he was
return [sic] From next door.” Second, the grievance states that
“Work Rule No. 10 Should have being [sic] descuss [sic] in our
First Meeting on Aug 7, 98. And should have being [sic] on
Letter Date [sic] Aug 4, 98.” As a remedy the grievance re-
quests, “Job Back, Back Pay for all Lost Days [&] hours loss
[sic].” So far as the evidence discloses, Florian never objected
to anything written by Robinson, nor sought to have anything
added to the grievance, when signing it on August 13. Nor,
when testifying, did Florian claim that anything had been omit-
ted from that grievance. Beyond that, there is no independent
basis for concluding that the grievance somehow was deficient
to the point of demonstrating a failure by Respondent-Union to
fairly represent Florian.
There is one significant point in connection with what next
occurred regarding Florian’s grievance. Under the disputes
resolution procedure set forth in article XIII of the 1995–1999
collective-bargaining contract, there seemingly should have
been, at least, a step 2 meeting with then-Regional Manager
Drufke. So far as the record shows, that never occurred and no
explanation is supplied by the evidence for that step’s seeming
omission. Apparently, by some point everyone understood that
Florian’s grievance was going to proceed directly to step 3.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1210
Thus, Florian answered affirmatively when asked if he had
known that Steelworkers would be involved at the next level,
after he had signed his grievance, and that Respondent-Union
would not be handling that next step meeting. “Let’s hope so,
yes,” answered Florian, when asked the latter. Given Florian’s
attitude toward Damron and Escobedo, and the primary theory
upon which the failure to fairly represent allegation is based, it
would seem that there can be no basis for concluding that the
Act was somehow violated because Steelworkers took over
processing Florian’s grievance after August 13.
Nevertheless, Focht seemed to be attempting to create some
sort of failure of that duty on and after August 13. According
to him, during a shop-floor conversation, which Focht placed as
having occurred after Florian’s grievance had been filed, Rob-
inson “just started out that he really thought it was unfair” what
had happened to Florian. Focht agreed and, according to Focht,
Robinson “told me that Chester had filed the grievance he had
to kind of do this on his own. That Rich and Manny and the
Committee wants nothing to do with this one,” or “he’s kind of
out on a limb because he has to control this one by himself
because the other Union employees told him they washed their
hands with Chester. If he wanted to grieve this and follow up
with it all the way, he’d have to do it on his own.” Robinson
never corroborated that testimony by Focht—never testified to
having participated in any such conversation and never testified
to having made those asserted remarks to Focht. Beyond that,
as set forth above, Robinson could hardly be regarded as having
“to control this one by himself” after the grievance had been
filed; Steelworkers’ representatives were going to be handling
the grievance’s processing. There seems no reason for Robin-
son to have made any such remark to Focht.
In sum, there is no credible evidence that Respondent-Union
had caused, or even attempted to cause, Respondent-Employer
to discharge Florian. Nor is there any credible evidence that
Boyle had discharged Florian for any reason proscribed by the
Act. The credible evidence shows that Florian, like other unit
employees, had been told that driving on South Kilbourn Street
between buildings while on the clock was no longer allowed.
Florian did so and was twice caught by Moore doing so. Thus,
he was suspended, then discharged, for disregarding specific
notice to cease driving between buildings while on the clock.
Furthermore, regardless of what Damron thought of Florian,
Robinson processed the suspension in the normal course of
affairs and, also, prepared a proper grievance after Respondent-
Employer made the decision to fire Florian. There is no credi-
ble evidence that, in taking those actions, Respondent-Union
had somehow violated the duty of fair representation which it
owed Florian, as his statutory bargaining agent.
I. Suspension and Discharge of White
Shipping clerk James White had been employed off and on
by Lithostrip and Respondent-Employer for approximately 33
years. Fifteen or 16 of those years had been at the Chicago
facility, though White had only worked there steadily for ap-
proximately 6 years prior to August of 1998. During 1967
White had been one of the Chicago employees who voted in an
election which culminated in representation by Respondent-
Union’s predecessor-union. Thereafter, White had served as a
union safety man during the latter 1970s.
After that, so far as the record shows, White never engaged
in any internal union activities. That is, he testified that he had
never been even a candidate for union or unit office. Nor had
he ever announced any intention to run against any incumbent
officer. Beyond that, there is no evidence that White had even
voiced support for Florian, Phillips, and Crylen in their failed
efforts to run for unit offices during early 1997. Nor is there
any evidence that White had voiced any kind of opinion about,
or support for, any intention by Florian to run for unit chairper-
son during 2000. In fact, there is no evidence that White had
any significant relationship with Florian prior to the latter’s
suspension and discharge.
As set forth near the beginning of subsection H above, White
had been working in the annex on August 4 and had been told
by Florian that the latter was being suspended for having driven
between buildings on August 3. Following that conversation,
testified both White and shipping clerk Ralph Nelson, White
had telephoned Nelson and warned that Nelson should not drive
between buildings after clocking in and before clocking out,
because Florian had been “fired” for doing so. Accordingly,
there can be no question that, as of August 4, White had under-
stood clearly that Respondent-Employer did intend to discipline
employees for driving on South Kilbourn Street between build-
ings while on the clock. Yet, that is precisely what White did 2
days later: on Thursday, August 6 he drove from the annex to
the main building to punch or clock out.
No supervisor observed White doing that on August 6. But,
annex loader George Hollins testified that he had seen White
making that drive between buildings. According to Hollins, he
had earlier warned White not to continue doing that, because
Boyle “is enforcing the rules,” but White had simply “waved
his hand” and said, “Oh, they ain’t going to do shit.” White
never was called as a rebuttal witness. So that testimony by
George Hollins is left uncontroverted. When he then saw
White driving from the annex to the main building on August 6,
Hollins testified, he reported what he had seen to Moore. Ini-
tially Moore testified that he had learned of that White had
driven between buildings “from a rumor in the plant.” Pressed
for greater specificity, Moore testified, “I believe it was Ricky
Hollin [sic], Ricky Hollin I believe his name was. I’m not real
sure.” Wrong brother, but essentially Moore corroborated the
testimony given by George Hollins.
As described in subsection A above, Respondent-Employer
has four security cameras surveilling perimeter areas of its Chi-
cago plant. At least for a time Respondent-Employer retains
tapes made by those cameras. Moore reviewed tapes to ascer-
tain whether or not they revealed White driving between build-
ings. They showed that White had done so on August 6.
Moore acknowledged that he had not examined those tapes to
ascertain whether any other employee had done so. Not sur-
prisingly, given that only White had been reported as having
driven between buildings while on the clock.
On Thursday, August 13 White was summoned to a meeting
with Moore. Present throughout that meeting was Production
Foreman Dedina. There is really very little dispute of conse-
quence regarding what had been said during the meeting. When
PRECOAT METALS 1211
Moore asked if White had driven between buildings “last Thurs-
day,” testified White, “I had to stop and think because, and I
says, yeah, I did.” According to White, Moore said, “Well, then
we have a problem. And he explained to me work rule 11, leav-
ing the premises and how could I be that stupid to do that 3 days
after Chester was just suspended.” White testified that he re-
plied, “I just did it because it’s been a habit for all these years. I
didn’t give it any thought. I didn’t try to embarrass anybody or
make a statement.” On its face, that explanation raises doubt
concerning the reliability of White’s statements.
After all, it is undisputed that White had been warned by
George Hollins that he (White) had best stop driving between
buildings, but had simply waved off Hollins. White admitted
that he had been told of Florian’s suspension, by Florian.
Seemingly, Florian’s suspension was not some easily forgetta-
ble minor event in White’s employment experience with Re-
spondent-Employer. White called Nelson to warn Nelson not
to do what had caused Florian to be suspended. Against that
immediate background, it is difficult to believe any explanation
by White that he had done so on August 6, simply because he
had not “give[n] it any thought.”
Beyond that, White never explained why he had chosen to
tell Moore that he “didn’t try to embarrass anybody or make a
statement.” Those are odd remarks—ones not likely to be
made by an employee being suspended. The fact that White
made those remarks is some indication that, in fact, he had
made his August 6 drive to the main building as some sort of
test of Respondent-Employer’s intentions, perhaps to ascertain
whether it would suspend any employee other than Florian for
doing that, given Florian’s suspicions, fed by Focht’s false
statements, that his suspension had resulted from a conspiracy
between Respondents to get rid of him.
In any event, White testified that when Moore said “well, we
have to suspend you,” he (White) had “asked for a union offi-
cial to be brought in,” and Damron, “the only union official on
duty,” was summoned to the meeting. After he arrived, testi-
fied White, “I explained to him, Mr. Damron, that I was being
suspended for driving around the building. And I, again, told
him that I, you know, Rich I didn’t do it because, you know, for
any, make a statement or be embarrassed or, I just did it.” In
other words, not only did White admit what he had done on
August 6 to Moore, but he admitted it to Damron in front of
Moore. Those admissions should not be overlooked, given that
Respondent-Union allegedly failed later to fairly represent
White.
Moore’s testimony about the meeting differed only some-
what from that of White. Moore testified that he had asked
White whether he had been “given permission for anyone to be
in his vehicle and he had told me no,” after which Moore
“asked him if he knew why he was in here and he told me yes
for violating work rule 11.” According to Moore, White added,
“I screwed up. I shouldn’t have done it.” Moore denied that he
had used the word “stupid,” but acknowledged to have said to
White, “Just how could you do the same thing Chester did.”
Now, given White’s above-described lack of any internal un-
ion activity prior to August 13, as well as the lack of evidence
that he had engaged in any union activities whatsoever that
might have come to the attention of Respondent-Employer, the
only possible argument, to support an allegation that White had
been suspended for a reason unlawful under the Act, is that
Respondent-Employer suspended White to conceal an unlawful
motive for having suspended and discharged Florian. As con-
cluded in subsection H above, however, a preponderance of the
credible evidence does not support unlawful motivation allega-
tions with regard to Florian’s suspension and discharge. Nor
does it establish that Respondent-Union had caused Respon-
dent-Employer to suspend and discharge Florian. Rather, a
preponderance of the credible evidence shows that Florian
would have been suspended and discharged, regardless of his
past and projected union activity and regardless of how Re-
spondent-Union’s officers felt about those disciplinary actions.
In light of those conclusions regarding Florian’s situation, there
is no room for a conclusion that Respondent-Employer had
suspended White in an effort to conceal an unlawful motivation
concerning Florian. The latter predicate finding for such a
theory does not exist.
That leaves for consideration the companion allegation that
Respondent-Union failed to adequately represent White, though
for the most part that allegation is based upon Respondent-
Union’s supposedly successful conspiracy with Respondent-
Employer to get rid of Florian, an assertion for which there is
no credible evidence. As quoted above, White testified that
Damron had been summoned to attend the latter phase of the
August 13 suspension meeting. Damron agreed: as he had been
checking his “mail box in the office,” he testified, “Moore
come [sic] in, got me and said that Jim White was in the con-
ference room and that he wanted me to come in there.” As
quoted above, White testified that, once Damron had arrived in
the room, he (White) admitted having driven from the annex to
the main building on August 6. Damron’s testimony supports
that of White: “Jim White started doing all the talking. He
says, I, I done it. I told him [Moore] I done it. It was wrong. I
done it, I told him I done it.”
After the meeting ended, testified White, he and Damron left
the room and Damron “told me that he would file the first step
grievance right away. He would let me know what’s going on,”
or, “he would file the grievance and he would advise me of
when the meeting would be set up,” concerning that grievance.
Damron never denied having made those statements to White.
Even so, there is a basis for doubting that Damron would have
said such a thing to White as early as August 13.
As set forth in subsection A above, article XIII, section 3 of
the 1995–1999 collective-bargaining contract provides for sus-
pension, while Respondent-Union investigates, prior to impos-
ing final disciplinary action upon a unit employee. Operation
of that provision was illustrated in the case of Florian: he was
suspended on August 4, a sit-down meeting was conducted on
August 7 and, only afterward, was Florian discharged. More-
over, only after that discharge did Robinson prepare a griev-
ance. As it turns out, no sit-down meeting was conducted for
White, possibly because his August 13 admissions to Moore
and Damron left Respondent-Union with little room to contest
discipline against him for having driven between buildings
while on the clock, given the prior suspension of Florian.
Still, there is no basis for inferring, much less concluding,
that as of August 13 Respondent-Employer had intended upon
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1212
discharge as a penalty for White’s infraction. So, as of that
date, there was really no basis for Damron to file a grievance.
As had been the case with Robinson’s grievance for Florian, a
grievance for White, in the ordinary course of affairs, would
not be filed until after Respondent-Employer had given notice
of its final disciplinary decision regarding White. That said,
there seems no reason for Damron to be saying on August 13
that he would be filing a first-step grievance at that point. Be-
yond that, there seems no basis for Damron to have assertedly
said that he would file a grievance. Doing so was the responsi-
bility of the appropriate-shift grievance committeeman, as Rob-
inson had done for Florian. That is but an added reason for
doubting that Damron had promised to file a grievance for
White, as White claimed that Damron had promised. Con-
versely, as discussed in subsection L below, White had another
reason to claim that Damron had promised to file a grievance
for White as early as August 13.
From General Counsel’s and Charging Parties’ viewpoint,
special significance attaches to an event that occurred on the
day after White’s suspension. On that day, all agree, Boyle and
Moore participated in a meeting with White at the Illinois Bar
and Grill, near Respondent-Employer’s Chicago facility.
White testified that he had left his home that day and had
gone to Duffy’s, a bar, where he shot darts and consumed one
beer. After doing that for approximately a half-hour, he testi-
fied, his wife telephoned the bar and, when he came to the
phone, said that Boyle had called their home and wanted her to
“get a hold of me to have me call back to the plant.” “Had to be
4:30, quarter to five,” testified White, when he called the plant
and, after connecting with Boyle, “he asked me to meet him to
discuss this situation,” to which White responded, “sure be-
cause I want my job back.” According to White, Boyle “asked
me if I would meet him up at the Illinois Bar and Grill about
5:30,” and White agreed to be there. Boyle and Moore ad-
vanced a quite different description regarding how that meeting
came to be convened.
“I had a message on my desk to call Jim White,” Boyle testi-
fied, and “[a]bout five minutes until 5:00 I finally returned his
call. I got his wife. I left a message with her to call me back.”
“About 20 minutes later, probably a quarter after 5:00 Mr.
White called me,” testified Boyle, and “I asked Mr. White if he
wanted to meet with me. He said he did. And I said fine. I’m
getting ready to leave for [sic] work. I’m going to stop and get
something to eat at the Illinois Bar and Grill. You can stop by
there if you want to and talk to me.” White agreed to do so,
Boyle testified.
Boyle did not intend to meet alone with White. Moore testi-
fied that, as he was working “at the exit end of the line[,] Mr.
Boyle got in touch with me and told me that Mr. White had
called him and wanted to have a meeting with him at the Illi-
nois Bar and Grill to talk about his job or replacing [sic] him
somewhere to that affect [sic],” and that Boyle “wanted me to
go there to be a witness on this meeting.” Thus, both officials
proceeded to the Illinois Bar and Grill, there meeting with
White.
White testified that when he arrived there at “5:30,” Boyle
and Moore “were there” already. According to White, he was
told to, “Sit down and have a beer.” “I told [Boyle], I, you
know, I’m sorry for screwing up his job or his case against
Chester,” testified White, but “Boyle says, you didn’t screw up
nothing. We’re going to get Chester. It’s just that you made it
a little more complicated and you [sic] have to get you along
with him and we’re going to do this. But we don’t want to get
rid of the older employees that have been there with good work
records and everything, so we have a problem, he says.” Ac-
cording to White, “I told him, you know, I want to keep my job
and get back.”
To that, White testified, Boyle said, “well, what we can do
is, we’re going to go through Chester’s case and we’re going to
have to go through with your case. But in about four to six
weeks we’ll have an opening out in Portage,” and “we’ll put
you back to work out there,” or, “go ahead and file for unem-
ployment. He says put down the reason lack of work. And
there would be no problem with that. He says, take four to six
weeks off and we’ll have you back to work” at Portage, or, “go
file unemployment, to take, it’ll take four to 6 weeks. We’ll
have you back to work out in Portage.” According to White,
Boyle also “told me he couldn’t, that he wasn’t going to bring
me back to the Chicago facility because that would, then he’d
have to bring Chester back and he’s not going to do that.”
With respect to any grievance, White testified that Boyle
said “that it was going to run its course and that I would be
fired have and run [sic] and rehired out in Portage,” or, “go
through the process of filing a grievance. And let the grievance
walk through and it’ll, we’ll work it all out there and then that
I’m not coming back. And that in four to six weeks that he’ll
hire me out in Portage,” but “I would keep, that all my benefits
would stay the same because of my pension stuff because I’d be
hired right back in the Sequa Precoat system.”
According to White, Boyle also said, “we’ll go through the
first step and he says, why don’t we just waive the second step
and get right to the third?” or, “let it go through its course and
waive the second step. At the first staff [sic] meeting, we’ll let
that go park [sic], and then we’ll waive the second step of the
meeting [sic], and then we’ll go right on to the third step.”
White further testified that, near the end of the meeting, Moore
chimed in by saying, “just take the four to six weeks vacation,
spend some time with your wife, collect unemployment and
we’ll have you back to work soon.”
Now, before going any further, it should not be overlooked
that none of White’s above-quoted testimony, about what as-
sertedly had been said by Boyle and Moore and the Illinois Bar
and Grill, suffices to show that either Florian or White had been
suspended—nor, in Florian’s then-existing situation, dis-
charged—for any reason proscribed by the Act. In fact, White
was an “older employee[ ]” of Respondent-Employer. More-
over, while that employment was not completely unblemished
by prior discipline, there is no evidence showing that White’s
disciplinary record had been so tarnished with past written
warnings as had been that of Florian—that White had “a very
thick personnel file,” to use Drufke’s description, as was the
fact concerning Florian. Further, in contrast to Florian, White
had never disregarded a direction by Boyle, as had Florian on
August 3, nor is there evidence of even rumors that White had
exacted any money from commercial truckdrivers, as was ru-
mored about Florian. Thus, in contrast to Florian, Boyle had no
PRECOAT METALS 1213
particular reason to be disturbed by any aspect of White’s em-
ployment, other than the latter’s August 6 violation of work
rule 11, viewing the matter from Boyle’s perspective.
Beyond that, White conceded that Boyle “[n]ever spoke to
me about Union office” on August 14. White also testified that
Boyle had never said “that he was going to get Chester for any
Union activity. But he was going to get Chester. He did say
those words in my presence. Nothing to do with the Union.”
White further conceded that, during the August 14 conversa-
tion, Boyle had never said that his reason for taking action
against White or Florian had been because of anything that
Damron had said. In fact, White agreed, Boyle had never said
that he was in any way making any decision based on any effort
by anybody to run for union office. Finally, White admitted
that neither Boyle nor Moore had said anything in any way
indicating that his and Florian’s situations had been based upon
anything given, said, urged or presented to Respondent-
Employer by Respondent-Union or by Damron. In short,
White’s testimony shows no more than that, on August 14,
Boyle had treated two differently situated employees, who had
committed the same infraction, differently based upon legiti-
mate considerations arising from their comparative employ-
ment histories.
As pointed out above, Boyle testified that it had been White
who had initiated the telephone contract which led to the Illi-
nois Bar and Grill meeting. There, testified Boyle, “White
started the conversation by wanting to know what he had to do
to come back to work for Precoat Metals, Chicago. I told him
that was not possible. That he had to go through the grievance
procedure.” According to Boyle, White said “he had some
information that I needed to know,” but Boyle rebuffed that
offer, saying “I didn’t care about what type of information he
had.” White asked “if I could do anything for him in Chicago,”
or whether he [c]ould . . . get a job at Portidge [sic],” testified
Boyle, but “I said no. You’ve got to go through the grievance
procedure in Chicago.” As to mention of Florian during this
conversation, Boyle agreed with White’s above-described tes-
timony that it had been White who first mentioned Florian.
But, Boyle testified, “I told him I didn’t want to talk about it. It
wasn’t an issue.”
Moore testified that, “Mr. White basically started talking
about getting his job back in Chicago or if he couldn’t get his
job back in Chicago if he could get a job in Portage,” but “Mr.
Boyle basically told him that he couldn’t do anything to that
affect [sic] until he exercised all his grievance procedures and
so forth.” Moore did not remember anything having been said
about Florian, but did remember White having said “something
about” things that were going on in the Chicago facility: “He
said that there were things that he knew about in Chicago plant
that could help Mr. Boyle,” but that White “didn’t explain at
all” what he meant by that. Moore denied specifically having
told White to take a 4 to 6 week vacation, spend some time
with his wife, collect unemployment and having White back to
work soon.
Boyle denied having said that White did not screw up any-
thing, we are going to get Chester, it’s just that you made it a
little more complicated. He also denied having told White all
we can do is go through with Florian’s case and your (White’s)
case, then have an opening in Portage in about 4 to 6 weeks.
Boyle denied having said we have a problem because we don’t
want to get rid of older employees who have been here with
good work records. Further, Boyle denied specifically having
told White that he (Boyle) would get White a job in Portage
and, in addition, denied having said that he could not bring
White back to the Chicago facility because he (Boyle) would
have to bring Florian back. He denied, as well, having said that
he was going to get Florian. Finally, Boyle denied having said
either that White should skip the second step of the grievance
process, or that White should go through the union steps and in
4 to 6 weeks Boyle would hire White in Portage.
To a degree Moore corroborated those denials by Boyle,
though some questions put to him did not allow for Moore to
do so unequivocally, given some of credibility discussion in
subsection A above. Thus, in effect, Moore testified that he did
not recall Boyle saying that if he brought back White he would
have to bring Florian back and that was not going to happen.
Moore testified that he did not recall Boyle saying that Respon-
dent-Employer would get Florian anyway and he did not care
how long the case took. Moore testified that he did not recall
Boyle having said that White should let his discharge go and in
4 to 6 weeks Respondent-Employer would have a position in
Portage that White could have. Moore testified that he did not
recall Boyle having said that White should file for unemploy-
ment and, in doing so, say that he had been let go for lack of
work. In the final analysis, lack of perfected denials by Moore
does not detract from the credibility of denials which were
perfected from Boyle. Nor does the lack of perfected denials
from Moore lend any plausibility to White’s testimony about
the Illinois Bar and Grill meeting.
To be sure, that meeting did occur and Boyle never ex-
plained why had had been so willing to meet with an employee
suspended only the preceding day. Yet, it is implausible to
accept that Boyle would have initiated such a meeting. True,
White was an “older” employee. However, there is nothing in
the record even suggesting that White had been so highly re-
garded or valued an employee that Boyle would likely make
overtures to effectively reverse the suspension imposed on
White. So far as the evidence reveals, Boyle had little, if any,
knowledge about White as of August 14. There is simply no
basis for believing that Boyle would have gone out of his way
to have White rehired eventually in Portage, in the process
possibly compromising Respondent-Employer’s position in
disputes resolution proceedings concerning Florian.
The unreality of White’s testimony about that meeting is
only reinforced by evaluation of Boyle and his situation as of
August 14. While he was testifying Boyle impressed me as a
no-nonsense individual, as well as a strict disciplinarian. In
fact, the latter was his reputation when he arrived at the Chi-
cago facility during mid-1998. If nothing else, his background
shows that he regarded strict work-rules enforcement to be an
integral component of correcting poorly performing facilities.
Yet, White’s testimony about the August 14 meeting effectively
portrayed Boyle as having been freely, almost cavalierly, will-
ing to make exception to all of that for an employee whom, so
far as the record discloses, Boyle then barely knew, if at all.
That simply seems implausible, as an objective matter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1214
Beyond that, as will be seen, as August progressed, it be-
came apparent that Respondents would be skipping the second
step of the contractual grievance procedure—meeting with the
regional manager—and proceeding directly to the third step of
the grievance procedure, both for both Florian and White. As
pointed out in footnote 1 above, White did not file his charges
until September 4. By that time the second grievance step had,
in fact, been skipped and third-step grievance meetings had
been conducted for both Florian and White. Given the benefit
of that hindsight, by the time of filing his charge, it became a
relatively easy matter to attribute a step-skipping statement to
Boyle during White’s descriptions advanced in support of his
charge. Yet, skipping a grievance step was not so plausible an
option for Boyle as of August 14. After all, that could not be
accomplished unless Respondent-Union and Steelworkers
agreed to doing so. Nothing the record even indicates that ei-
ther would have been willing to do that as of that time.
In a memorandum dated August 18, Respondent-Employer
terminated White. In addition to that date, two aspects of the
memorandum must be pointed out. First, in contrast to the
termination memorandum for Florian, the one for White is
signed by Moore, not by Boyle. Secondly, the text of the
memorandum for White’s termination is almost identically-
worded to the one prepared for Florian: “The above subject,
Jim White, has violated Work Rule No. 10 and No. 11; there-
fore he is terminated—8/13/98.” Yet, unlike Florian, White
had never disregarded a supervisor’s direction to punch or
clock out. Nor is there any evidence whatsoever showing that
White had violated work rule 10 in any other manner. Moore
never explained why that work rule had been included in
White’s termination memorandum.
As it turned out Moore, or someone under his direction, had
been no more than the scrivener of White’s termination memo-
randum. Boyle testified that he had made the decision to fire
White, but had been working in Portage on August 18. So he
had telephoned Moore and directed him to prepare a termina-
tion memorandum for White. Moore did so and, then, issued
the memorandum without, so far as the evidence shows, having
first shown it, or even read it, to Boyle. Now, such a scenario
leaves somewhat of an impression of undue haste in preparing a
termination memorandum for White, at least as a first impres-
sion.
It should be remembered that the theory underlying the alle-
gation of unlawful motivation for White’s suspension and dis-
charge is that he had been terminated to conceal an unlawful
reason for having suspended and, then, discharged Florian. As
concluded in subsections G and H above, there is no credible
evidence which establishes motivation unlawful under the Act
for either the decision to suspend or the decision to discharge
Florian. Moreover, so far as the record discloses, neither at the
time of Florian’s suspension, nor at the time of his discharge,
was there any basis for Respondent-Employer to anticipate that
Florian might file an unfair labor practice charge concerning
those disciplinary measures. Rather, so far as the evidence
shows, Respondent-Employer could only fairly anticipate that
those disciplinary measures would become subjects of contrac-
tual disputes resolution procedures.
Florian filed his unfair labor practice charges against Respon-
dents on August 14, as stated in footnote 1, supra. Of course,
that was a day after White had been suspended for engaging in
the same act of misconduct as led to Florian’s suspension and
termination. So, to that extent, there might have been some
basis for arguing that Florian’s charge had motivated the deci-
sion to fire White: so that Respondent-Employer would be able
to demonstrate consistency of treatment in the case of another
employee who had committed the same rules infraction as had
Florian. Such a motive would show that, even though Respon-
dent-Employer had not suspended or discharged Florian for
unlawful reasons, it had done so when it decided to fire White,
so that it could protect itself against Florian’s charge. Whatever
merit such an argument might have in other circumstances,
however, it falls flat here upon examination of the service sheet
and postal return receipts for Florian’s August 14 charges.
Those charges were served upon Respondents by certified
mail. Accompanying each was a form letter signed by the Re-
gional Director for Region 13. Both of those letters bear the
date “August 18, 1998,” the same date as that of White’s termi-
nation memorandum. Moreover, the jurat on both letters states
that each was “served . . . on this day” of “19th day of August,
1998,” the day after that of White’s termination memorandum.
Finally the postal receipts for those charges and the accompany-
ing Regional Director’s letter each bear a handwritten date of
“8/21/98.” Clearly, the termination memorandum for White had
been prepared and issued well before either of Respondents had
actually received Florian’s charges. And there is no evidence
that earlier notice of those charges had been given to either of
Respondents by some other means prior to August 21. In con-
sequence, there is no room for an argument that notification of
Florian’s charge had somehow influenced Boyle’s decision to
terminate White for having driven on South Kilbourn Street
between buildings while on the clock.
To the contrary, there was a perfectly logical contractual rea-
son for Boyle to have called from Portage on August 18 to have
Moore prepare White’s termination memorandum. Article XIII
of the 1995–1998 collective-bargaining contract requires that,
following the preliminary investigative suspension, “written
notice of the company’s final decision will be given to the em-
ployee and union no later than the end of the sixth (6th) day”
after the suspension was imposed. White had been suspended
on August 13. The sixth day thereafter would have been Au-
gust 19. Before being issued, the termination memorandum
had to be drafted and typed. Thus, to avoid any delay beyond
the sixth day after White’s suspension, it would hardly have
been illogical for Boyle to have telephoned from Portage and
told Moore to have a termination memorandum prepared for
White. Doing so allowed seemingly sufficient time for drafting
and typing the memorandum, as well as for its dissemination as
required by the collective-bargaining contract.
No effort was made by any party to ascertain precisely what
instructions Boyle had spoken to Moore on August 18. So far
as the record shows, consequently, Boyle had done no more
than direct Moore to prepare a termination memorandum for
White and, in turn, Moore, or whomever received his direction,
had simply copied the most recently-issued termination memo-
randum—the one issued to Florian 8 days earlier. Of course,
PRECOAT METALS 1215
there is an element of speculation in such a description, given
the paucity of evidence regarding what had been said by Boyle
to Moore. In the final analysis, nonetheless, it is not the prepa-
ration of White’s termination memorandum that is the crucial
consideration in assessing Respondent-Employer’s motivation
for having decided to fire White.
As to that motive, Boyle denied specifically that he or any-
one at his direction ever discharged White to make a stronger
case in connection with Florian’s suspension and discharge.
Each and every reason for his decision to terminate White,
testified Boyle, had been “violation of Company work rule 11.”
Of course, that is exactly what White had admittedly done. In
the abstract, of course, discharging White for that reason could
have been an effort to conceal an actually unlawful motive for
earlier suspending and discharging Florian for having done the
same thing as White later did. As already concluded, however,
a preponderance of the credible evidence fails to establish
unlawful motivation for Florian’s suspension and termination.
Instead, it establishes that Florian was suspended and termi-
nated for engaging in an action which violated a work rule, as
interpreted by the relatively newly-arrived plant manager, and
which was no longer going to be tolerated in Chicago.
On August 6, White engaged in the same conduct as had
Florian on August 3. Respondent-Employer’s belated discov-
ery of what White had done led it to the same consequence as
had occurred when Florian had been caught: White was sus-
pended and, then, discharged. Rather than showing conceal-
ment of earlier unlawful motivation, a preponderance of credi-
ble evidence shows no more than lawful consistency of disci-
pline imposed for identical misconduct. That result is not
changed by recitation of an inapplicable work rule in White’s
termination memorandum. Its inclusion there, at most, shows a
lack of proper attention to what was done on August 18. In any
event, a “defense does not fail simply because not all of the
evidence supports it, or even because some evidence tends to
negate it,” Maple Grove Health Care Center, supra.
Turning to the alleged failure of Respondent-Union to prop-
erly represent White, that allegation is based largely on the
theory that Damron had been attempting to persuade Respon-
dent-Employer to get rid of Florian and, having accomplished
that objective on August 10, it could no more fairly represent
White, suspended and discharged for the same misconduct as
Florian, than it was able to fairly represent Florian. Of course,
as concluded in preceding subsections, there is no credible
evidence that Damron had been attempting to cause Respon-
dent-Employer to fire Florian and, further, no evidence that
Respondent-Employer had acted on August 3, 4, and 10 in
response to anything Damron might have said. Accordingly,
the failure to fairly represent allegation regarding White falls
under the basic theory advanced to support it: Respondent-
Union had not caused Florian’s suspension and discharge, it
had not been failing to fairly represent Florian as of August 13
and 18, and, therefore, there is no basis for concluding that it
had not fairly represented White in an effort to conceal its own
supposed role in causing Florian’s suspension and termination.
As set forth above, White portrayed Damron as intending on
August 13 to rush out and file a grievance concerning White’s
suspension, even though such an action would be wholly pre-
mature as of that date. Moreover, as shown by what had oc-
curred in connection with the grievance filed on behalf of
Florian, described in subsection H above, it is not the unit
chairperson who files grievances for unit employees of Re-
spondent-Employer in Chicago. That is the responsibility of
the appropriate-shift grievance committeeman. In White’s
case, that would have been Morales.
In fact, Morales was told that he would be handling White’s
situation. As discussed in subsection B above, Morales, as well
as Escobedo, had no experience as grievance committeeman
until elected to that position during early 1997. Though both
had occupied their position for over a year by August of 1998,
there is no evidence showing that, by that time, either one had
handled a discharge or potential discharge situation. After
prevailing in being elected, the two of them had agreed to work
together handling grievances that each was primarily responsi-
ble for processing. “Me and Eddie were new at this and we had
talked before that if we ever had a grievance, we would both
stick together and, you know, work through it together,” testi-
fied Escobedo.
The first significant point emerging in connection with
White’s suspension is that, in contrast to Robinson’s handling
of Florian’s suspension, there is no evidence that Morales had
requested a sit-down meeting before any final decision was
made to fire White. Failure to do so was never explained. Still,
it cannot be fairly concluded that failure to request a sit-down
meeting somehow prejudiced White and constituted a failure to
fairly represent him. As mentioned above, in contrast to
Florian’s situation as of August 7, there was little to be gained
from pleading in a sit-down meeting that White should not be
disciplined. He had already admitted to Boyle that he (White)
had driven on South Kilbourn Street from the annex to the main
building to punch or clock out. He had already admitted to
Boyle that doing so violated work rule 11. He had already
admitted to Boyle that what he had done was wrong. Against
that background, there seems little basis for Morales to plead
that Respondent-Employer should not take further disciplinary
action against White, particularly in light of Florian’s quite
recent suspension and discharge for the very rule infraction
which White had already admitted to Boyle having committed.
It was hardly illogical, nor certainly unlawful, for Respondent-
Union to sit back at that point, keep its powder dry and wait to
see what Respondent-Employer intended to do following
White’s August 13 suspension.
The first step of the contractual grievance procedure is a
meeting between the employee, “either alone or accompanied
by the union representative as the employee may desire,” and
that employee’s supervisor. In the case of White’s termination
it had been Plant Manager Boyle who made the discharge deci-
sion. Unlike what Robinson had done immediately after
Florian’s discharge, Morales did not immediately file a griev-
ance. Instead, he testified that he “scheduled [a] meeting with
the company” for 9 a.m. on August 24. Then, testified
Morales, he telephoned White’s home, but White “wasn’t
there,” and Morales was only able to speak with White’s wife.
“I asked her if she could have Jim White call me as soon as
possible,” testified Morales. “He didn’t call me back” that day,
he further testified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1216
No question that Morales had made that telephone call to
White’s home. White acknowledged that “my wife did” re-
ceive a telephone call from Morales. And White also acknowl-
edged that he had not returned the call, as Morales had re-
quested. “Because I didn’t know where to return his call to,”
claimed White. However, he never claimed that he had at least
tried to call Morales at Respondent-Employer’s Chicago facil-
ity. Nor did White claim that he had made any effort whatso-
ever to make such a call to obtain Morales’s home telephone
number from Respondent-Employer. Nor did White testify to
having even tried to call a coworker—particularly to Robinson,
Escobedo, or Damron—to obtain a home telephone number for
Morales.
Having not received a return call from White, Morales testi-
fied that “I called him back” the following day, “I believe it
was.” During that conversation, Morales testified that he ad-
vised White of the date and time of the first-step meeting with
Respondent-Employer, but that White “said he couldn’t make it
there at that time. That if he could come in a little later.” Ac-
cording to Morales, they agreed to start the meeting at 9:30
a.m. on August 24 and Morales so advised Respondent-
Employer.
White made no mention of having received a call from
Morales during which he (White) was notified specifically of
the date and time for the meeting with Respondent-Employer
and, moreover, during which there had been agreement to post-
pone it’s start time until 9:30 a.m., at White’s request. Thus,
White never denied Morales’s testimony that he had called
White and that those discussions had occurred during that tele-
phone conversation. Instead, as will be seen in the second suc-
ceeding paragraph, White claimed that it had been Damron
from whom he had received notification of the date and time of
the first-step grievance meeting.
There was corroboration for the testimony by Morales about
a second call to White’s home, one during which the date and
time of that meeting were discussed by Morales. Escobedo
testified that he had been “sitting there” in the room from which
Morales had called White. Obviously, Escobedo had not been
able to hear the words spoken by White during that telephone
conversation. However, Escobedo testified that he had heard
Morales saying “the meeting was scheduled for 9:00 o’clock,”
and, then, “Okay, . . . we’ll make it at 9:30.”
White testified that “Damron called my house” on a Saturday
which he eventually placed as having been August 22. Accord-
ing to White, Damron said that the meeting was scheduled for 9
a.m. on Monday, August 24. “I asked [sic] Mr. Damron then if,
that I couldn’t make it at 9:00 o’clock. It would be about 9:30,
9:15, 9:30,” testified White. Furthermore, according to White,
he asked Damron “would he please set up a meeting with Mr.
Boyle maybe five minutes before the meeting because I’d like to
turn down the offer that was proposed to me,” or, “I was turning
down the offer that Mr. Boyle made,” or, “I want to talk to him
and turn down the offer that Mr. Boyle made me.” Now, despite
the significance which he appeared to attach to the purported
offer made to him at the Illinois Bar and Grill, White never
claimed that he had related what had assertedly been said there
to any official of Respondent-Union. Apparently, everyone is
supposed to simply assume that Boyle or Moore told Damron
about that purported offer. For when he had mentioned an offer
to Damron during their phone conversation, White claimed that
Damron “said he knew about the offer,” and, moreover, “would
set up the meeting for me.” “He says, I’ll set the meeting up for
you,” testified White.
Damron agreed that he and White had participated in a tele-
phone conversation during which mention had been made of
White wanting to meeting with Boyle. Damron did not testify
about how that conversation came to be conducted. Obviously,
it was a conversation which had taken place in addition to the
above-described one between White and Morales. According
to Damron, “he asked me would I set up a meeting for him with
Mr. Boyle. And I told him I’m not accustom[ed] of [sic] doing
that. I don’t do that.” Even so, testified Damron, White per-
sisted: “And he asked me would I please ask Boyle to would he
set up a meeting and if so call him or something like that and
which I did,” or, at least, “tried to.” Damron made no mention
of having known about some sort of earlier offer by Boyle and
Moore to White, as of the time of his telephone conversation
with White. To the contrary, as to that August 24 prefirst step
grievance meeting, testified Damron, “I don’t know what it was
for.”
As discussed in this and in preceding subsections, Damron
did not always advance testimony that seems reliable. How-
ever, all of the testimony in the immediately preceding para-
graph was elicited from Damron during cross-examination.
Accordingly, there is no basis for inferring that Damron had
been prepared to testify about that telephone conversation with
White. Given that seeming lack of preparation to testify about
it, Damron’s testimony about the telephone conversation carries
some inherent credibility, that might not be the fact had it been
elicited from him during direct examination by friendly coun-
sel. Given the general lack of credibility demonstrated by
White as he testified, there is a greater basis for crediting Dam-
ron’s account of this telephone conversation with White, than
for crediting White’s above-described testimony regarding his
telephone conversation with Damron.
It might be argued that White’s account gains some inherent
force from Damron’s acknowledgment that he agreed to
White’s request for a meeting with Boyle. Yet, as quoted
above, White had a contractual right to meet at the first griev-
ance step with Respondent-Employer without the presence of a
representative of Respondent-Union. White had a similar statu-
tory “right at any time to present grievances to [his] employer
and to have such grievances adjusted, without the intervention
of the bargaining representative,” under the first proviso to
Section 9(a) of the Act. So, inference adverse to Respondent-
Union cannot be drawn from Damron’s eventual willingness to
try to arrange White’s requested meeting with Boyle, even
though Damron had not been aware of what White wanted to
discuss at that meeting.
Apparently Damron neglected to tell either Morales or Esco-
bedo that White would be meeting with Boyle before the first-
step grievance meeting. Those two grievance committeemen
each testified to having been shocked to discover, when they
arrived for the 9:30 meeting on August 24, that White was al-
ready present in the conference room with Boyle and Moore.
Nevertheless, Damron’s failure to communicate to Morales that
PRECOAT METALS 1217
such a meeting would be occurring, before the first-step meet-
ing, cannot be characterized as some sort of failure to fairly
represent White. Even had Damron told Morales or Escobedo,
White still had contractual and statutory rights to meet with
Respondent-Employer.
Only White testified about what had been said during his
prefirst step grievance meeting with Boyle and Moore. Ac-
cording to White, he told those two officials that he was reject-
ing their Illinois Bar and Grill offer of eventual Portage reem-
ployment: “I have an old car. It’s 110 miles round trip. Win-
ter’s coming up. I would probably end up getting fired because
my car broke down. And there’s no buses out to Indiana from
Chicago. That I would have to turn the job down.” Neither
Boyle nor Moore denied that White had made those statements
to them prior to the August 24 grievance meeting.
Obviously had White said those things to them on August
24, that would seemingly reinforce his testimony that, at the
Illinois Bar and Grill, Boyle had offered White eventual reem-
ployment at Respondent-Employer’s Portage facility. Yet, as
concluded above, even had such an offer been made to White
on August 14, it would not show—or, even, tend to show—
unlawful motivation for either Florian’s suspension and dis-
charge, nor for White’s suspension. All such an offer would
have shown is that Boyle had been willing to give a second
chance to a long-term employee with a relatively clean em-
ployment record, while being unwilling to extend a second
chance to an employee who had “a very thick personnel file,”
who had a reputation for extracting money from commercial
truckdrivers to do his job and for skids ordinarily provided
without charge, who had disregarded a work rule prohibition
only recently announced by Boyle, and who had declined to
follow Boyle’s direction on August 3.
Beyond that, as also concluded above, there is no credible
evidence that any reemployment offer had been made to White
at the Illinois Bar and Grill. Why, then, would he have ar-
ranged to meet with Boyle and Moore? Possibly to plead the
same arguments that he had advanced to them on August 13:
that he had not been “try[ing] to embarrass anybody or make a
statement.” Possibly to repeat his own offer to reveal “informa-
tion” concerning “things that he knew about in the Chicago
plant.” No one will know with certainty, given the state of the
record. What can be said is that the fact that White chose to
meet privately with Boyle and Moore on August 24, of itself,
does not necessarily establish, nor support an inference, that on
August 14 Boyle and Moore had made an offer of eventual
reemployment at the Portage facility. In the context of the
totality of the circumstances, that prefirst step grievance meet-
ing conversation is too vague and ambiguous an incident to
allow for any inference to be drawn from its occurrence, much
less to admit of any firm conclusion based upon its occurrence.
The general unreliability of White’s testimony is but further
revealed by examination of his testimony about what had oc-
curred during the first step grievance meeting. During direct
examination he testified that Morales had “said, we believe this
punishment is too severe for this. Jim [White] what do you
have to say?” According to White, “at this point, again, I just
stated what I said before, that I drove around. It was just an
accident. I didn’t do it for, to embarrass, to make a statement
or anything.” White further testified, “At this point Mr. Boyle
says that, well, we got five days to answer this. Why don’t we
waive the second step meeting here and we’ll go right into the
third step,” to which White “agreed because, again, I would
hasten, you know, hasten the thing. Why go through another
five days waiting around? And it was agreed and the meeting
ended.” No one else—not Morales, not Escobedo, not Boyle,
not Moore—testified about what had been said during the meet-
ing. No aspect of White’s testimony, about what had been said
during it, was refuted. Yet, when the entirely of White’s testi-
mony about that meeting is examined, problems arise regarding
its reliability.
First, during cross-examination, White initially repeated that
“Mr. Morales said we believe this punishment is too severe,
Jim, what do you have to say? That’s all Mr. Morales said.”
“That’s it,” reiterated White; “He didn’t say much at all of any-
thing and then he just turned it right over to me.” Asked
whether Morales had also told Boyle that White had a good
work record, that this should not apply to White, and that Re-
spondent-Employer should not take that type of action against
White, White answered unequivocally, “No, he said that he just
believed that the punishment was too severe.” But, as cross-
examination progressed, White began to retreat from his earlier
“all Mr. Morales said,” “That’s it,” and “that he just believed
that the punishment was too severe” assertions.
Asked again if Morales had said that White had a good work
record and this should be resolved some other way, White an-
swered in a manner that began to contradict his earlier testi-
mony: “He might have said that, if he did, I don’t remember it.”
Retreat turned into rout when White then was shown a portion
of his prehearing affidavit. It states: “Morales told Boyle that I
had a good work record and that maybe this could be handled
another way.” “Okay,” allowed White, he had said that during
investigation of his charges against Respondents. Asked if
Morales had actually said that during the first step grievance
meeting, White conceded, grudgingly, “Yes, all right. That’s
pretty close to it or what I said.” Still, White persisted in at-
tempting to protect his above-quoted initial testimony, by add-
ing that Morales “didn’t say much at all of anything,” but never
bothered to explain what Morales had omitted that could have
been argued on White’s behalf, given the situation. In sum, by
the time that his testimony had been completed, White had
given internally contradictory testimony about what Morales
had said during the August 24 first-step grievance meeting.
Second, the fact is that, by August 24, Morales had been left
with a very limited area within which to argue on behalf of
White. Morales could hardly argue persuasively that, by Au-
gust 6, White had lacked notice that driving on South Kilbourn
Street while on the clock violated a work rule; White knew that
Florian had been suspended for having been caught doing ex-
actly that on August 3. Morales could hardly argue persua-
sively that White had not driven on August 6 from the annex to
the main building while on the clock; White had already admit-
ted to Respondent-Employer having done so. All that was left
to Morales, as an objective matter, were arguments based on
White’s work history and, in addition, disproportion between
offense and punishment. As White ultimately conceded, albeit
grudgingly, Morales had advanced both arguments to Boyle.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1218
Even so, throughout his descriptions of the meeting, White
made occasional disparaging references to Morales having “just
turned it right over to me.” For example, asked if it could not
be said that Morales had represented him fairly by the argu-
ments which White ultimately conceded that Morales had
made, White retorted: “It doesn’t sound like it very much to
me. Then he turns to me and he wants me to do the rest of the
talking, no.” Well, given what he had done and admitted hav-
ing done on August 6, White certainly had been in the best
position to advance whatever arguments could be made on his
own behalf, in addition to those advanced by Morales. As con-
cluded in the immediately preceding paragraphs, Morales had
already made whatever arguments seemingly could have been
made plausibly on behalf of an employee in White’s position.
If there might be any others, Morales was doing no more than
offering White an opportunity to advance them. There is no
evidence that White took advantage of that opportunity on Au-
gust 24. Indeed, as with Florian’s inability to describe any
further arguments that Robinson, Damron or any other official
of Respondent-Union could have advanced during the August 7
sit-down meeting, White never testified about any added argu-
ments that could have been made on his behalf on August 24.
Third, as set forth above, White testified that Boyle had sug-
gested, during the first-step grievance meeting, “waiv[ing] the
second step [grievance] meeting,” and going directly “into the
third step.” Of course, by so testifying White reinforced his
own testimony that Boyle had earlier proposed such a course,
during the Illinois Bar and Grill meeting. Yet, there is consid-
erable basis for doubting, as an objective matter, that Boyle
would have made such a proposal to Morales on August 24. As
a threshold consideration, Boyle had supposedly made such a
proposal, to skip the second grievance step, in the overall con-
text of a settlement proposed to White at the Illinois Bar and
Grill. By the time of the first-step grievance meeting, accord-
ing to White’s account, White had rejected that settlement. So
far as the evidence shows, Boyle had no particular reason, in-
dependent of a supposed overall proposal made at the Illinois
Bar and Grill, to suggest skipping a step in the contractually-
specified grievance procedure. There is no evidence that Boyle
had anything to gain by making such a proposal.
Moreover, neither Morales nor Escobedo were in a position to
make such an agreement. Nor, in truth, was Boyle. The second
grievance step involved a meeting with Drufke, Boyle’s supe-
rior. There is no evidence that Drufke had authorized Boyle to
make such a proposal, nor that Drufke had been willing as of
August 24 to be excluded from the contractually-specified
grievance procedure. On the other side, Steelworkers’ represen-
tative would be injected into grievances processed beyond the
second contractually-specified step. As will be seen, eventually
that step was skipped for both Florian and White. Yet, as of
August 24, there is no evidence that Steelworkers had agreed to
accept grievances on behalf of either Florian or White without a
second step meeting having been conducted. And there is no
evidence that a grievance committeeman had authority to cava-
lierly commit Steelworkers to such a course. Nor is there evi-
dence that Boyle believed that a grievance committeeman pos-
sessed such authority. All that said, there is no objective basis
for concluding that Boyle likely would have proposed to
Morales skipping a subsequent grievance step.
Finally, there is no objective basis for concluding that the
second step of the contractual grievance procedure would have
been even a logical subject for discussion as early as August
24. “Yes, sir,” answered White when asked if the first step
meeting had ended with Boyle saying that he would give Re-
spondent-Union his answer, to the arguments made during that
meeting, within 5 days. Such a statement by Boyle is consis-
tent with the contractual requirement that the supervisor in-
volved in the first-step grievance meeting “shall give his an-
swer in writing to the employee within five (5) calendar days
after such discussion.”
Now, there probably was not much doubt in Boyle’s mind on
August 24 that he would be rejecting Morales’s arguments.
Nonetheless, Boyle’s specification of 5 days for giving his
answer is an indication that he, too, was keeping his powder
dry: did not intend to divulge as of August 24 what position he
would take when he answered Respondent-Union’s first-step
arguments on behalf of White. That being the situation as of
August 24, it hardly makes a lick of sense for Boyle to have
proposed that a subsequent grievance step be skipped. Such a
suggestion would effectively divulge the very decision which
Boyle was saying would be revealed within 5 days. In the
overall context of the situation, the proposal which White at-
tributed to Boyle simply makes no objective sense. White’s
testimony about it seems to have been nothing more than his
effort to shore up his testimony about the supposed Illinois Bar
and Grill offer by Boyle.
It had been apparently at some point after Boyle issued his
August 10 termination notice for Florian, but before White’s
termination notice issued on August 18 or, perhaps, before the
August 24 first-step grievance meeting concerning the latter
termination, that a peculiar little exchange occurred between
Damron and Maintenance Manager Allan Esrig. Esrig testified
that “[i]t might have been a couple weeks” after Florian’s dis-
charge, he had said to Damron, “what do you think about this
Chester situation,” to which Damron responded, “There’s only
one left.” That was all that had been said, testified Esrig.
Damron denied specifically having told Esrig only one was
left. Of course, as must be apparent from what has been said in
preceding subsections, Damron was not always the most reli-
able of witnesses. But, even accepting that the exchange de-
scribed by Esrig had occurred, it hardly supports a conclusion
of hostility by Damron toward Florian and White, much less
some sort of admission of unwillingness to fairly represent
either one of those employees. The remarks attributed to Dam-
ron are too vague and ambiguous to infer either of those con-
clusions.
In the first place, the remarks attributed to Damron can le-
gitimately be construed as no more than recognition of fact.
Two employees had engaged separately in identical conduct
which violated a work rule prohibition. One had been dis-
charged for doing so. A disciplinary decision was still pending
for the other employee. So, as of one possible time of the Esrig-
Damron exchange there was, indeed, “only one left” for final
disciplinary resolution by Respondent-Employer. Even if the
Esrig-Damron exchange had, in fact, occurred after notification
PRECOAT METALS 1219
by Boyle of White’s termination, there still remained for resolu-
tion whatever position Boyle might take as a result of the first-
step grievance meeting. Of course, Respondent-Employer al-
ready had taken final action against Florian, in the process re-
jecting Robinson’s arguments advanced during the sit-down
meeting. So, even if the Esrig-Damron exchange had occurred
after White’s termination notification, but before the first-step
grievance meeting, there still had been “only one left.”
In the second place, if he had said that, Damron may have
been waiving off further discussion of the subject with Esrig.
After all, the maintenance manager was not involved in the con-
tractual disputes resolution procedure for operations support
employees who worked in the annex. So far as the record
shows, Esrig had no particular reason for becoming involved, by
discussing Florian or White with Damron. And Damron had no
reason—and, perhaps, no business—for discussing Florian’s and
White’s situations with Esrig. By his answer Damron effec-
tively blew off further discussion with Esrig of those subjects.
To be sure, neither of those explanations can be said to have
been the actual meaning of Damron’s asserted four-word re-
sponse to Esrig’s question about Florian. Yet, either one is as
plausible an explanation as is an expression of hostility or of
unwillingness to represent. Accordingly, the exchange de-
scribed by Esrig is simply too ambiguous to accord it any
weight in evaluating the complaint’s allegations concerning
Respondent-Union.
J. Focht Appointed Business Manager
Another event which occurred during the summer involved
Focht. Discussed near the end of subsection D above was re-
moval of his production manager’s duties, though not his title,
during May. Thereafter, Focht testified, he had been left in a
status of “limbo,” not knowing what duties he was supposed to
be performing: “So from May until August, that’s how long I
was in limbo.” That status has independent significance under
the Act. For, as a result of the May memorandum, Focht had
ceased to be a supervisor within the meaning of Section 2(11)
of the Act.
True, according to Drufke’s May 26 memorandum, Focht
continued, at least for a while, after May to hold the title of
“Production Manager.” But, supervisory status under the Act
is not conferred by mere possession nor retention of a job title.
See, e.g., Fleming Cos., 330 NLRB 277 fn. 1 (1999); NLRB v.
Joe B. Foods, Inc., 953 F.2d 287 (7th Cir. 1992). Nor is it con-
ferred by the fact that witnesses and, even, counsel may refer to
a particular individual as a supervisor. See, e.g., Westinghouse
Electric Corp. v. NLRB, 424 F.2d 1151, 1156 (7th Cir. 1970),
cert. denied 400 U.S. 831 (1970); and Gracelands, Inc., 293
NLRB 373 fn. 3 (1989). “The proper consideration is whether
the functions, duties, and authority of an individual, regardless
of title, meet any of the criteria for supervisory status defined in
Section 2(11) of the Act.” (Citations omitted.) Browne of
Houston, 280 NLRB 1222, 1225 (1986). Accord: Carlisle
Engineered Products, 330 NLRB 1359, 1360 (2000).
With respect to that consideration, Focht testified, “No, I
didn’t” by July have any employees under his supervision. To
be sure, as shown in preceding subsections, as well as above in
this one, Focht was hardly a reliable witness, as a general
proposition. However, that answer, and like ones appearing
elsewhere in the record of his testimony, was elicited during
cross-examination. And cross-examining counsel appeared
satisfied—in agreement with—the answers given by Focht in
that regard. In consequence, having been relieved of produc-
tion manager’s responsibilities by the end of May, Focht no
longer possessed any of the supervisory powers enumerated in
Section 2(11) of the Act and, therefore, became a statutory—
though not a unit—employee within the meaning of Section
2(3) of the Act.
As also set forth in subsection D above, in the wake of
OFCCP’s investigation and predetermination notice, Vice
President of Manufacturing Kramer had been holding off on
taking any further action concerning removal of Focht from
Respondent-Employer’s Chicago facility, on advice of Director
of Human Resources John Christopher to await the final find-
ings of OFCCP. Those issued on August 7, 3 days after Florian
had been suspended and 1 day after White had made his drive
on South Kilbourn Street from the annex to the main building
to punch out for the day.
In a covering letter dated August 7, OFCCP’s district direc-
tor gave notice that review had been completed of Respondent-
Employer’s Chicago operations and that a conclusion had been
reached that Respondent-Employer was not in compliance. A
conciliation agreement was enclosed with that letter. Among
the corrective actions specified in that agreement were backpay
for four women who had applied for employment with Respon-
dent-Employer at the Chicago facility. Three of them were
applicants—Maurita Gill, Charlene Johnson, and Sheila
Schmidt—whom Focht had unlawfully refused to consider for
employment there. Almost $50,000 in backpay was sought for
those three women.
Receipt of that letter and conciliation agreement seemingly
left Kramer free to take final action concerning Focht—to offer
him a transfer to another of Respondent-Employer’s facilities
or, should he reject transfer, to fire him. That is the course
which Kramer testified that he had intended to take, but had
been holding off taking until a final determination was made by
OFCCP. Yet, admittedly Kramer did not pursue those alterna-
tive courses in the wake of OFCCP’s August 7 correspondence.
Instead, Focht was allowed to continue working for Respon-
dent-Employer, at the Chicago facility for significant periods,
after August 7.
Kramer testified that, upon seeing OFCCP’s August 7 docu-
mentation, “I was going to go ahead with my plants [sic] for Mr.
Focht,” by “offer[ing] him a chance for a fresh start in employ-
ment at the Jackson [Mississippi] facility.” But, John Christo-
pher had left employment with Respondent-Employer by that
time and, as of August, had not been replaced by anyone as
director of human resources. As a result, Kramer claimed that
he had no one to prepare a last chance agreement, a document
described in subsection M below, that he had wanted to present
to Focht in connection with an offer of transfer to Jackson. On
its face, that is a quite implausible explanation.
Kramer acknowledged that he was “the head of the manufac-
turing segment” of a multimillion dollar operation. Even
though John Christopher had not been replaced, surely Kramer
had, at least, counsel available to prepare the documentation
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1220
which Kramer felt that he needed in order to offer a transfer to
Focht. That is, had he been so intent on immediately removing
Focht following receipt of OFCCP’s final determination, as he
now claims that he had been, surely Kramer could have located
someone to prepare the necessary documentation. In fact,
someone other than John Christopher did prepare Respondent-
Employer’s September 11 reply to the charge in Case 13–CA–
37256, before John Christopher decided to return to employ-
ment with Respondent-Employer on October 12. Seemingly,
the same source could have prepared a last chance agreement to
be issued to Focht. That is not the only consideration which
objectively raises doubt about Kramer’s testimony concerning a
purported ongoing intention during August to transfer or dis-
charge Focht.
Focht testified that his situation had been “a little aggravat-
ing,” given that “you’re coming to work and you really don’t
know what you’re supposed to be doing,” and “where you’re at,
what are you supposed to be doing.” “And I went on like two
months trying to find out, hey, what is my title? What am I
supposed to be doing?” he testified, but “I was never told.”
When he asked Boyle the reason for his (Focht’s) loss of pro-
duction manager responsibilities, testified Focht, Boyle “just
answered me he thought it was something to do with this EEOC
suit with these three women.”
Focht testified that he asked Drufke about the situation on
three occasions during the summer, but he received no explana-
tion. However, testified Focht, Drufke ultimately “called me
in,” saying “I finally got something drafted up for you, as far as
what you’re going to be doing and what your title is,” and “that
he would be making me business manager.” It is undisputed
that Respondent-Employer never had a title nor a position of
business manager for anyone. Focht testified that he was
shown by Drufke a “Business Manager” job description for the
“Northern Region.” Not only did Drufke show that job descrip-
tion to Focht, but Focht testified that Drufke “also handed a
copy to Roger Kramer when he came in.”
The business manager job description is undated. Focht tes-
tified that he did not recall the exact date on which it had first
been shown by Drufke to him and Kramer. However, in his
prehearing affidavit Focht placed that event as having occurred
around August 14, and eventually Focht testified with some
certainty that it had occurred on that date. From Focht’s overall
testimony concerning his transfer to the position of business
manager, it seems clear that it had occurred at some point dur-
ing mid-August. By then, however, Respondent-Employer
should have received OFCCP’s final determination of August
7. Consequently, left unexplained is why, had he truly been
intent on offering Focht a transfer, or discharging Focht,
Kramer had allowed Drufke to appoint Focht as business man-
ager. Kramer never explained that, though he never disputed
Focht’s above-quoted testimony that Drufke had “handed a
copy” of the business manager’s job description to Kramer.
As pointed out, Focht was not generally a reliable witness.
Yet, Kramer appeared as Respondent-Employer’s witness, after
Focht had testified, and Drufke was cross-examined by Re-
spondent-Employer, when called as a rebuttal witness. Accord-
ingly, both men were available to Respondent-Employer to
testify about presentation of the business manager’s job de-
scription to Focht and, further, to dispute any untrue portion of
Focht’s description of that incident. Neither one contested any
aspect of Focht’s account.
Significantly, all of Focht’s above-described testimony about
his appointment as business manager was elicited during cross-
examination. As with Focht’s testimony about ceasing earlier
to exercise supervisory powers, cross-examining counsel ap-
peared satisfied with the answers which Focht provided about
his appointment as business manager. Given the totality of the
situation, there simply is no basis nor reason not to credit the
testimony that, after OFCCP’s August 7 letter, Respondent-
Employer had created a new position for Focht, had appointed
him to that position, and Kramer was fully aware that those
events had occurred. Kramer never explained why he had al-
lowed Drufke to go through that process, had Kramer still actu-
ally intended to offer Focht a transfer to the Jackson facility and
to fire Focht, if the latter rejected that transfer-offer.
What Respondent-Employer seems to have been intending to
accomplish, by eliciting the above-described testimony from
Focht, was to provide a basis for concluding that, by virtue of
his appointment as business manager, Focht had been removed
from the Act’s protection as a statutory employee when Focht
began aiding Florian in connection with the latter’s suspension
and discharge. If so, that purpose was not accomplished. As to
any supervisory contention, during cross-examination Focht
denied that he had been a supervisor while business manager.
He did testify that, while business manager, he had “worked
together” with another individual. “[E]verything I asked, he
would do,” testified Focht. Counsel seemed satisfied with those
answers. But, those answers do not establish that Focht had
possessed authority to exercise independent judgment in direct-
ing work by that other individual. “Asking” hardly rises to a
level of “directing.” Nor is there any evidence that, while busi-
ness manager, Focht had possessed authority to exercise inde-
pendent judgment in connection with any of the other powers
enumerated in Section 2(11) of the Act. Consequently, there has
been no showing that Focht had again become a statutory super-
visor as a result of his appointment as business manager.
Nor is the evidence sufficient to allow a conclusion that the
business manager’s position is one which can be categorized as
managerial under the Act: as a position whose occupant “repre-
sents management interests by taking or recommending discre-
tionary actions that effectively control or implement employer
policy.” (Footnote omitted.) NLRB v. Yeshiva University, 444
U.S. 672, 682–683 (1980). The job description for Respon-
dent-Employer’s business manager position describes the occu-
pant’s duties as,

Lead person in cost containment efforts. Participates in efforts
at reducing inventories, applied cost of purchased supplies,
implementing Midas group recommendations and improving
Production goals such as yield, material cost %, productivity
gains and Quality. Works with Engineering in the design and
installation of Capital equipment including start-up.

According to the job description, the business manager reports
to the regional manager, though he/she must also be able to
“work well and cooperate with other individuals such as the
Regional Controller, Plant Manager, Corporate Purchasing,
PRECOAT METALS 1221
Engineering, or other individuals depending on the current
project being addressed.”
Only Focht gave testimony about what duties he had actually
performed during his relatively brief tenure as business man-
ager. None of that testimony, most elicited during cross-
examination, was disputed by any of Respondent-Employer’s
witnesses. Nor was any of it disputed during cross-examination
of rebuttal witness Drufke.
Focht testified that, after having become business manager,
“I was working just strictly for Ray Drufke and he had me
working on rejects.” “Yes,” Focht answered, when asked if he
had been told by Drufke that the business manager would re-
port only to Drufke, not to Boyle. Focht testified that he
worked at the Portage facility “a couple days a week,” where he
was “pulling a lot of rejects out of the Portage plant,” and, then,
“was bringing them to the Chicago plant to put them on a re-
warning [sic] station to see how much material we could sal-
vage and, you know, make into good material.” According to
Focht, he both pulled the rejects at Portage and performed the
rework at the Chicago facility. Though not supervising anyone
else while he worked as business manager, Focht agreed that he
had regarded himself, while occupying that position, as a com-
pany representative. Of course, like agreement could probably
be obtained from most employees, particularly those who come
into contact with customers. Such self-characterization hardly
can serve as a basis for concluding that an employee is truly a
managerial employee under the Act.
There is no evidence that, while he had been business man-
ager, Focht had taken or recommended any “discretionary ac-
tions that effectively control[led] or implement[ed] employer
policy.” Id. Nor is there evidence that he had “determine[d] . . .
the product to be produced, the terms upon which it [would] be
offered, and the customers who [would] be served.” Id. at 686.
It cannot be said, on the basis of this record, that managerial
status is demonstrated by responsibility for “cost containment
efforts,” achieved by performing such functions as reducing
inventories and cost of supplies, implementing recommenda-
tions made by others, and improving yield, percentage of mate-
rial costs, and productivity and quality for the overall objective
of improving production goals. No evidence has been adduced
which would show that any of those functions had involved
anything more than a “highly skilled” employee’s provision of
“technical advice and services,” Bakersfield Californian, 316
NLRB 1211, 1215 (1995), to accomplish goals set by others in
Respondent-Employer’s chain of supervision.
There is no evidence that, aside from technical expertise ex-
ercised within an overall framework established elsewhere,
Focht had been able to exercise any discretion in formulating,
controlling or implementing company policy. There is no evi-
dence that Respondent-Employer had contemplated that its
business manager would be able to commit company credit or
otherwise affect its finances, nor that Focht had done so while
serving as business manager. There is no evidence that Re-
spondent-Employer contemplated that its business manager
would do more that “[w]ork [ ] with Engineering in the design
and installation of Capital equipment,” without exercising any
more than technical skills. Indeed, the business manager’s job
description characterizes its occupant as no more than a “Lead
person.” There is no evidence whatsoever that any divided
loyalties would arise from concluding that Respondent-
Employer’s business manager, in general, and Focht, in particu-
lar, had been a statutory employee, no different from Respon-
dent-Employer’s other statutory employees, unit and nonunit.
Therefore, the totality of the evidence does not support a con-
clusion that the business manger, nor Focht, had been a mana-
gerial employee under the Act.
The very fact that Focht had been appointed business man-
ager during mid-August is one which creates an inherent con-
flict for Kramer’s assertion that he had fully intended by then to
transfer Focht to Respondent-Employer’s Jackson facility, or to
fire Focht if he refused to accept such a transfer, but had been
unable to accomplish that because of the absence of a director
of human resources. To be sure, were the latter true, something
had to be done with Focht during that post-August 7 period.
Yet, Focht had been serving as “Production Manager” since
May. No reason is revealed by the record as to why he could
not have been allowed to continue serving in that position until
Respondent-Employer selected a director of human resources to
replace John Christopher.
Instead, Respondent-Employer went to the trouble of creat-
ing an entirely new job position to which Focht was then ap-
pointed. It was a position that contemplated duties not in Jack-
son, Mississippi, but rather contemplated continued duties in
the Chicago facility, as well as in the one at Portage. The very
facts that it created that position, prepared a job description for
its occupant’s duties, and selected Focht to be that occupant,
collectively, tend to show that, following OFCCP’s August 7
documentation, Respondent-Employer had made a different
final determination concerning Focht than the one which
Kramer tried to portray when testifying: that Respondent-
Employer had decided to retain Focht in the Northern Region,
but assign him the duties of a newly-created position—duties
which would allow the Chicago facility to continue benefiting
from Focht’s technical expertise, while at the same time keep-
ing him away from exercising any supervisory powers over
employees, thereby avoiding further trouble such as that created
by him when selecting applicants for hire.
As it turned out, Focht did create problems for Boyle and his
Chicago subordinates during August, as Focht performed his
business manager duties. Those problems led to preparation
and submission to Drufke of a set of memoranda on September
9, as mentioned further in subsection M below. However, so
far as the evidence discloses, neither those memoranda, nor
mention of them, ever reached Kramer. By his own account, it
had been Kramer who made the decision to offer the last
chance agreement to Focht, described in subsection M below.
At no point did Kramer claim that he had seen the September 9
memoranda, nor did he claim that he had been aware of them.
In fact, Kramer never even claimed that he had conferred with
Drufke, the ultimate recipient of all those memoranda, when
making the decision to offer a Jackson transfer to Focht, by
means of the last chance agreement, and to fire Focht if he de-
clined to accept that transfer. Therefore, the September 9
memoranda turned out to be collateral matters, not material to
Kramer’s discharge decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1222
K. Rolfe’s Summer Situation
As set forth near the beginning of subsection D above, opera-
tions support employee Kenneth Rolfe, after completing his
probationary period, had been one of the employees laid off
during March. Though not unlawfully motivated, the layoff
had angered Rolfe and led him to warn that he intended to “sue
them for” it. As pointed out in that same subsection, Rolfe
sought workers compensation for carpal tunnel syndrome and,
given his condition, was relegated to light-duty status during
May by his doctor. At that time Rolfe had been told by then-
Acting Production Manager Mahoney that there was no light-
duty work available at Respondent-Employer’s Chicago facil-
ity. There is no evidence that any became available thereafter
at Chicago, nor at any of Respondent-Employer’s other facili-
ties.
Rolfe testified that, beginning during June, he would bring
doctors’ bills to Personnel Benefits Coordinator or Personnel
Administrator Abbott, for payment by Respondent-Employer.
So far as the record shows, Respondent-Employer did pay those
bills. On those occasions, testified Rolfe, he would ask Abbott
if work was going to pick up and if Respondent-Employer
would be recalling people to work, but Abbott said only that
“pretty soon they would be calling people back.” Then, by
notice dated August 7, Boyle announced that “Three employees
on lay-off are being called back and will start, temporarily on
days, Monday, August 10th.” Boyle testified that “I was plan-
ning on starting a fourth crew.” Apparently the three August
10 recalls were to be the first phase in that overall plan. Thus
the “temporarily on days” statement in his August 7 notice.
Three operations support employees reported for work on
August 10: “Bud” McFadden, “Stan” Smalara and Stephen or
Steven Thomas Wright. All had been hired before Rolfe began
working for Respondent-Employer. But, as pointed out in sub-
section D above, article IX of the 1995–1999 collective-
bargaining contract allowed Respondent-Employer to extend
contractually-specified 60-day probationary periods, upon
proper notice of intention to do so. When that happens, an
employee upon completing his/her extended probationary pe-
riod, receives the original employment date as the seniority
date. Thus, an employee’s seniority is not adversely affected
by extension of probation, once the probationary period is
completed. As also mentioned in subsection D above, through
apparent inadvertence, Respondent-Employer neglected to give
proper notice of extended probationary period for Rolfe. As a
result, he completed his probationary period before being laid
off during March.
In contrast, McFadden, Smalara and Wright had each re-
ceived timely notice of extension of probation. By working
overtime, Smalara succeeded in completing his probationary
period by the time that he had been laid off during March.
However, as of that date both McFadden and Wright were still
probationary employees, though Wright needed only 1 day to
complete his probation when he was laid off. Thus, in the ordi-
nary course of affairs, neither should have been recalled from
layoff until recall opportunity had been offered to laid-off em-
ployees who had completed their probationary periods by the
time of their layoffs. But, no offer of recall had been extended
to Rolfe during early August.
During direct examination Rolfe testified that “Mr. Florian
called me,” and said that he (Florian) had learned from Wright
that the latter and two other employees were being recalled and
“were reporting to work the next day.” During cross-
examination, Rolfe added that he also had been given a like
message by Phillips. Neither Florian nor Phillips corroborated
that testimony by Rolfe. Yet, clearly Rolfe did become aware
of the August 10 recalls.
Rolfe testified that, during August, he had taken some doc-
tors’ bills to Abbott. In the course of their ensuing conversa-
tion, he further testified, he had asked her “what was going on
and I’d heard they called three people back. And when they
found out I was number two, they sent two other people back
home.” As described below, two of the August 10 recalls had
been sent home. But, not because of any reason having to do
with Rolfe and, certainly, not because “they found out [Rolfe]
was number two.” Still, according to Rolfe, Abbott never chal-
lenged his purported assertion, but replied, “Sometimes you
don’t need everybody and we’re only going to take one of
them.” After “talk[ing] a little bit” more, testified Rolfe, “I
said, come on, Mary. What’s going on?” and Abbott “said
well, if you get me a note, a letter from your doctor stating that
your hands were okay, I might be able to do something for
you,” and, “She also asked me if I dropped my lawsuit.” In
addition to that asserted conversation, Rolfe added one more
event.
He testified that “on a Tuesday . . . I believe this was in Au-
gust,” he had seen a help-wanted advertisement in a Sunday
South Town Newspaper:

OPERATION
SUPPORT
Coil Coater. Midway Airport area.
Opening for an individual to work as an
entry level material handler. One year
experience helpful on overhead cranes
and forklift trucks. Good salary plus shift
premium and fringe benefits. Call be-
tween 10–2 ONLY 219–763–1540. EOE
M/F/D/V

Rolfe testified that he called that telephone number and spoke
with “Sharon Test up in Indiana. She said she and Mary Abbott
were going to be interviewing people on Thursday. They were
looking for qualified lift truck drivers and crane operators.”
According to Rolfe, Test said that the interviews were going to
be conducted “at Precoat Metals at the plan [sic] at 48th and
Kilbourn on Thursday.” “She asked me for my name and
phone number,” Rolfe testified, but “I gave her a phoney [sic]
name and phoney [sic] phone number.”
Before the first shift began on August 10 the three recalled
employees—McFadden, Smalara and Wright—showed up at
Respondent-Employer’s Chicago facility. Before any one of
them punched in, Wright testified, Damron approached and
McFadden “asked Rich if I didn’t finish my probationary pe-
riod, do I have to start all over again? And Rich stopped in his
tracks and was like, of, what? You didn’t finish your proba-
tionary period?” Damron “said, you guys hold it here and he
PRECOAT METALS 1223
went in the office,” testified Wright. Damron testified that,
when he had seen the three employees “by the time clock” on
August 10, he had “walked up and asked them what they were
doing there.” After ascertaining that they had been “called
back,” testified Damron, “I told them don’t do anything, just to
stay right here and don’t do nothing and I went in to see Mary
Abbott.”
According to Damron, he went into the office where he
asked Abbott whether the three employees had been recalled.
“And she said, yeah,” testified Damron, “And I said, well, was
[sic] they called by seniority?” Damron testified that Abbott
replied that she was unable to answer that question because,
“[t]here was a new lady that . . . done this right here,” or, “she
didn’t do the call it was the new lady.” “I said, well you got to
start with the most senior person and work down. And I don’t
want to see anything else except you go by the seniority roster,”
Damron further testified. The upshot of what had been said
was that McFadden and Wright, the still-probationary employ-
ees, were sent home, without having ever punched or clocked
in, while Smalara, who had completed his probationary period,
was allowed to punch in and was put to work. As pointed out
above, Smalara’s hire date preceded that of Rolfe. So, there
would have been no basis upon which Respondent-Union could
have challenged his recall, compared to the failure to recall
Rolfe. Moreover, apparently Boyle abandoned his “fourth
crew” plan. For, Respondent-Employer thereafter never re-
called any other employee. Furthermore, there is no evidence
that Respondent-Employer hired any applicants.
It is quite clear that Rolfe is contending that he should have
been recalled on August 10 and, moreover, that Respondent-
Employer had been acting nefariously in not recalling him on
that date. But, his position is not a sustainable one. Boyle
testified that August recalls had been aimed at “starting a fourth
crew.” There is no evidence that the work available had been
other than full-duty. That is, neither General Counsel nor
Charging Parties have presented any evidence that any of the
work available during August at Respondent-Employer’s Chi-
cago plant had been light-duty. Yet, that was the only work
that Rolfe had been qualified at that time to perform, in light of
his doctor’s restriction. Consequently, Rolfe was not qualified
to perform the work which the three laid-off employees had
been recalled to perform on and after August 10.
A like conclusion applies to the above-quoted Sunday news-
paper advertisement. Nothing in it provides for light-duty
work. And certain other points about it should not be over-
looked. Notice, first, that at no place in the advertisement does
Respondent-Employer’s name appear. Secondly, examination
of the advertisement page introduced during the hearing (GC
Exh. 12) discloses that it is an irregularly cut-out portion of one
newspaper page. So carefully had it been cut that it omits the
date of the newspaper of which that particular page was a part.
Indeed, its careful cutting gives rise to some suspicion that a
little fast-and-loose activity was occurring in connection with
its introduction. After all, newspapers retain copies of their
past issues and no one contended that it had been impossible to
obtain a full page on which that advertisement appears. In any
event, it cannot be said, from the face of the exhibit, that the
advertisement had been placed on behalf of Respondent-
Employer nor that it had appeared in an August newspaper.
Rolfe’s testimony is the lone basis for connecting that adver-
tisement to Respondent-Employer during that month.
In addition to testifying that he had seen the advertisement
on either a Tuesday or Sunday in August, Rolfe claimed that he
had telephoned the number listed and had spoken with “Sharon
Test.” There is no evidence that Respondent-Employer em-
ployed someone named Sharon Test during August, nor during
any other period. Nor, for that matter, is there evidence, other
than Rolfe’s testimony, that the telephone number recited in the
advertisement was one assigned to Respondent-Employer.
Finally, Rolfe was supposedly told that interviews would be
conducted at Respondent-Employer’s Chicago plant on the
following Thursday. Yet, for no reason explained by him, there
is no evidence that Rolfe went there on that Thursday, if for no
other reason, to ascertain that, in fact, interviews were being
conducted. In fact, there is no evidence whatsoever that inter-
views had been conducted at Respondent-Employer’s Chicago
plant on Thursday, August 13, nor on any other day during
August.
That leaves the above-quoted words attributed to Abbott by
Rolfe, on the August day when he testified that he had spoken
to her. His account of her “lawsuit” remark is inexplicable on
its face. From the record the best that can be said is that it
might have referred to his workers compensation claim arising
from his carpal tunnel syndrome which seemingly had led
Rolfe’s doctor to impose the light-duty work-restriction de-
scribed in subsection D above. Such a conclusion gains force
from Rolfe’s testimony that Abbott had also said that day that
“if you get me a note, a letter from your doctor stating that your
hands were okay, I might be able to do something for you.”
Well, of course. Respondent-Employer had attempted to recall
three laid-off employees for what has not been shown to have
been other than full-duty work. Rolfe was restricted to light
duty by his doctor. Obviously, if his doctor lifted that restric-
tion, Respondent-Employer would have been able to recall him
for full-duty assignment.
To be sure, Abbott never appeared as a witness for Respon-
dent-Employer and, as a consequence, never denied having
made the above-quoted purported August remarks to Rolfe nor,
if she had done so, never explained what they had meant. Yet,
there is no allegation that Respondent-Employer had violated
the Act by having failed to recall Rolfe on and after August 10.
The only allegation pertaining to failure to recall Rolfe is one
made against Respondent-Union, assertedly for having “refused
to file a grievance concerning recall rights,” based assertedly
upon “Rolfe’s affiliation with discharged employee Florian.”
It cannot be said that the General Counsel had lacked oppor-
tunity to include an allegation against Respondent-Employer on
Rolfe’s behalf in connection with the failure to recall Rolfe on
and after August 10. Included among the formal documents is
an unfair labor practice charge in Case 13–CA–37292, filed by
Rolfe against Respondent-Employer—and alleging specifically
“fail[ure] and refus[al] to return [Rolfe] from laid off status
because of his union and/or protected concerted activities”—on
the same day as he filed his charge in Case 13–CB–15860
against Respondent-Union. But the General Counsel has not
proceeded to complaint based upon Rolfe’s charge against Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1224
spondent-Employer. That being the fact, it is impossible to
conclude that Abbott’s supposed statements to Rolfe, the news-
paper advertisement of whatever date and source, and the fail-
ure of Respondent-Employer to recall a light-duty status em-
ployee for full-duty work, collectively, somehow show im-
proper motivation by Respondent-Employer. Moreover, the
absence of an allegation against it in connection with failure to
recall Rolfe on and after August 10 supplies a basis for Re-
spondent-Employer’s failure to call her to deny or explain any
statements which she might have made to Rolfe during August.
After all, there is no reason to call a witness to create an issue
when none is alleged to exist.
Turning to the allegation against Respondent-Union, several
theories are advanced to support an alleged failure to represent
Rolfe on and after August 10. Primarily, as quoted above, the
argument is that Respondent-Union had been retaliating against
Rolfe because of its perception of his supposed “affiliation”
with Florian. However, no credible evidence of such a percep-
tion exists as of, even, August 31. As described in subsection
D above, Rolfe testified that he had mentioned to Escobedo in
November 1997 having consulted with Florian. Yet, even if
true, such a statement in that context hardly rises to the level of
“affiliation with . . . Florian.” Thereafter, viewing the matter
from the perspective of Respondent-Union, there was no indi-
cation that Rolfe had been doing anything that could be re-
garded as “affiliat[ing] with . . . Florian.” For example, Florian
supposedly had notified Rolfe about the August 10 recalls.
But, there is no evidence that Respondent-Union had ever be-
come aware of such notification. Still, Rolfe made an effort to
supply evidence of such perception by the end of August, as
discussed below.
At this point, the simple fact is that there is no credible evi-
dence that, as of August 10 nor for the next couple of weeks,
Respondent-Union would have known or suspected that Rolfe
had any connection with Florian. Beyond that, if anything,
Damron’s intervention with Abbott on August 10 created an
opening for Rolfe to be recalled, had Rolfe been then qualified
for full-duty assignments. Damron may not have understood
the specific recall situation that day, and he acknowledged that
he had given no thought to Rolfe on August 10, but his recall-
seniority conversation with Abbott led Respondent-Employer
to send home the two probationary employees, thereby clearing
the way for recall of other laid-off employees, ones who, such
as Rolfe, had completed their probationary periods.
Of course, after McFadden and Wright had been sent home
on August 10, Rolfe was not recalled to work. Yet, the simple
fact is that no one was recalled to replace those two probation-
ary employees. Moreover, the unreliable evidence of a sup-
posed newspaper advertisement for applicants to the contrary
notwithstanding, there is no evidence that Respondent-
Employer hired anyone after August 10 to fill the positions to
which McFadden and Wright had been recalled.
During cross-examination some effort was made to fault
Damron for Respondent-Employer’s decision not to recall any-
one, specifically Rolfe, after McFadden and Wright had been
turned away. But it would be ridiculous to fault Damron for
such a decision by Respondent-Employer. Respondent-Union
had no contractual or statutory authority to force Respondent-
Employer to recall laid-off employees. Even if it had possessed
such authority, there is no allegation of some sort of conspiracy
between Respondents to deprive Rolfe of recall-employment.
Certainly, Respondent-Union had no contractual or statutory
authority to compel Respondent-Employer to recall a light-duty
status laid-off employee for a full-duty opening. Still, Rolfe
developed another theory.
To understand that theory, note must be taken of the 1995–
1999 collective-bargaining contract’s continuous service provi-
sion as it applies to recall of laid-off employees. Article IX,
section 9, subsection (f) provides that continuous service is
broken after “six months” of layoff for employees, such as
Rolfe, “with less than ten (10) years length of service at time of
layoff.”
McFadden and Wright had been sent home on August 10
without having ever punched or clocked in that day. Based
upon that fact, Respondent-Union’s and Steelworkers’ officers
concluded that there was no basis for arguing that either of
those probationary employees had actually been recalled,
within the meaning of the collective-bargaining contract’s pro-
visions. Rolfe saw the situation differently. But, rather than
approach Respondent-Union initially with his opinion, he fo-
cused on Wright.
Wright gave the following testimony, none of which was
ever contested. After August 10 and during September, Rolfe
had “a couple” telephone conversations with Wright and, from
the number shown on Wright’s “caller ID,” made additional
efforts to telephone Wright. During the conversations, Rolfe
attempted to persuade Wright to file a grievance for having
been recalled on August 10 to Respondent-Employer’s Chicago
facility, but not having been allowed to punch in and go to
work. By Wright’s doing so, two objectives would be accom-
plished, in Rolfe’s view. First, it would present an opportunity
for Wright to possibly obtain a day’s work, for August 10, and,
since he was only 1 day short of completing his probationary
period, Wright would no longer be a probationary employee.
More importantly, if regarded as having been constructively
employed on August 10, Wright’s continuous service period
would be restarted as of that date.
Second, in Rolfe’s opinion, a successful grievance by Wright
would provide a basis for Rolfe to claim that his own contrac-
tual recall right should be restarted, because he, rather than
probationary employee Wright, should have been recalled on
August 10. That is, Wright testified, “he told me well, if you
could do that and you do that then that will give me six more
months,” and, “I can get mine, too, so we’ll both have” re-
started continuous service periods.
In addition, Rolfe suggested that Wright might want to “go
see a lawyer,” because “the more people suing the company,
the better it looked.” In that regard, it is uncontested, Rolfe told
Wright, “The more people suing, the better it would look. He
told me Chester is suing them, I’ve got a law case, John’s suing
them, he told me. And if you go in there, too, you might as
well see if you’ve got a case too,” but “if you can’t afford an
attorney, you can always go to the Labor Board.” Wright testi-
fied that he felt that Respondent-Employer had done nothing
wrong and, accordingly, that there was no basis for a grievance
against it. Moreover, he testified, “I thought [Rolfe] was using
PRECOAT METALS 1225
me as a pawn on something that wasn’t right to do,” and “I felt
like I was getting badgered, pulled into something, and I just
didn’t feel comfortable with it.”
Now, three points need to be made about Rolfe’s idea that he
could benefit by a successful grievance filed by Wright. First,
as already pointed out, Respondent-Union took the position that
it could not be successfully contended that McFadden and
Wright had been truly recalled, since neither one had punched
in on August 10. Certainly, there is no provision in the 1995–
1999 contract that would support a position that both had truly
been recalled, given that neither one had punched or clocked in
that day. One might argue about the absolute correctness of
such a position. Yet, it is hardly an illogical one and can hardly
support an inference that Respondent-Union had been attempt-
ing to somehow disadvantage Rolfe by having failed to file
such grievances on behalf of McFadden and Wright. That be-
comes an even less plausible inference in view of a second
point.
That point is that, under the 1995–1999 contract, Respon-
dent-Union had no contractual basis for filing any type of
grievance on behalf of probationary employees McFadden and
Wright—the predicate step under Rolfe’s theory that if Wright
prevailed on a grievance, then Rolfe could prevail on his own
grievance concerning recall of a probationary employee, rather
than a laid-off employee, such as him, who had completed the
probationary period. Article IX, section 2 of that contract
states, in pertinent part: “During the probationary period, the
Company shall not be restricted by this Agreement in dealing
with the employee,” and, further, “Probationary employees are
assigned or scheduled, laid off, disciplined, or dismissed, dur-
ing such probationary period at the Company’s sole discretion.
The Company’s actions with respect to such probationary em-
ployees shall not be subject to the grievance or arbitration pro-
visions of this Agreement.” In short, Respondent-Union had no
contractual right to file grievances on behalf of either McFad-
den or Wright, because those two probationary employees had
been told to report on August 10 but were sent home before
either could punch or clock in.
Of course, the third point is that, even had Respondent-
Union somehow overcome the above-quoted contractual lan-
guage and somehow prevailed in disputes resolution concerning
Wright, Rolfe would still not have been able to prevail in a
grievance against Respondent-Employer, for not having been
recalled before Wright. That is so because the jobs available
that day have not been shown to have been other than full-duty
ones. Rolfe was restricted as of August 10 to light-duty as-
signments. Thus, he was not qualified to perform the work then
available. Accordingly, Respondent-Union would hardly have
been in a position to argue that Rolfe should have been re-
called, even had it been concluded that Wright and McFadden
had been recalled within the meaning of the contract and that
such recalls improperly bypassed laid-off employees who had
completed their probationary periods.
In sum, there was no basis upon which Respondent-Union
could have prevailed in disputes resolution concerning Respon-
dent-Employer’s failure to recall Rolfe on August 10. Given
that penultimate conclusion, it cannot be concluded that Re-
spondent-Union somehow failed to observe its statutory duty to
fairly represent Rolfe on and after August 10 by not filing a
grievance concerning Respondent-Employer’s failure to recall
him on that date. That ultimate conclusion leads back to later
August events under the theory that Respondent-Union had
failed to fairly represent Rolfe after August 10 because of his
affiliation with Florian. At the outset, of course, it must be kept
in focus that there really had been no basis for filing any griev-
ance on behalf of Rolfe, given that he had been restricted to
performing a type of work which was not then available at Re-
spondent-Employer.
Whatever the actual situation had been on August 10, it
seems clear that as the month of August progressed Rolfe and
Florian became aligned. That is shown, first, by Focht’s testi-
mony that when he went to the Board’s Regional Office to give
an affidavit in support of Florian’s charge, he had gone there in
the company of Florian and Rolfe. It also is shown by Wright’s
uncontroverted account of a conversation with Florian after
Wright had refrained from returning Rolfe’s telephone calls.
“Kenny [Rolfe] is a big guy,” testified Wright. So, whenever
he saw that it was Rolfe’s telephone “number on my caller ID,”
Wright avoided any confrontation, over his own decision not to
file the grievance which Rolfe wanted him to file, by simply
not answering the phone and not returning Rolfe’s calls. As
time passed, however, Wright encountered Florian who said,
“Kenny wants to talk to you about getting together, about last
call [sic] rights and calling the union and file [sic] a grievance,”
and, Florian added, “‘Kenny wants to rip your head off’ be-
cause [Wright] didn’t return his phone call one time I think it
was,” testified Wright. When Wright asked Florian if he had
given Wright’s home phone number to Rolfe, Florian “told me
yeah, he did.”
Still, there is no evidence that any of the foregoing incidents
had ever been related to any officer of Respondent-Union prior
to September 1. Nor is there any evidence which would supply
a legitimate basis for inferring that Respondent-Union likely
knew that Florian and Rolfe had begun working together after
August 10. Neither Rolfe nor Wright testified that he had re-
vealed to any officer of Respondent-Union that the former was
attempting to persuade the latter to file a grievance concerning
the aborted August 10 recall. Neither of them, nor Florian,
testified that he had informed any officer of Respondent-Union
about Florian giving Rolfe the home telephone number for
Wright. Nor did either Wright or Florian testify that he had
told any officer of Respondent-Union about Florian’s effort to
persuade Wright to talk with Rolfe. Finally, so far as the evi-
dence shows, neither Florian, Rolfe nor Focht said anything to
any officer of Respondent-Union about their trip to the Board’s
Regional Office on August 31. Nothing in the record supplies
any basis for inferring that Respondent-Union’s officers would
somehow have suspected that any of those events had occurred.
Against that background of no evidence of either actual or
suspected knowledge that Rolfe had begun working with
Florian, nevertheless, Rolfe made an effort to supply evidence
that Damron had somehow learned by the end of August that
Rolfe and Florian were working together. He did so by giving
testimony about a sequence of events which purportedly led to
a conversation during which Damron supposedly alluded to the
then-developing alignment between Florian and Rolfe—an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1226
allusion which is alleged to have violated Section 8(b)(1)(A) of
the Act.
It is undisputed that, during August, Rolfe approached Rob-
inson about Respondent-Employer’s failure to have recalled
Rolfe on August 10. During direct examination Rolfe testified
that he had asked Robinson, “What was going on. They called
the three people back. They state that they only need two of
them. They had made provisions to bring these people from
nights to days. And now because they find out that I’m number
two, they’re not going to call these people back.” If Rolfe truly
had made those remarks to Robinson, it should not escape no-
tice that two of those remarks were simply false. Respondent-
Employer did not “state that they only need two of them,” but
instead only Smalara was allowed to punch in and go to work
on August 10. Secondly, McFadden and White were not sent
home “because they find out that [Rolfe was] number two,” but
rather because Damron challenged the contractual priority of
recalling two probationary employees.
According to Rolfe, Robinson said that “it apparently looks
like they’re going to let your time run out and they’re going to
let your six months run out and not call you back.” “And I said
isn’t there anything we can do?” testified Rolfe, but Robinson
“said no. He said there’s nothing I can do.” “Yes,” answered
Rolfe, when asked if he had asked Robinson specifically about
filing a grievance. “He said there was nothing he could do,”
claimed Rolfe. Asked, still during direct examination, whether
he had told Robinson what Abbott had purportedly said earlier,
Rolfe testified, “I said I need an operation on both hands and
she’s trying to bargain my job for my hands,” but, according to
Rolfe, Robinson responded only, “your only choice is to go
with your lawsuit.”
Unable to achieve satisfaction from Robinson, Rolfe testified
that, “one or two days later,” he had telephoned Damron. Ac-
cording to Rolfe, Damron said, “well, the company was within
their rights to call back whoever they wanted. I said, you
know, this is not right. He said, too bad you made friends with
the wrong people.” As an objective matter, such a purported
remark by Damron should have ended all further conversation
from Rolfe’s standpoint. Seemingly, it showed that Damron
had no intention of trying to help Rolfe because of Rolfe’s
“friends.” That said, seemingly there was nothing more to be
said between the two men. Yet, claimed Rolfe during direct
examination, it did not. “We kind of chit-chatted just a little
more. He said how about I set up a meeting between me
[Rolfe] and Mr. Boyle. I thought about it, and I didn’t want
any part of it. I said, no thank you. And that was the end of
our conversation.” Apparently, Rolfe never appreciated the
inherent inconsistency between a supposed statement that Rolfe
had not been recalled because he “made friends with the wrong
people,” and an offer to try to help Rolfe through a meeting
with the plant manager.
Rolfe was asked during direct examination whether anything
had been said, during the “chit-chat” with Damron, about light-
duty work. At that point, Rolfe acknowledged the following
exchange which he had earlier omitted from his testimony
about his telephone conversation with Damron:
He said are you able to come back to work and work a full
job? I said, well, I was waiting for my operation for my
hands, but the doctor did say I was fit to go back and work
light duty. He said we have no such position here at work.
And I said, well, that’s kind of a lie. I know people that have
worked light duty there. He said who are your company
snitches.
Damron denied flatly that he had ever asked Rolfe who were
his company snitches. Indeed, such a remark simply makes no
sense.
To be sure, it is undisputed, even admitted, that in the past
Respondent-Employer had made light-duty work available at its
Chicago facility. So, to that extent, Rolfe’s purported remarks
to Damron—“people that have worked light duty there”—
would have been accurate. But, Rolfe had been told during the
late spring by then-Acting Production Manager Mahoney that
no light-duty work then was available at the Chicago facility.
There is no evidence contradicting that statement by Mahoney.
Moreover, there is no evidence whatsoever that any light-duty
work had been performed by anyone at Respondent-Employer’s
Chicago facility during the summer. So, there was simply
nothing for any supposed “company snitches” to have reported
to Rolfe and, beyond that, no reason for Damron to have posed
such a supposed question to Rolfe. All else aside, objective
evidence leaves Damron’s denial more reliable than Rolfe’s
above-quoted testimony about “company snitches.”
In addition, Damron denied specifically having said that it
was too bad that Rolfe had made friends with the wrong people.
Again, that denial is more reliable than the testimony by Rolfe
to which the denial was directed. As concluded above, there is
no credible evidence that Damron knew, or had reason even to
suspect, as of late August or September 1 that Rolfe “made
friends” with Florian or with any other “wrong people.” There
is no allegation that Respondent-Employer had failed to recall
Rolfe on August 10 because of knowledge, by either of Re-
spondents, that Rolfe had become aligned with Florian or any
other union dissident, such as Phillips or Crylen. Nor is there
any basis for inferring that Damron would somehow have come
to believe that Rolfe had not been recalled on August 10 for
having “made friends with the wrong people.” To the contrary,
as already concluded, the evidence shows no more than that
Respondent-Employer had recalled three employees on August
10 to perform full-duty work that, because of his doctor’s re-
striction, Rolfe was not qualified to perform. As an objective
matter, it simply makes no sense for Damron to have made the
“wrong people” remark attributed to him by Damron.
The fact is, as pointed out above, that Damron’s conduct on
August 10—protesting to Abbott about Respondent-Employer’s
seeming disregard of seniority in making the recalls for August
10—was naturally helpful to a laid-off employee in Rolfe’s
situation. As a result of Damron’s statements that day to Ab-
bott, the two probationary employees were sent home, leaving
two vacancies, had Respondent-Employer been disposed to
recall other laid-off employees, such as Rolfe. Of course, Re-
spondent-Employer never did recall—nor, so far as the record
discloses, hire—anyone to fill the vacancies which McFadden
and Wright would have occupied, had they been allowed to
punch in and go to work, as was Smalara. But, Respondent-
Employer is not alleged to have violated the Act by not filling
those two seeming vacancies. And Respondent-Union could
PRECOAT METALS 1227
not compel Respondent-Employer to recall employees to re-
place McFadden and Wright. Even had it been able to do so,
Respondent-Union could not have compelled Respondent-
Employer to recall Rolfe. He was restricted to light-duty work
and there is no evidence that Respondent-Employer needed, nor
assigned, anybody to perform light-duty assignment.
Not only did Damron’s August 10 protest to Abbott naturally
aid other laid-off employees, such as Rolfe, but Rolfe admitted
that Damron made an affirmative effort to aid Rolfe. Damron
offered to try to arrange a meeting between Rolfe and Boyle.
Consistent with Rolfe’s admission regarding that offer, Damron
testified that, during a conversation with Rolfe that may even
have predated the August 10 recalls, Rolfe had said that he
wanted to return to work at Respondent-Employer, but could
only work light duty and had been told that Respondent-
Employer “had no light duty.” Accordingly to Damron, Rolfe
continued by saying, “they’ve had light duty before. They’ve
changed the light duty requirements,” to which Damron sug-
gested that “you come on in and myself and the Committee
we’ll have a meeting with Jim Boyle to get to the bottom of it,
find out what’s going on,” but Rolfe “didn’t want to.” Of
course, as set forth above, Rolfe agreed that he had rejected
Damron’s offer of a meeting with Boyle.
Furthermore, Boyle testified that he had “told Mr. Damron to
set up a meeting at one point with Mr. Rolfe and myself and the
Union” to discuss Rolfe’s situation. But, testified Boyle,
“[p]robably within a week of my request” to Damron, Damron
“told me that he had contacted Mr. Rolfe and Mr. Rolfe refused
to meet with me.” Now, the very fact that Boyle and Damron
had discussed setting up a meeting between Boyle and Rolfe,
and the further fact that Damron had communicated to Rolfe
about meeting with Boyle, are facts which tend to refute any
testimony about Rolfe assertedly having not been recalled be-
cause the latter “made friends with the wrong people.” There is
no basis for concluding other than that both Boyle and Damron
had been attempting to help Rolfe. Only Rolfe’s own suspi-
cions—or, perhaps, desire to not return to work, under some
sort of misguided belief that he could obtain backpay without
having to work—undermined that attempt.
To be sure, no one can say with any certainty that a meeting
between Boyle and Rolfe would have resulted in some sort of
arrangement whereby Rolfe’s situation could be accommodated
by Respondent-Employer—that some sort of light-duty work
could have been figured out for Rolfe. On the other hand,
Rolfe’s rejection of the offer of such a meeting effectively fore-
closed any effort to work out such an accommodation. The fact
that Damron had been instrumental in the effort to arrange such
a meeting is strong evidence showing that Respondent-Union
had been attempting to fairly represent Rolfe, rather than aban-
doning Rolfe because he supposedly had “made friends with
the wrong people.” Moreover, in the overall above-described
sequence of events that Rolfe testified had led to his conversa-
tion with Damron, there are certain other factors which should
be considered.
Rolfe never explained why he had chosen to contact Robin-
son, rather than the grievance committeeman who should ordi-
narily have handled grievances for Rolfe. Robinson pointed
out that Rolfe “worked on another shift,” and “I didn’t even
know him because he worked on the other shift.” Conceivably,
Florian or, maybe, Phillips had suggested that Rolfe speak with
Robinson, since Florian and Phillips believed that Robinson
was favorably disposed toward Florian’s situation. That
seemed to be the fact as Robinson was testifying. But, it also
seemed that Robinson was not disposed to dissemble too
greatly when testifying—that he might be disposed to shade his
testimony somewhat in support of Florian’s position and in
opposition to that of Damron, but that he was not disposed to
wander too far from the truth, in contrast to other witnesses for
the General Counsel and Charging Parties. In the process, not
only did Robinson not corroborate much of Rolfe’s testimony,
concerning their conversation which led Rolfe to speak with
Damron, but Robinson contradicted Rolfe’s account in one
important respect.
As set forth above, Rolfe claimed specifically that he had
asked Robinson to file a grievance on his (Rolfe’s) behalf.
Asked specifically during direct examination whether he had
been requested by Rolfe to file a grievance regarding Rolfe’s
recall situation, Robinson answered unequivocally, “No.” Nor
did Robinson corroborate Rolfe’s testimony about the latter’s
having said “now because they find out that I’m number two,
they’re not going to call these people back.” Moreover, Robin-
son did not corroborate Rolfe’s testimony about having said
that Abbott was “trying to bargain my job for my hands.” To
the contrary, Robinson testified that Rolfe only “more or less
talked to me about his arm and his insurance,” and “somebody
had told him they had skipped him or something” when recall-
ing employees. That is the extent of Robinson’s account about
what Rolfe had said. As to his responses to Rolfe, Robinson
corroborated none of the above-described ones attributed to
him by Rolfe.
With respect to Rolfe’s comments “about his arm and his in-
surance,” testified Robinson, “I told him Rich Damron usually
takes care of that, go talk to Rich.” Concerning Rolfe’s state-
ment about having been told that he had been “skipped,” Rob-
inson testified, “I told him I wasn’t in the meetings concerning
the lay offs and the call back. I told him he had to go talk to
Rich.” When Robinson was further pressed, for whatever rea-
son, about his remarks to Rolfe, Robinson reiterated, “I always
referred Ken to Rich because Rich knew more about his case
than I do. Like I said, I just met the man. The man had been
working out there and I didn’t even know him because he
worked on the other shift.” A seemingly inherently-reliable
explanation. But one leaving little room for judgment-laden
“apparently looks like they’re going to let your time run out and
they’re going to let your six months run out and not call you
back” responses attributed to Robinson by Rolfe.
Lest there be any doubt, Rolfe’s testimony about his conver-
sation with Robinson is not a collateral subject. Testimony
about that conversation was elicited during direct examination
of both witnesses. Obviously, it was being elicited in further-
ance of the complaint’s allegation concerning Rolfe. Even had
it not truly accomplished such an objective, Rolfe and Robin-
son’s conversation is an integral component in the overall se-
quence of events leading to a supposed unlawful statement by
Damron to Rolfe. As it turns out, the testimony in support of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1228
that supposed unlawful statement is simply not credible, given
the totality of the considerations reviewed above.
Beyond that, there is no basis for concluding that Respon-
dent-Union had not been fairly representing Rolfe during Au-
gust in connection with anything that Abbott may have said to
him. There is no basis for concluding that Abbott had been
“trying to bargain [his] job for his hands,” and, accordingly, no
basis for concluding that he had related such a remark to Rob-
inson. Indeed, as noted above, Robinson did not corroborate
Rolfe’s testimony about having made such a statement to him
(Robinson). The General Counsel was unwilling to proceed
against Respondent-Employer’s decision not to recall Rolfe on
August 10. It had been Damron whose intervention led Re-
spondent-Employer not to recall McFadden and Wright,
thereby clearing the way for some other laid-off employees to
be recalled, were Respondent-Employer disposed to do so. It
had been Damron who attempted to broker a meeting between
Boyle and Rolfe, so that the latter could at least receive infor-
mation about his recall-status. There was nothing for Respon-
dent-Union to grieve about Respondent-Employer’s failure to
recall Rolfe. He was restricted to light-duty work; Respondent-
Employer had no such work during the summer. Therefore, the
credible evidence does not support an allegation that Respon-
dent-Union had unlawfully failed to fairly represent Rolfe on
and after August 10.
L. September 1 Third-Step Grievance Meetings
As discussed in subsection I above, White claimed that
Boyle had proposed, during the Illinois Bar and Grill meeting,
taking White’s grievance directly to the third-step contractual
grievance meeting and, furthermore, had made a like proposal,
during White’s first-step grievance meeting, to Morales and
Escobedo. Some support for that testimony by White might
facially appear to be derived from the fact that, indeed, White’s
grievance had been elevated directly to third-step grievance
meetings conduct on September 1. Yet, so also was Florian’s
grievance elevated directly to the third grievance-step. Cer-
tainly, it could not be said that Boyle was somehow attempting
to settle Florian’s grievance through the same grievance-step-
skipping as occurred with White. The fact is that by the time
that White filed his charges against Respondents on September
4, those third-step meetings had already occurred. It was an
easy matter at that point to attribute to Boyle proposals about
skipping the second grievance-step, inasmuch as that had al-
ready occurred by September 4. The unreliability of White’s
accounts of such a proposal by Boyle is further shown by cer-
tain other considerations.
The contractual second grievance step involved a meeting
between “[t]he Regional Manager”—Drufke, during August—
and “the Committee”—unit chairman and grievance commit-
teepersons—under article XIII, section 2, step 1 of the 1995–
1999 collective-bargaining contract. Boyle was Drufke’s sub-
ordinate. Inherently, there is a lack of plausibility to a scenario
whereby a subordinate officer takes it upon himself to propose
a course of action which excludes a superior officer. No ques-
tion that Drufke was concerned about Respondent-Employer’s
ability to prevail on Florian’s suspension and discharge during
disputes resolution. However, that is hardly a basis for infer-
ring that Drufke would have been willing to remove himself
from the second step of the contractual grievance procedure.
When he testified during rebuttal, Drufke never claimed that he
had authorized Boyle to make any proposal that would remove
Drufke from that procedure.
On the other side, there is no evidence that a grievance
committeeperson possessed authority to agree that an ensuing
step of the grievance procedure could be skipped, especially
when doing so would lead to the step at which Steelworkers
would become involved in handling grievances. Beyond that,
there is no basis for concluding that a unit employee, such as
White, possessed any authority to agree to any supposed em-
ployer-proposal to skip a contractual grievance step.
In addition to those organizational-structure considerations,
the record reveals that it had been Steelworkers then-Staff Rep-
resentative Langele who had taken the initiative to move
Florian’s and White’s grievances to the third contractual griev-
ance-step. He testified that already scheduled for September 1
third-step meeting with Respondent-Employer had been a
grievance concerning the discharge of employee Bruce
Palmer.22 Motivated by Florian’s charge against Respondent-
Union, Langele testified that he “contacted Rich and asked him
to get that grievance up to my step” for processing on the same
date as the one for Palmer. During their conversation, testified
Langele, Damron mentioned that White also had been termi-
nated. “I asked Rich to get both these hurried and brought up
to my, my step so we could hear it [sic] on the 1st of Septem-
ber,” testified Langele.
Damron agreed that Langele “told me to get all the meetings,
to get, ask the Company to get all the meetings together, mean-
ing three, three grievances.” “I done like he told me, yeah,”
testified Damron. Respondent-Employer agreed to Langele’s
suggestion. Third-step grievance meetings were scheduled for
Palmer, Florian and White on September 1. There is no basis
for concluding that some sort of failure to fairly represent had
occurred as a result of skipping the second contractual griev-
ance steps for Florian and White. To the contrary, doing so
removed their grievances from control by Respondent-Union,
which allegedly had been failing to fairly represent them, and
elevated them to control by Steelworkers, against which no
allegation of unfair labor practices has been made.
As described in subsection H above, Robinson had prepared
a grievance for Florian on August 13. But, as pointed out in
subsection I above, Morales had not actually prepared a griev-
ance for White by the time of the August 24 first-step meeting
concerning White’s suspension and termination. In fact,
Morales did not do that until August 29, though its belated
preparation never became an issue between Respondents, nor
with Steelworkers, in connection with resolution concerning
White’s suspension and termination. As will be seen, however,
it did become a subject of argument between Damron, White
and possibly Morales on September 1. The grievance which
Morales eventually did prepare protested “VIOLATION of
work Rule No. 10 And No. 11 [sic],” and stated, “Settlement

22 An undisputed fact which refutes any conclusion that Respondent-
Employer had been unwilling to fire any employee other than Florian
and White during the late spring and summer.
PRECOAT METALS 1229
requested in Grievance To BRiNg MR. JIM White back to
Work as SOON Possible [sic].” There is no contention that the
substance of that grievance was somehow improper and a viola-
tion of Respondent-Union’s duty of fair representation owed
White.
Although Morales prepared White’s grievance on Saturday,
August 29, White did not sign it prior to the time of his third-
step September 1 grievance meeting. It is undisputed that
Morales had called White’s home on August 29 and, as White
then was at work for another employer, left a message with
White’s wife “to come down and sign the grievance.” When he
returned home from work and received the message from his
wife, White testified that he did not “have Mr. Morales’ home
phone number,” and so telephoned Respondent-Employer’s
facility. Morales had left work for the day, but White was able
to speak with Escobedo.
White testified that when he asked if he should come down
and sign the grievance, Escobedo replied “that Eddie Morales
has all the paperwork and he doesn’t have nothing to do with
it,” or, “Eddie has all the paperwork, that you have to sign it by
him” Inexplicably, White never claimed that he had asked
Escobedo for the home telephone number of Morales. Instead,
White testified that he then asked Escobedo “can I sign the
grievance first thing Monday morning?” or, “if I could come in
and sign it September 1st, the day of the third-step grievance
meeting,” or, “if I could sign it Monday morning at the meet-
ing?” According to White, Escobedo responded, “okay,” or
“that would be fine with him,” or “fine by me.” Escobedo
never disputed that testimony by White. So when White ar-
rived at Respondent-Employer on Monday, September 1 he had
not yet signed his grievance and, as a result, his grievance had
not actually been filed. Before describing the exchange be-
tween White and Damron about that fact, three other events
must be reviewed.
First, ever seemingly intent on attempting to show ill treat-
ment by Respondent-Union, Florian testified that he had
learned of his September 1 third-step grievance meeting from
an anonymous phone caller. According to Florian, the caller
“said Chester? And I said, yes. You have a meeting September
1st at such and such a time, and click.” Florian claimed that he
did not recognize the caller’s voice. But, nothing in the record
suggests that Respondent-Union had anything to gain by
anonymously calling Florian with cryptic notice of his third-
step grievance meeting.
During cross-examination it was pointed out that Florian had
testified that the caller had said only “a meeting,” and Florian
was interrogated about how he had known that the caller was
referring to the third-step grievance meeting. A somewhat
flustered-appearing Florian answered that he had effectively
just assumed that it was his third-step grievance meeting to
which the caller was referring: “For that kind of meeting, yes,”
he could show up, because “I took a chance because I was out
on the streets.” Then he testified, “A grievance meeting I was
told to come to.” But, apparently realizing that he was contra-
dicting himself, Florian quickly backtracked by testifying,
“Told me I had a meeting set up on September 1st.” Ultimately
he denied again that the anonymous caller had told him what
kind of meeting and asserted that he “[t]ook it for granted” that
it had been his third-step grievance meeting to which the caller
had been referring.
Damron testified that he had been the person who had tele-
phoned Florian and had given notice of the third-step meeting
on Florian’s grievance: “I called Chester up, identified myself
and told him when the meeting was going to be.” As already
pointed out, Damron was not always a reliable witness. Yet,
his account is inherently more plausible than is Florian’s por-
trayal of an abruptly-placed telephone call from some anony-
mous person who, “like Hairbreadth Harry in a Drury Lane
melodrama,” Schroeder Distributing Co., 171 NLRB 1515,
1526 (1968), gave notice of some sort of meeting and hung up.
The fact is that the third-step grievance meeting had been ar-
ranged by, and would be conducted by, a representative of
Steelworkers. There is no evidence that Steelworkers’ officials
had harbored any animosity toward Florian. Having taken the
trouble to seek elevation of Florian’s grievance, it seems most
unlikely that Steelworkers would not want to be certain that
Florian was present during the meeting. Damron had been
instructed by Langele to arrange for that meeting on Florian’s
grievance. It seems unlikely that Damron would have left him-
self vulnerable to criticism by Steelworkers, especially in view
of Florian’s already-filed unfair labor practice charges, by not
following through and ensuring that Florian was given proper
notification of the third-step grievance meeting—by playing
some sort of game with Florian when giving notice of that
meeting.
The second event, to be reviewed before turning to consid-
eration of what occurred on September 1, involves Rolfe. He
testified that he “had some bills to bring down to” Abbott and
that he learned from Florian, “a day, two days” before Septem-
ber 1, that “Mr. Langele was supposed to be there” on that date.
There is no evidence that Respondent-Union ever learned that
Florian had told that to Rolfe. So, Florian’s notification to
Rolfe does not supply any basis for inferring that Respondent-
Union knew or suspected that an “affiliation” had developed
between Florian and Rolfe. What Florian’s notification to
Rolfe does show is the reason for Rolfe’s appearance at Re-
spondent-Employer’s Chicago facility on September 1, as de-
scribed below. Having failed to achieve satisfaction from Rob-
inson and Damron, as described at the end of subsection K
above, Rolfe decided to approach Langele.
Third, as it turned out Langele did not appear at Respondent-
Employer on September 1. “I though[t] I’d be able to handle”
the grievance meeting that day, testified Langele, but he “had
outpatient surgery that day.” As a result, he was not able to
appear for those meetings “with the way that the things were
scheduled for my surgery,” he testified. So, he further testified,
he “asked Sub-director Pasnak [sic] to fill in for me at the last
minute.” Then-Sub-Director Pasnick agreed that Langele “had
to go into the hospital and have some tests run. And that was
the only date that this specialist had available for him to come
down and have the tests.” “So, kind of the last minute, Craig
[Langele] called me and said that he had a [sic] discharge cases
and he asked me to fill in for him, because we don’t like to, you
know, hold up the discharge cases,” Pasnick testified. He went
to Respondent-Employer’s Chicago facility on September 1 for
the grievance meetings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1230
It hardly can be argued with any persuasion that Florian’s
and White’s representation had been somehow compromised by
the “last minute” substitution of Pasnick for Langele. In fact,
there is no unfair labor practice charge against Steelworkers.
Yet, it became Steelworkers, not Respondent-Union, who con-
trolled the processing of those two alleged discriminatees’
grievances once the third-step of the contractual grievance pro-
cedure was reached. No one challenged the genuineness of the
surgery-explanation for Langele’s nonappearance. No evidence
shows that Florian or White suffered some sort of prejudice by
having Pasnick, rather than Langele, process their grievances
on September 1. To the contrary, that occurred because of
Steelworkers’ desire not to “hold up the discharge cases,” an
objective also sought in Section 10(m) of the Act for the
Board’s processing of cases.
On September 1 Pasnick, accompanied by Damron, Morales,
and Escobedo, conducted the third-step grievance meetings.
Representing Respondent-Employer at those meetings were
Boyle, Abbott, and Moore. As already pointed out, the pri-
mary, perhaps the only, theory advanced to support the unlaw-
ful failure to fairly represent Florian and White is that, because
of Florian’s past and projected efforts to run for unit chairper-
son, Respondent-Union, specifically Damron, caused Respon-
dent-Employer, specifically Boyle, to discharge Florian. When
White engaged on August 6 in the same conduct for which
Florian had been suspended on August 4, that theory proceeds,
it became necessary for Respondent-Employer to also suspend
and, later, also discharge White for having done so, in order to
disguise or conceal its alleged unlawful motivation for having
suspended and, later, discharged Florian. Thus, the theory pro-
ceeds, Respondent-Union could hardly represent Florian fairly,
given its role in causing Florian’s suspension and termination,
nor could it have fairly represented White in the circumstances.
As concluded in preceding subsections, credible evidence
fails to support any aspect of that theory. There is no credible
basis for concluding that Respondent-Union had caused Re-
spondent-Employer to suspend and discharge Florian. Nor
does it support a conclusion that Respondent-Employer sus-
pended and discharged Florian for a motive unlawful under the
Act. To the contrary, credible evidence supports the conclusion
that Florian brought discharge upon himself by ignoring warn-
ings that driving on South Kilbourn Street between buildings
while on the clock was no longer going to be tolerated by
newly-arrived Plant Manager Boyle. Florian was caught doing
so on August 3; accordingly he was suspended and, then, dis-
charged. Despite knowing about Florian’s suspension, White
drove between buildings while on the clock on August 6, and
when Respondent-Employer discovered that fact, it suspended
and, then, terminated White, as it had done to Florian. There is
no credible evidence of an element of disguise or concealment
in connection with White’s suspension and termination.
Rather, those disciplinary measures constituted no more than
consistent application of work rules to employees and consis-
tency of discipline imposed.
Beyond that, the circumstances of Florian’s and White’s sus-
pensions and terminations admit of no inference, much less
conclusion, that Respondent-Union had anything to do with
those disciplinary decisions, directly or indirectly. Thus, noth-
ing in those suspensions and terminations supports a conclusion
that Respondent-Union had inherently been unable to fairly
represent Florian and White. To the contrary, a preponderance
of the credible evidence shows that Robinson and Morales had
done their best to do so and, further, fails to support an infer-
ence or conclusion that Damron somehow had impaired the
abilities of those two grievance committeemen to do so.
That leaves for consideration only the somewhat marginal
possibility, given the credible evidence in this case, that Re-
spondent-Union somehow failed to satisfy its statutory obliga-
tion of fair representation on some other basis. Of course, as
discussed in subsection H above, Florian effectively admitted
that Robinson had done all that he could to protest Respondent-
Employer’s grounds for suspending Florian and, concomitantly,
for then discharging him. Similarly, as discussed in subsection
K above, Morales seems to have done all that he could, during
the first-step grievance meeting, to challenge Respondent-
Employer’s decision to suspend and terminate White. Cer-
tainly, White has suggested no added arguments that Morales
could have plausibly made in the circumstances. That leaves
for consideration, though never alleged to have been unlawful,
Steelworkers’ processing of Florian’s and White’s grievances.
In that regard, it should not be overlooked that while Florian
and White had suffered like penalties for committing like of-
fenses, their situations as of September 1 were not the identical.
Florian had received notice prior to August 3 from Escobedo
and Moore that Boyle would no longer tolerate driving on
South Kilbourn Street between buildings after punching in and
before punching out. But, as of August 3, when Moore again
caught Florian doing that, no employee had ever been actually
disciplined for engaging in such no-longer-to-be-tolerated con-
duct. Indeed, from the evidence presented, Florian appears to
have decided that Respondent-Employer was not truly serious
about no longer tolerating such conduct and that continuing to
drive between buildings was more convenient that walking
back and forth.
That was not a belief which White could legitimately have
indulged as of August 6, when he drove on South Kilbourn
from the annex to the main building to punch out. Not only did
he know by August 6 that Respondent-Employer no longer
intended to continue tolerating such conduct, but White also
knew that it would discipline employees caught doing so.
White knew that because of what had happened to Florian. The
very fact that White had known those facts as of August 6 ren-
dered his situation quite different from that of Florian: White
nor Respondent-Union were hardly in a position to argue that
White, unlike Florian, was not truly aware that Respondent-
Employer intended to discipline employees caught driving on
South Kilbourn between buildings while on the clock.
A separate meeting was conducted on September 1 for each
of the grievances. The parties met first to deal with Palmer’s
discharge. Then they met on White’s suspension and dis-
charge. Finally they met to deal with Florian’s grievance. As
discussed above, White had not actually signed his grievance
by the time his September 1 meeting convened. In fact, he did
not sign it until his third-step grievance meeting was already in
progress. That is a nonissue, however. Respondent-Employer
participated in the third-step grievance meeting regarding
PRECOAT METALS 1231
White’s suspension and discharge. It never raised any objection
concerning lack of receipt of a written grievance on behalf of
White. Nonetheless, the foregoing two factors—difference
between Florian’s and White’s situation and failure to have
signed a grievance earlier—became subjects of heated discus-
sion between White and Damron on September 1. In fact, their
argument led to a physical altercation. That altercation, in turn,
has led to the allegation that Damron unlawfully “inflicted in-
jury upon White by grabbing and choking him about the neck
because he repeatedly referred to discharged employee Florian”
on September 1.
On its face that is a somewhat puzzling allegation. The Sep-
tember 1 meeting which White attended was confined to his
own situation; Florian participated in a separate third-step
grievance meeting that day confined to his own suspension and
termination. As pointed out above, White’s situation differed
from that of Florian. Section 7 of the Act does not inherently
protect an employee’s repeated references to another employee
during the processing of that first employee’s grievance.
Still, pleading-language aside, the point seems to be that
Damron became angered at White’s purported repeated men-
tion of Florian’s name, ostensibly because Damron knew that
he had unlawfully caused Florian’s suspension and discharge.
The latter is no more than pipe dream, given the conclusions
already reached that there is no credible evidence to support a
conclusion that Respondent-Union had caused Florian’s sus-
pension and termination. It also may be that the allegation is
based upon the theory that, hostile toward Florian, Damron
simply had become angered at White’s purported repetition of
Florian’s name and, as well, possibly concerned that White had
become “affiliated” with Florian as August passed. As it turns
out, even based upon White’s own testimony during direct
examination—when, presumably, the best case possible was
being advanced on behalf of White, cf. McKenzie Engineering
Co., 326 NLRB 473, 483 (1998), enfd., 182 F.3d 622 (8th Cir.
1999), regarding what had occurred between Damron and him
on September 1—there is no basis for concluding that Respon-
dent-Union had violated Section 8(b)(1)(A) as a result of what
happened on September 1.
During direct examination White testified that, when he ar-
rived for his grievance meeting, he had been told to wait in the
reception area “until you’re called for your hearing.” “Ken
Rolfe and Chester showed up right before I was going into the
meeting,” testified While. As will be seen, testimony about
Florian’s presence before White’s third-step meeting was con-
tradicted by Rolfe. In fact, the point at which Florian arrived at
Respondent-Employer that day becomes significant in evaluat-
ing certain testimony given by both Florian and White, regard-
ing what had occurred when White was leaving the Chicago
facility following the altercation with Damron.
According to White, “The meeting started out by Ray [Pas-
nick] saying, well, I don’t have a grievance in front of me or a
grievance number and what’s this, what is this about?” “Ray
put it out there, it was just general, you know, what is this
grievance about,” testified White, “And nobody answered so I
answered.” White testified that he said to Pasnick, “this is just
like Chester’s case about driving around the building, leaving
company premises.” He further testified that Pasnick then
“started to ask Mr. Boyle some questions like where’s the time
clock? Is there a time clock in the annex building? Is it cus-
tomary for people to drive around? And just general questions.”
But, White expressed uncertainty about whether Boyle had
answered Pasnick’s questions and, if so, what exactly Boyle
had said: “I’m sure he responded, no, there’s no time clock
there. The time clock’s in the main building. I’m sure those
were the answers. I really don’t remember.”
“I guess Mr. Pasnak [sic] wanted to get a little more familiar
with what was going on, so he asked the company then if he
could discuss this amongst ourselves,” continued White, “So
the company then got up and left the room.” At that point,
testified White, “Rich [Damron] started saying these things
have to be signed in a timely matter [sic]. And I start saying,
well, look at [sic]. I’m following your advise [sic]. You’re
telling me when to come in and do this and I’m doing every-
thing that you’re telling me to do.” In other words, Damron’s
initial complaint, as described by White, had been about the
absence of a signed grievance, as opposed to having anything to
do with any relationship between Florian and White. Indeed,
while it had been White who had responded to Damron’s com-
plaint, it is not certain from White’s account that it had been
White to whom Damron had directed his complaint. After all,
Morales also was in the room and, as with Robinson’s prepara-
tion of Florian’s grievance, Morales had been the grievance
committeemen responsible for preparing and filing White’s
grievance. In any event, Damron’s complaint about absence of
a timely-signed grievance is not covered by the above-quoted
allegation in the complaint.
After that exchange, White testified, Damron “says this is
not like Chester’s case. You keep saying it’s like Chester’s
case.” But, White’s own above-quoted testimony shows that
White did not “keep say [sic]” anything about Florian to that
point during the meeting. According to White’s testimony to
that point, he had only once mentioned “this is just like Ches-
ter’s case,” and, accordingly, there was no objective basis for
Damron to have made such a “keep saying” accusation. Ac-
cording to White, he responded to that accusation by telling
Damron “that it is like Chester’s case. We were both fired for
the same reason,” but Damron said, “again that it’s got nothing
to do with Chester’s case. That I mentioned Chester’s name
three times in the meeting. And I says, I only mentioned Ches-
ter’s name twice in this meeting.” Setting to the side the num-
bers purportedly given, the fact is that Damron’s point, assum-
ing it had been made, was a correct one.
As set forth above, while Florian and White had engaged in
identical by-then prohibited conduct, they had done so sepa-
rately and their situations as of September 1 were not the same.
In fact, that was the very point which White had made to
Moore: when he had driven between buildings on August 6, he
had not been trying to “make a statement,” an ambiguous re-
mark, but one which appears aimed at informing Moore that
White had not driven between buildings as some sort of effort
to join forces with Florian and his conduct on August 3. Of
course, a remark that White’s case had been “like Chester’s
case,” on its face, might be construed by Respondent-Employer
as contradicting earlier denials by White that he had not been
trying to “make a statement” by his August 6 trip on South
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1232
Kilbourn Street. A listener might infer, at least, that White was
saying on September 1 that his misconduct had been related to
that of Florian. Worse from Florian’s point of view, Respon-
dent-Union was arguing that Florian could not have known that
discipline would result from his August 3 trip between build-
ings. That was not an argument which could plausibly be ad-
vanced on behalf of White, who had known of Florian’s sus-
pension before White drove between buildings. To equate his
case with that of Florian, White’s comments might be con-
strued by Respondent-Employer, or at least argued by it, as
some sort of concession that, in fact, Florian had known that
discipline would be imposed for driving on South Kilbourn
Street between buildings while on the clock.
In any event, on its face, Damron’s remark does not show
that he had assertedly become upset simply because White had
mentioned Florian’s name; rather, Damron had become pur-
portedly upset because White was arguing that the situations of
the two discharged employees were the same. It can hardly be
concluded that statutorily-protected activity is restrained or
coerced by an argument over whether one discharged em-
ployee’s conduct is or is not “like” that of another discharged
employee. To be sure, grievance-filing and -processing are
activities protected by Section 7 of the Act. So, also, is arguing
theories to employers during grievance-processing. Yet, the
bargaining agent is not obliged under the Act to adopt and ad-
vance every argument which an employee chooses to make. In
that regard, some latitude must be left under the Act for give
and take between bargaining agent and employee about particu-
lar arguments which can plausibly, and will, be argued to the
employer. From White’s own testimony, that is the most that
occurred here.
The situation on September 1 was no different than what had
occurred during November of 1997 when, as described in sub-
section D above, Escobedo had spoken to Rolfe after the union
meeting. There, as here, it had not been mere mention of
Florian’s name which had sparked the asserted response of
Respondent-Union’s officer. During November of 1997 it had
been the mention of a particular contract interpretation, albeit
one supposedly advanced by Florian, that had led to Esco-
bedo’s comment. Here, it had been an equation of discharge
situations by White that had supposedly led to Damron’s com-
plaint that White’s situation was not “like” that of Florian—had
“nothing to do with Chester’s case.” No conclusion of unlaw-
ful statement can be based upon White’s testimony about that
supposed remark.
White testified that, as he and Damron argued over the com-
parative situations of Florian and White, “his voice is started
raising [sic]. My voice started rising. We started back and
forth.” Then, according to White, “Eddie Morales finally
handed me the grievance,” which White signed. Still, testified
White, “like I say, words start getting heated between Rich and
I because he’s saying that I’m the one that’s screwing it up,
that, because I’m not signing things. I’m following their, what
they’re telling me to do.” Thus, the argument between White
and Damron had ceased being about comparability or noncom-
parability of Florian’s and White’s cases, and had returned to
the subject of timely signing of grievances. “At this point I
says, look it,” White testified, “You guys are going to screw us
anyway. I’m getting out of here. I’m leaving. I’m leaving.”
So I got up, started to leave. Walking toward the door.” Now,
it should not escape notice that, despite whatever dispute had
been occurring between Damron and White to that point,
White’s “I’m leaving” announcement was wholly dispropor-
tionate. Certainly, there was no reason, based upon White’s
own account of what had been said, to accuse anyone of “going
to screw us anyway” and, moreover, no basis for White to have
abandoned the grievance procedure.
The room in which all of the foregoing was occurring is a
rectangular one with a single door situated near one end of one
of the long walls. In that room is a large rectangular table.
That table was so positioned on September 1 that one short end
of it was essentially across from the room’s door. It had been
at that end of the table where Damron was sitting. From his
position at the opposite end of the table, to walk to the door
White also had to walk in the direction of where Damron had
been seated.
As he did so, testified White, “Rich got up out of his chair
and says, you’re leaving? You’re leaving? That’s when he
grabbed me around the shirt like this, scratching my neck up in
here.” According to White, “That’s when I threw my hands up
and I go, I looked at Ray Pasnak [sic] and I says, hey, what’s
going on here? At this point, Eddie Morales comes around.
Grabs Rich Damron, pushes him back and I leave.” At best,
that testimony given by White during direct examination—
presumably the best evidence in support of the complaint’s
allegation, see, McKenzie Engineering Co., supra —shows not
that Damron’s conduct had resulted from mention of Florian’s
name, but instead because White had announced that he in-
tended to leave the meeting, effectively abandoning his own
third-step grievance meeting. Consequently, White’s testimony
leaves no room for concluding that any injury inflicted upon
him had been “because [White] repeatedly referred to dis-
charged employee Florian.” Conversely, there is no allegation
that Respondent-Union had violated the Act by a physical alter-
cation resulting from an announcement by White that he was
leaving a grievance meeting.
The Act does not broadly deputize the Board as some sort of
police court empowered to adjudicate internal disputes between
labor organizations’ officers and members. Only recently the
Board held that it could not become involved in internal affairs
of labor organizations, so long as whatever happened had no
affect on employment relationships, access to the Board or
some other public policy interest encompassed by the Act.
Office Employees Local 251 (Sandia National Laboratories),
331 NLRB 1417 (2000). No one countenances acts of vio-
lence. Here, however, no official of Respondent-Employer had
been present when the altercation occurred between Damron
and White. That altercation has not been shown to have had
any affect upon White’s employment situation, To the con-
trary, Steelworkers continued processing White’s grievance
after September 1 and, eventually, struck a settlement whereby
White was able to return to work with Respondent-Employer,
with the amount of backpay, if any, to be left for resolution
during arbitration. Obviously, the altercation had no affect
upon White’s access to the Board; he filed charges against Re-
spondents on September 4, as mentioned in footnote 1 supra.
PRECOAT METALS 1233
Therefore, there is no basis for concluding that the September 1
altercation violated Section 8(b)(1)(A) of the Act.
It should not be overlooked that White’s testimony about that
altercation is not left uncontroverted. Damron acknowledged
that he and White had gotten into an argument on September 1
over “the manner that the grievance was followed, the time
limitations and all of it,” during which “we were passing words
back and forth to each other.” “He got up, I thought he was
going to leave,” testified Damron, but “he walked over to me,
shaking his finger in my face. I got up and pushed him back
and he said, I’m going.” Damron denied specifically that he
had choked White, that he had grabbed White by the shirt, and
that he had grabbed White by the neck and scratched White’s
neck. “Pushed him away from me,” Damron testified had been
all that he had done.
White is the larger of the two men involved in that alterca-
tion. Neither Morales nor Escobedo testified about it. But
Pasnick did. He testified that White and Damron “got into an
argument over who filed the grievance and who was responsi-
ble for seeing that the grievance was filed and was it Mr.
White’s obligation to go and find Mr. Damron to sign the
grievance and file the grievance,” or, instead, “was it Mr. Dam-
ron and the committee’s obligation to go find Mr. White to fill
out the grievance.” Despite his own statements to them that the
subject was effectively a nonissue, testified Pasnick, “these two
were carrying on, both of them. And Mr. White gets up from
the end of the table and he starts coming down to the other end
of the table,” toward which White had to walk to exit the room,
but also toward where Damron had been sitting at the table’s
end.
“Mr. Damron gets up and they’re shouting at each other,”
Pasnick testified, “And Mr. White waves his hand at Rich and
Rich is standing a few feet away or two feet away from Mr.
White and goes over and pushes . . . Mr. White. You know,
puts his hands up on his chest and gives him a shove.” In other
words, neither Damron nor Pasnick testified that Damron had
done other than shove White. But, Florian made some effort to
collaterally support White’s account of having been “grabbed
. . . around the shirt” and of Damron having “scratch[ed]”
White’s neck.
As pointed out above, White testified that Rolfe and Florian
“showed up right before I was going into the meeting,” and
when he left the room, White testified, “I went down the hall-
way out into the reception area,” where “I saw Ken and Chester
out there.” “Chester says, what’s going on?” testified White,
“And I said, Chester, they’re going to screw us, they’re going
to get us no matter what. We ain’t got a chance. Look what
they did to me. I says, I can’t talk to you. I’m out of here,”
and, “they scratched me all up,” after which White left.
Florian did not corroborate White’s testimony about having
arrived Respondent-Employer’s facility “right before [White]
was going into the meeting,” but instead testified that he had
arrived “approximately a half hour before [his own] scheduled
meeting,” and, aside from the receptionist, mentioned only
having seen Rolfe in the reception area. As he and Rolfe con-
versed, testified Florian, “the office door had opened up and
Mr. White came out.” According to Florian, White’s “face was
red and he had some marks on his neck,” which Florian de-
scribed as “actual scratches running down his neck.” Florian
testified that “I asked him, Jim, what’s the matter,” and White
“told me, Chester, this is nothing but a farce, this meeting,”
and, “you’ll never get your job back and told me he was just
attacked by Rich Damron,” and “he had to leave and would call
me at a later date.” “So he left the plant,” testified Florian.
Obviously Florian’s testimony tends to support that of
White, to the extent that more than the “push” or “shove” de-
scribed by Damron and Pasnick had occurred. The problem is
that Rolfe apparently was not clued-in on what Florian and
White would be testifying about the reception-room encounter.
Rolfe agreed that he had seen White before the latter went in to
his third-step grievance meeting. Rolfe also agreed that
“[a]pproximately a half hour” after White had entered the meet-
ing room, White “came storming out . . . and he said . . . look at
what that f--king Damron did to me. Look what he did to me.
He grabbed me round the neck, choked me.” “And he kind of
stormed out of the office,” testified Rolfe, saying “he was going
to file a grievance with someone.” Rolfe further testified that
he had seen “red marks around [White’s] neck.” Now, clearly
that testimony tends to support that given by Florian and White.
Notice, however, that Rolfe’s account omits any mention of
such colorful phrases as “they’re going to screw us, they’re
going to get us no matter what. We ain’t got a chance,” as
White claimed he had uttered to Florian and Rolfe, and, also,
“Chester, this is nothing but a farce” and you’ll never get your
job back,” as Florian testified that White had said. Most impor-
tantly, Rolfe’s above described account omits any mention of
Florian having even been present when White had come back
into the reception area.
An effort was made to correct that, through a question about
who had been present when Rolfe saw White the second time,
as the latter came back into the reception area. Rolfe answered:
“I believe Chester was just coming into the plant when Jim
White was going out.” Shortly afterward Rolfe was asked what
he had done after having talked with White. “Well, Chester
came in for a few minutes,” answered Rolfe. All else aside,
those answers by Rolfe tend to contradict the testimony by
White and Florian that Florian had been present when White
reentered the reception area. They also tend to contradict
White’s and Florian’s testimony about what supposedly had
been said to Florian by White, as the latter reentered the recep-
tion area. True, at one point Rolfe testified that, as White was
leaving and “Chester was just coming in,” White told Florian
“he didn’t have time to talk to him, that he was out of here.”
But Rolfe then testified, “And then Chester asked me what
happened. I had told Chester what happened.” In short, Rolfe
effectively contradicted Florian’s and White’s testimony that
the latter had described to the former what supposedly had
occurred in the meeting room. According to Rolfe, he had been
the one to do that.
One other point concerning White’s third-step grievance
meeting merits further attention, given the allegation about
failure to fairly represent White. As set forth above, White’s
testimony portrayed Pasnick as having seemed somewhat mys-
tified about the substance of White’s grievance when the meet-
ing started. But representation is sometimes a process of not
revealing all of one’s cards—of not disclosing to the other side
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1234
all knowledge possessed by the representative at any given
time.
Pasnick testified that it was customary for the Steelworkers’
official to meet with a unit’s committee to “talk amongst our-
selves and get the background information and fill me in on
where we are in the grievance procedure and what issues there
were.” He further testified that, on September 1, Respondent-
Union’s committee—presumably Damron, Morales and Esco-
bedo—had told Pasnick “that nobody had ever been discharged
for this rule violation or any similar rule violation,” though
Respondent-Employer “had given some employees a ten-day
suspension . . . . For a more serious . . . infraction of the rule,”
such as “[l]eaving the company property to go out to lunch and
not clocking out or notifying anyone.” Based upon what he
was told, Pasnick formed the conclusion “that the punishment
didn’t fit the crime,” and only a lesser penalty was warranted.
It is worth noting that Pasnick’s conclusion was essentially the
same as the argument advanced by Robinson on Florian’s be-
half during the August 7 sit-down meeting, as described in
subsection H above—an argument which Florian agreed had
embodied everything that could be argued on his behalf.
Of course, as pointed out above, that was not an argument
available to Pasnick to advance on behalf of White—White had
known about Florian’s suspension in seeming anticipation of
discharge, for having driven on South Kilbourn between build-
ings to punch out, by the time that White also had done that on
August 6. Even so, Pasnick obviously knew that White was
claiming that he had “just done [that] inadvertently.” Pasnick
testified that he had made that argument to Respondent-
Employer’s officials on September 1: “It’s a question of habit.
People had done it before, and the company, even though the
company’s now trying to reenforce the rules, you know, that
this is certainly not a grounds for discharge,” testified Pasnick,
without contradiction. That said, there seems nothing more that
could have been argued on White’s behalf, given his knowl-
edge of Florian’s suspension by August 6 and his admissions to
Respondent-Employer that he had driven that day from the
annex to the main building to punch or clock out. In sum, re-
gardless of what he chose to divulge or not divulge to Respon-
dent-Employer’s officials at the beginning of White’s third-step
grievance meeting, there is no basis for any conclusion that
Pasnick had been unaware of, and had not made, the best possi-
ble arguments on White’s behalf during that meeting.
Florian’s meeting was the final one conducted on September
1. Before it convened, Pasnick met with Florian. As set forth
above, Damron, Morales and Escobedo had been present for the
third-step meetings. Ordinarily Robinson would have been
present during Florian’s meeting, inasmuch as Robinson was
the grievance committeeman on Florian’s shift and the commit-
teeman who had prepared and filed Florian’s grievance. Rob-
inson testified that he thought that he had been advised by
Damron about the third-step meeting. But no one summoned
Robinson to the meeting on September 1.
On the other hand, Robinson admittedly made no effort on
September 1 to leave the line to attend Florian’s meeting. He
testified that, during a telephone conversation “before the meet-
ing,” he had “told Chester to come down a little early. I’ll get
off the line. Maybe we can go over some things.” Yet, Robin-
son never claimed that he had tried to “get off the line” on Sep-
tember 1. Moreover, as pointed out above, Rolfe admitted that
Florian had not arrived at Respondent-Employer’s Chicago
facility until after White’s meeting had concluded. Florian
never claimed that he had sought to speak with Robinson, once
Florian had arrived at that facility. Meanwhile, testified Robin-
son, “I just was going to continue to do my job until the super-
visor tell [sic] me I can leave and go to the meeting.”
As pointed out above, Robinson acknowledged that he had
been told by Damron about the scheduled third-step meeting for
Florian’s grievance. The fact that Damron had done so is some
indication that Damron had not been attempting to exclude
Robinson from that meeting. After all, telling Robinson about
the meeting was hardly the best method for eliminating Robin-
son’s attendance at it. Damron testified that, in addition, he had
requested that Boyle make arrangements for Robinson to attend
Florian’s third-step grievance meeting, but had been told by
Boyle that Robinson could not be relieved to attend. In fact,
Robinson acknowledged that there had been occasions when
Respondent-Employer had been unable to locate relief so that
he could attend meetings.
In any event, Florian’s own testimony shows that he never
protested the absence of Robinson when he first met with Pas-
nick on September 1, even though he seemingly had been
aware of which unit officers had been in attendance at the meet-
ings. Instead, he testified that, when Pasnick had come outside
the meeting room to discuss the situation, “I had told Mr.
Paznak [sic] that if he was aware that I filed charges with the
. . . Board, that there was a conspiracy between the company
and the union to have me terminated,” and, further, because
Damron, Escobedo and Morales were “in this meeting, I says I
don’t feel I’m going to get fair representation,” and wanted “a
third party witness [to] come in” in view of what had happened
to White during his third-step meeting. Note that Florian made
no mention of Robinson. According to Florian, Pasnick denied
Florian’s request for a “third party witness,” and, also said “he
really didn’t want to hear about any” conspiracies because “he
was here for my grievance meeting.” Three points must be
made about Florian’s account of that exchange with Pasnick.
First, as concluded above, there is no credible evidence of
any “conspiracy between the company and the union to have
[Florian] terminated.” It is hardly surprising that Pasnick
would not want “to hear about” a supposed one. Second, there
is no evidence that Steelworkers ordinarily admit whatever
third-party witnesses a grievant wants to have sit in during
grievance meetings with employers. Finally, Florian never
bothered to explain why he had sought “a third party witness,”
rather than Robinson, when Florian obviously knew which unit
officers were present for the meeting. The absence of such an
explanation tends to support certain testimony by Pasnick;
asked if Florian had requested that Robinson be present, Pas-
nick answered, “No, I don’t believe so.”
Pasnick acknowledged that it was ordinary procedure to have
present in grievance meetings the grievance committeeman
who had been handling the grievance under consideration. But,
testified Pasnick, “I was unaware” that Robinson had been that
committeeman for Florian’s grievance “at the time of the meet-
ing.” In the final analysis, it can hardly be argued persuasively
PRECOAT METALS 1235
that failure to have ensured Robinson’s presence initially on
September 1 somehow shows an unlawful failure to fairly rep-
resent Florian on that date. Robinson possessed no special facts
about the circumstances of Florian’s suspension and discharge.
So far as the evidence discloses, Pasnick possessed the written
materials in connection with both disciplinary actions, as well
as an explanation from the committee, as well as Florian’s pre-
meeting statements, pertaining to the events of August 3, 4, 7,
and 10. At best, therefore, Robinson’s absence was a fault, but
not an unlawful one under the Act. Indeed, Florian acknowl-
edged that he had understood that Robinson would not have
been acting as his representative during the third-step meeting.
And, in any event, as described below, Robinson did eventually
arrive as the meeting progressed. Interestingly, there is no
evidence that, after having arrived, Robinson made any particu-
lar contribution to the arguments on behalf of Florian.
With respect to what occurred during Florian’s third-step
grievance meeting, there are really two aspects to Florian’s
testimony about it: an exchange between Florian and Damron
over Robinson’s initial absence from that meeting and, sec-
ondly, the arguments advanced by Pasnick on Florian’s behalf.
As to the former, as described above Robinson testified that he
had continued working that day, anticipating that he would be
relieved so that he could attend Florian’s meeting. Eventually
that did occur, testified Robinson. The line foreman, Wally or
George, came to him and said to report to the grievance meet-
ing. By the time Robinson entered the room, he testified, the
meeting was already in progress.
Florian testified that when he had entered the meeting room,
“I noticed that John Robinson wasn’t there.” Noticing that,
Florian further testified that he had “asked Mr. Paznak [sic] at
that time . . . where John was at, that he’d been handling my
case right along.” According to Florian, Pasnick replied, “he’s
probably tied up someplace and he’ll be here.” It may have
been that remark which led Respondent-Employer to summon
Robinson to the meeting.
Florian testified that Pasnick told Boyle “that nobody had
ever been fired for driving their car from one building to the
other, for this work rule 11. He felt that this was too severe of a
punishment at this time,” and asked that Florian instead be
given “a disciplinary suspension instead of termination.” “At
that point I stopped the meeting,” testified Florian, “and asked
Mr. Paznak [sic] if I can talk to him. He agreed. He asked the
company to step out.” Apparently before Respondent-
Employer’s officials had time to leave, Robinson arrived.
“I waved him in,” Florian testified, and “Mr. Damron at that
time jumped out of his chair and told me, who the hell do you
think you are, bringing anybody into these meetings and started
to kind of approach me. Mr. Paznak [sic] at that point stuck his
arm out, stopped him and told him, I told you to control your-
self and sit down, that he [Pasnick] will handle this meeting.”
That colorful description, however, has an inherent flaw: Rob-
inson would ordinarily have attended Florian’s third-step griev-
ance meeting. Damron had earlier asked Boyle to allow Robin-
son to be present. So, as an objective matter, there would have
been no seeming basis for Damron to have demanded to know
“who the hell do you think you are, bringing anyone into these
meetings” of Florian. Moreover, Florian’s testimony about the
“started to kind of approach me” becomes untenable in view of
Robinson’s testimony about what had occurred after he arrived
for the meeting.
As already pointed out, Robinson appeared favorably dis-
posed toward Florian’s situation, and not particularly happy
with Damron; on the other hand, for the most part Robinson did
not seem disposed to allow those feelings to influence his basic
candor while testifying. Contrary to Florian’s above-quoted
testimony that Damron began yelling after Florian “waived
[Robinson] in,” Robinson testified, “when I walked in I guess
Damron and Chester was [sic] arguing.” No question Robinson
was testifying that an argument between Damron and Florian
had already been in progress when he arrived in the room.
“Yeah,” answered Robinson to a specific question put to him
during direct examination, an argument had been going on
between Florian and Damron when he (Robinson) had walked
into the meeting. Thus, according to Robinson, that argument
had not been provoked by Florian having “waived [Robinson]
in,” as Florian attempted to portray.
The substance of that argument, moreover, was not about
Florian “bringing anyone in these meetings,” according to Rob-
inson. Rather, he testified, “Chester wanted his, he wanted the
guy who was handling it in there,” and “Rich, I guess more or
less said they couldn’t get me off the line, but they couldn’t get
me off the line,” and, in any event, “he was the chairman and
[Florian] don’t [sic] tell him how to run the meeting, more or
less.” In short, contrary to Florian’s account, according to Rob-
inson the argument was not over Florian somehow having
brought “anybody into these meetings,” but was over Damron’s
asserted failure to have Robinson present during the meeting.
That was not the biggest contrast between the accounts of
Florian and Robinson.
Robinson testified that Pasnick “was trying to get Chester
and Rich calmed down,” by “talking to Rich and then he more
or less talked to Chester so he could get the meeting going
again. That’s more or less what happened.” Well, what about
Damron’s supposed “jump[ing] out of his chair” and “start[ing]
to kind of approach” Florian, presumably bent on some sort of
violence, but having been stopped when Pasnick “stuck his arm
out”? Never happened, according to Robinson.
During direct examination Robinson was asked whether Pas-
nick had physically restrained Damron by extending his arm to
keep Damron behind him. Robinson answered, “Well, I think
he stood up more or less. I don’t think he had to. If I recall, I
don’t think he had to restrain him. No, he more or less talked
to him.” Apparently having heard from Rolfe—not from
White—about the earlier altercation during White’s meeting,
Florian simply attempted to enhance his own case, through an
effort to portray a somewhat similar incident when he had sup-
posedly almost been attacked by Damron, who was stopped
from doing so by Pasnick.
Turning more directly to the above-mentioned second aspect
of Florian’s account of the meeting, Florian testified that, after
Respondent-Employer’s officials had left the room, he told
Pasnick, “I had done nothing wrong. I had asked him if he
would please present my case with no suspension whatsoever
and complete backpay.” Pressed further during cross-
examination about what he had said to Pasnick, Florian added
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1236
that he also “had asked him for some kind of a letter or what-
ever from the company stating that I had done nothing wrong.”
“That’s true,” answered Florian, he had wanted a letter of apol-
ogy from Respondent-Employer. To perhaps no one’s great
surprise, Pasnick rejected those conditions. “At that time he
[Pasnick] continued on the same way, asked Mr. Boyle to take
into consideration to give me a suspension, disciplinary suspen-
sion and back pay,” testified Florian, the amount of which
would be determined afterward. According to Florian, “That’s
the way the meeting ended.”
Pasnick agreed that Florian had requested an apology letter,
though Pasnick placed that request as having been made by
Florian during their above-mentioned conversation before the
grievance meeting: “Mr. Florian felt that he was being singled
out. That was, like a personal vendetta against him. That he
wanted an apology from the company and, as well as, you
know, reinstatement with full back pay.” Pasnick testified that
he told Florian,

I thought that was a little unreasonable given the fact that he
knew there was a rule and he knew that, I mean, you know, he
violated the rule. Admittedly violated the rule. There was no
question about that. To say to the company, we want you to
apologize for any enforcement of the rule, I felt, was a little
bit beyond the realm of reasonableness in trying to resolve the
case[.]

Given the considerations enumerated in preceding subsections,
it is not possible to argue with Pasnick’s logic. Surely, in the
totality of the circumstances, Pasnick’s position cannot be char-
acterized as some sort of unlawful failure to fairly represent
Florian.
A final point to be made about the September 1 meeting con-
cerning Florian’s grievance involves the arguments advanced
by Pasnick on behalf of Florian. Pasnick testified that “we
made the argument that people had driven around in the past.
And that this was a common practice out there.” Florian agreed
that Pasnick had argued that nobody had ever been discharged
or disciplined for doing what Florian had done on August 3:
“Yes, that nobody has been either suspended or terminated for
it.” “He had asked the company to bring me back,” Florian
also agreed. Florian never disputed Pasnick’s testimony that, in
response to Pasnick’s arguments, “the company’s comment to
that was, yeah, we know, but that’s why we reinstated the rule
and that’s why we reposted the rule and told the committee and
told people out in the shop about the rule.” Indeed, one of
those “people out in the shop” who had been told specifically
was Florian—by Moore, as set forth in subsection G above, it is
uncontested.
Pasnick did make one gain, it is uncontroverted, on behalf of
Florian and White during the September 1 meetings. As de-
scribed in subsections H and I above, the termination notices
for both employees had listed violation of work rule 10 as one
reason for termination. That was discussed on September 1,
testified Pasnick, and “they finally admitted that there really
wasn’t a basis for the violation of Rule 10,” Boyle’s pique at
Florian, for not having punched out as directed on August 3, to
the contrary notwithstanding. Consequently, the reason for the
suspensions and discharges was reduced to violation of work
rule 11. That may not seem like a terribly significant victory
for Pasnick, at first thought. But Steelworkers continued to
process Florian’s and White’s grievances until a settlement of
both was ultimately reached. White accepted it; Florian did
not. Nonetheless, those ultimate resolutions were inherently
facilitated by a reduction in the number of work rules assertedly
violated by Florian and White. Ability to eventually settle or
prevail during arbitration is naturally furthered by discipline
based upon one, rather than two, work rule violation.
Turning back to the events of September 1, as set forth above
Rolfe testified that he had come to Respondent-Employer’s
Chicago facility to bring some bills to Abbott and, also, to
speak with Langele. He further testified that he had been wait-
ing in the reception area when White came out of his third-step
grievance meeting and, as White was leaving, that Florian had
arrived, as also set forth above. Pasnick testified that he had
gone outside, apparently for a break, after White’s meeting and
there encountered Rolfe. According to Pasnick, Rolfe “ap-
proached me and said that he had a grievance. He wanted to
talk to me about it. He wanted to have it out. That he was
going to lose his seniority and that he wanted to speak to me. It
was important he talk to me.” Pasnick testified that, “I told him
that he’s not on the agenda for today. But, that when we’re
done with the three grievance cases that we have on the agenda,
I’d be happy to sit down and talk with him about his problems.”
Rolfe then waited for Florian’s meeting to end.
Rolfe made another seeming effort to fortify his and
Florian’s cases against Respondents, in this instance by giving
testimony about a purported event which assertedly occurred
following Florian’s grievance meeting. He claimed that, upon
leaving the meeting room, “Chester said they were through
with him, let’s go get a cup of coffee,” and the two of them
started walking from the reception area to the coffee area of the
Chicago facility’s main building. As they were walking there,
testified Rolfe, Boyle and Damron “were standing right by,
near the entrance to the coffee area.” According to Rolfe, “as
we walked by Mr. Damron said there goes a fine pair of fat f--k
Union brothers,” after which he and Boyle “chuckled over”
what Damron had said. When they went into the coffee area,
Rolfe further testified, he asked if Florian had heard Damron’s
remark and Florian “said, yes, that’s what they said,” and “we
talked about it a little bit. Rolfe never explained what had been
said during that “little bit” of talk. More significantly, Florian
did not corroborate any aspect of Rolfe’s testimony about that
supposed incident.
Damron denied ever having described Florian and Rolfe to
Boyle as “far [sic] f--k Union brothers,” and, further, denied
having ever, including on September 1, stated to Boyle “there
goes a fine pair of fat Union brothers when Florian and Rolfe
walked by[.]” Boyle denied ever having heard Damron de-
scribe Florian and Rolfe “as a fine pair of fat f--k Union broth-
ers.” As pointed out above, Florian never corroborated Rolfe’s
testimony about Damron having made such a derogatory re-
mark to Boyle, as Florian and Rolfe had walked to the coffee
area on September 1. Indeed, Florian never claimed that such a
remark had been made by Damron on any occasion as Florian
and Rolfe were walking by.
PRECOAT METALS 1237
There is no dispute about the fact that Rolfe did engage in a
conversation with Pasnick on September 1, though Rolfe ini-
tially placed their conversation as having occurred on Septem-
ber 2. Asked what had been said, Rolfe testified during direct
examination that he had wanted “to find out about things that I
had coming,” and “had also wanted to talk to him [Pasnick]
about the three people that were recalled and two sent home.”
According to Rolfe, “I questioned Mr. Pasnak [sic] on the con-
tract,” but, “He said there’s nothing I can do,” even though
Rolfe assertedly “pointed a few things in the contract to him.”
Rolfe testified that Pasnick had “said I wrote the contract, I’ll
interpret it. You have no case for grievance.” Pressed by fur-
ther examination, Rolfe essentially repeated the foregoing tes-
timony: “I showed him two or three different paragraphs in the
contract. He said I don’t interpret it that way.” Rolfe further
testified that, at that point during his conversation with Pasnick,
he had been talking about, “My recall and parts in the contract I
thought that concerned me.”
Rolfe never did identify which specific “paragraphs in the
contract” or “parts in the contract” he had assertedly pointed
out to Pasnick. It is true that article VII of that 1995–1999
contract provides for report pay and, in addition, article VIII
covers call-in. If those had been the paragraphs pointed out to
Pasnick by Rolfe, the report pay article applies to “[a]n em-
ployee who reports for work at the start of his scheduled shift,”
and, further, specifies, “Employees who report and are directed
to wait for a decision concerning operations will be paid for
waiting.” Article VIII specifies that, “A ‘call-in’ occurs when
an employee who has left work is notified to return to work
outside of his shift,” which, of course, was not applicable to
two probationary employees newly recalled from layoff, as
opposed to being recalled after having completed a shift. Fur-
thermore, whatever support for Rolfe’s position would ordinar-
ily be provided by article VII is dissipated by article IX’s bar
against proceeding to contractual disputes resolution on behalf
of probationary employees, as pointed out in subsection K
above.
Rolfe continued his direct examination testimony about his
conversation with Pasnick by introducing an entirely different
asserted grievance subject. He testified that he had told Pasnick
“that I was working 12 hours a day. That when I was laid off
they did not give me 12 hours pay a day. They gave me pay for
two holidays instead of, and eight hours, instead of 12 hours.”
As will be seen, he eventually would change that complaint. At
this point, the important consideration is that, so far as the evi-
dence discloses, Rolfe had never mentioned that asserted prob-
lem to any of Respondent-Union’s officers. And Rolfe ac-
knowledged, during direct examination, that Pasnick responded
appropriately to the complaint: “He said indeed you do have 12
hours pay coming for each one of these days. File a grievance
with Mr. Langele.” Still, Rolfe was not satisfied. “I said
there’s nothing else you can do for me?” testified Rolfe, and
Pasnick answered, “no, there’s nothing else at all I can do,” to
which Rolfe retorted, “well, you leave me no choice. I’m going
to the NLRB over this.”
It should not escape notice that to that point during direct ex-
amination, Rolfe did not advance any testimony about having
related to Pasnick any statements purportedly made by Abbott.
That subject was suggested to Rolfe who then testified that he
also had told Pasnick, “That Mary Abbott tried to bargain my
job for my hands.” But, at that point, Rolfe gave no testimony
about what, if anything, Pasnick had responded.
During cross-examination, however, Rolfe was asked if it
was not “a fact that Mr. Pasnak [sic] told you that if that was
the company’s position, you should discuss it with your
worker’s compensation lawyer because it was against the law?”
“Yes, he could have said that,” Rolfe allowed somewhat grudg-
ingly. “Could have. Could have said that, yes,” conceded
Rolfe when asked if Pasnick “advised you to go, because if
they were not calling you back to work because of your injury,
that your worker’s compensation lawyer can help, didn’t he tell
you that?” “Correct,” admitted Rolfe, when asked whether
Pasnick had suggested “talk[ing] to your lawyer [about Ab-
bott’s supposed remarks] because it was against Illinois law,
isn’t it? Didn’t he?”
As pointed out in subsection D above, it seems undisputed
that Steelworkers does not handle workers compensation claims
for employees. Given that seemingly undisputed fact, and the
further fact that by September Rolfe already had filed a workers
compensation case, it seems difficult to argue persuasively that
Pasnick somehow had failed to fairly represent Rolfe by telling
him to bring whatever comments Abbott may have made to the
attention of his workers compensation attorney. Nonetheless,
some effort was made to show that Pasnick had failed to pro-
vide fair representation to Rolfe, by virtue of that response.
Pasnick was cross-examined about the fair employment prac-
tices provision in article IV of the 1995–1999 collective-
bargaining contract:

The employer and the Union each agree that there shall be no
discrimination by either party against or on behalf of any ap-
plicant or employee because of race, creed, religion, color,
sex, age, national origin, disability or veteran status or any
other category protected by federal, state or local laws. The
Union or an employee may file grievance alleging a violation
of this Article. In addition, the resolution of any claim of dis-
crimination prohibited by law shall be through the grievance
and arbitration procedures provided in this Agreement.

“Possibly yes,” acknowledged Pasnick, it would be a violation
of state law if Respondent-Employer had not recalled Rolfe
because of his workers compensation claim.
The problem with such a grievance, of course, is that, regard-
less of what Abbott may have said to Rolfe—and there seemed
some basis for inferring that Pasnick did not altogether trust
what he was being told by Rolfe—Rolfe admittedly had not
been qualified for recall during 1998. His doctor had restricted
him to light-duty assignment. There is no evidence that Re-
spondent-Employer had other than full-duty work available
before, at least, late 1998. Beyond that, Rolfe never divulged
whether or not he had followed Pasnick’s suggestion—whether
he had or had not brought Abbott’s purported comments to the
attention of his workers compensation attorney. What is clear
is that Rolfe never again approached Steelworkers about filing
a grievance regarding Abbott’s purported comments. Appar-
ently, he either chose to ignore Pasnick’s suggestion or, if he
did follow it, his workers compensation attorney never sug-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1238
gested that Rolfe attempt to file a grievance concerning Ab-
bott’s supposed remarks.
As to Rolfe’s recall argument, Pasnick seems to have under-
stood what Rolfe was arguing. For, Pasnick testified, “Kenny’s
theory went like this. That these people, the two junior people
who reported should have received call-in pay. . . And if they
got four hours call-in pay, then he should get four hours call-in
pay because he was senior to them and he wasn’t one of the two
people brought in. Therefore, he had a loss and should be paid
that four hours pay,” which would, in turn, restart his 6-month
eligibility period for recall. Of course, article IX of the contract
posed a threshold problem for grieving about call-in pay, as
well as for any argument about report pay, for two concededly
probationary employees.
Even if Steelworkers could have overcome that threshold
contractual hurdle, moreover, it would have confronted the
insurmountable barrier that Rolfe had not been qualified during
August to perform the full-duty work, so far as the evidence
shows, which McFadden and Wright had been recalled to per-
form. Beyond that, Pasnick testified that, as of September 1, he
had only recently lost when advancing such a, in effect, falling-
domino theory during arbitration: “Where one thing is contin-
gent on two or three other things. And, essentially, the arbitra-
tor kind of said, you can’t parlay these kind of grievances to
achieve that end.” Pasnick acknowledged that different arbitra-
tors can render contrary decisions. But, the statutory duty of
fair representation does not require labor organizations to keep
sorting through arbitrators until possibly one is reached who
might agree with an already-rejected argument, particularly
where rejection is based upon seemingly logical rationale.
Importantly, Rolfe admitted never even attempted to file a
grievance over his nonrecall on August 10. He claimed that he
had not done so because no one from Respondent-Union nor
Steelworkers had expressed any sympathy with his argument.
On the other hand, it is a good question whether, in fact, Rolfe
had actually realized there was no basis for such a grievance
and simply chose to pursue a course of joining forces with
Florian and attempting to gain a backpay award through the
Board, rather than attempting to file a grievance. In that re-
spect, it should not be overlooked that the Board expects parties
to make some efforts to pursue their statutory rights, and dem-
onstrate that those rights will actually be denied by respon-
dents, before concluding that violations of the Act have oc-
curred. See, e.g, Iron Workers Local 433 (Riverside Steel Con-
struction), 169 NLRB 667 (1968).
In fact, Steelworkers did accept Rolfe’s grievance concern-
ing the two supposed lost days’ pay, although his actual prob-
lem turned out to be one differing from his above-quoted de-
scription to Pasnick. On September 8 Rolfe filed a grievance
seeking 16 hours pay for 2 “holiday days.” On the following
day he filed a corrected grievance “for two (2) unused personal
days based on a 12 hour work day.” Rolfe testified that he had
gone to Steelworkers’ facility on Harlem Avenue where he
talked to a “lady” and “gave her everything that Mr. Pasnick
had said to do,” but that Langele later called and “said he was
turning down my grievance down [sic] because it had no foun-
dation.” That appears to have been a correct assessment of
those grievances.
According to article XVI of the 1995–1998 collective-
bargaining contract, “Two personal days” are “considered an-
nual holidays.” Under Section 3(b) of that article, to qualify for
a holiday, “The employee [must be] actively employed,” and,
under Section 3(c), must have “worked all of his regularly
scheduled hours on his last scheduled workday prior to and on
his next scheduled workday immediately following the holi-
day.” Moreover, section 1 of article XVI provides that, “Pre-
ferred dates for the Personal Holidays must be selected by the
individual employee at least fourteen (14) days in advance,”
unless Respondent-Employer “waives such requirement.”
There is no evidence that, before his March layoff, Rolfe had
scheduled personal days. Obviously, he had not been working
thereafter and, accordingly, he had no “scheduled workday” to
which a personal day could have been pegged.
The fact is, however, that apparently Steelworkers did suc-
ceed in obtaining some pay for Rolfe, as he eventually admit-
ted. During cross-examination he agreed that on September 10,
“I got in the mail” payment for 16 hours. Still he was not satis-
fied. He testified that he felt that he was entitled to “14 hours
pay for each day,” and had complained to Mahoney about not
receiving pay for that number of hours: “I said, come on, Dan,
you know that isn’t right,” but Mahoney merely replied, “well,
that’s what I was told to give you.” Langele explained that, at
the time, Rolfe had been “arguing for an additional eight hours
pay”—payment based upon 12-hour, not 14-hour, days: “They
paid him for sixteen. He was looking for twenty-four.” At that
point, testified Langele, “I withdrew it from the procedure be-
cause it didn’t have any merit to go any further.” There is no
allegation that Steelworkers should have followed any other
course.
In sum, the credible evidence does not support the allegation
that Respondent-Union had unlawfully failed to fairly represent
Rolfe “concerning recall rights.” He was restricted by his doc-
tor to light-duty work. He was told that no light-duty work
existed at Respondent-Employer. No evidence has been pre-
sented to refute what Rolfe was told. So far as the evidence
shows, anyone summoned for recall was, or was going to be,
assigned full-duty work. Damron prevented Respondent-
Employer from recalling probationary employees on August
10, before recalling all laid-off employees who had completed
their probationary periods. Steelworkers suggested to Rolfe a
plausible course to pursue had Abbott, in fact, made the re-
marks which Rolfe claims that she made and, further, had Re-
spondent-Employer truly not been recalling Rolfe because of
his workers compensation claim, an assertion which is sup-
ported by not one scrap of evidence and, conversely, tends to be
refuted by the fact that Rolfe had not been qualified to perform
any of the work then available at Respondent-Employer’s Chi-
cago facility.
Phillips made a final effort to fire a shot across Respondent-
Union’s bow during early September. He testified that, on
September 4, Morales “had pulled me to the side,” and had
“said, listen, bro . . . I don’t know what you have against me but
. . . I just want to let you know that they’re out to get you and
that’s why they’re putting this new work rule about leaving
your work station.” According to Phillips, when he asked
“who’s they,” and asked did Morales mean “Rich and your
PRECOAT METALS 1239
buddy Manny,” Morales answered, “bro, I can tell you it’s not
Manny. . . . It ain’t Manny, bro.”
Morales denied having told Phillips, “Listen Bro, I don’t
know what you have against me, but I just want to let you know
that they’re out to get you.” “No. I never spoke to Mr. Tom
Phillips regarding,” testified Morales, putting a work rule in
about leaving workstations. “Never,” denied Morales, had he
ever told Phillips that he should maybe watch out or be careful
because of the rules. “I didn’t tell him nothing about regarding
Mr. Rich Damron,” either, Morales testified.
The testimony by Phillips about the purported September 4
conversation is reminiscent of the supposed warning by Robin-
son discussed in subsection E above. No greater reliability can
be accorded to the purported September 4 remarks by Morales.
In his prehearing affidavit, Phillips stated, “I told Morales that
Damron and Escobedo were dirty with all the crap they pulled
with Chester”; even the General Counsel conceded that there
had been no mention during direct examination by Phillips that
he had told Morales that Damron and Escobedo were “dirty
with all the crap they pulled.” Asked to explain that omission,
Phillips gave an answer which appears to have been a reflection
of his general attitude concerning how he testified: “there’s no
particular reason. And, if [sic] fact, if I could put it in now I
would say that. I feel that there is a lot of dirty crap going on
there.” In short, he felt free to put into words whatever Phillips
happened to feel. In the end, it appeared that Phillips simply
had been unable to remember everything that he had claimed
when he gave his affidavit, because when he gave that affidavit,
he had “put” in whatever he felt, regardless of what had actu-
ally been said and done, and lost track of everything he earlier
had said when tailoring his accounts to suit his own ends.
Beyond that, given the evidence already reviewed, there
seems no basis for Morales to have believed that Respondent-
Employer would have gone to the trouble of “putting” in a
“new work rule” for no reason other than to “get” Phillips.
Certainly there is no evidence that, as of September 4, Respon-
dent-Employer had actually done so as a vehicle for catching
Phillips “leaving [his] work station.” Even if it had done so,
Robinson at least seemed to feel that Phillips had been exces-
sively wandering from his workstation, as mentioned in subsec-
tion E above. Certainly had Respondent-Employer shared that
perception, the Act does not bar an employer from imposing a
rule to prohibit excessive wandering by an employee who
should be working. Furthermore, there is no credible nor ob-
jective evidence that Respondent-Union, specifically Damron,
would have been disposed to prevail upon Respondent-
Employer to impose a new work rule for no reason other than
to “get” Phillips. Nor is there credible or objective evidence
showing that, had Damron done so, Respondent-Employer
would have been disposed to comply with such a request. As
discussed in the beginning of the immediately following sub-
section, Boyle appears to have been satisfied with the work
performance of Phillips.
M. Termination of Focht on November 3
Described in subsection J above was Focht’s appointment
during August to the newly-created position of business man-
ager for Respondent-Employer’s northern region facilities at
Chicago and Portage. In that position, Focht no longer reported
to Boyle, but instead reported directly to Regional Manager
Drufke who, in turn, reported directly to vice president of
Manufacturing Kramer.
The General Counsel points to three post-August events in-
volving Focht—putting him on paid leave on September 14,
offering him a last chance agreement on October 28 and termi-
nating him on November 4—as evidence that Respondent-
Employer discharged Focht for giving testimony to the Board
in the form of an affidavit. As discussed in subsection J above,
Focht had gone with Florian and Rolfe to the Board’s Chicago
Regional Office on August 31 and, there, had given an affidavit
in support of Florian’s charges. While Drufke was then Focht’s
immediate supervisor, it had been Kramer who made the deci-
sions which led to each of the three foregoing personnel actions
involving Focht. Thus, while Focht was generally an unreliable
witness, it is on Kramer’s testimony that attention must focus in
this subsection. For, when evaluating allegations of discrimina-
tion, whether under Section 8(a)(3) or under Section 8(a)(4) of
the Act, “at issue is the actual motivation of the official or offi-
cials who made the decision to take an allegedly unlawful ac-
tion.” (Citation omitted.) Clinton Electronics Corp., 332
NLRB 479, 496 (2000). As discussed below, Kramer’s testi-
mony regarding his motivation for those three personnel actions
was no more reliable than that of Focht.
Before addressing that situation, however, testimony about
two, as it turns out, periphery subjects needs to be discussed, if
for no better reason that to dispose of them. First, by August
Boyle had heard about the supposed lists—sometimes color-
fully characterized as “hit lists”—which he had supposedly
brought with him to the Chicago facility, as discussed in sub-
section E above. As mentioned below, eventually Boyle
learned that there were rumors in the facility about such a list
and that the names of Crylen and Phillips were on it. Anxious
to allay any concerns by those two employees, Boyle acknowl-
edged that he had spoken to each one about lists. “What I
wanted to do,” Boyle testified, “was I didn’t want employees
thinking that they were on some sort of list for termination.”
According to Boyle, he telephoned Crylen and “asked him if
he’d been informed that he was on a list for termination,” and
when Crylen replied that he had heard that, “I apologized on
behalf of the Company and told him it wasn’t true and that he’d
basically be judge[d] on his work performance.” Crylen’s tes-
timony about that conversation was not significantly different
from that of Boyle. “He wanted to know, wanted me to know
that there was no conspiracy going on,” Crylen testified that
Boyle had said.
Crylen, of course, had been one of the dissidents who had at-
tempted to run for unit office during early 1997, as described in
subsection B above. Another had been Phillips. Boyle testified
that he had Phillips summoned to an office. “He wanted to
know that if he had to have Union representation,” testified
Boyle, and Boyle asked, “did you do anything wrong?” to
which Phillips replied in the negative and Boyle said, “I guess
you don’t need Union representation.” Then, according to
Boyle, “I asked Mr. Phillips if he’d been told that he was put on
any sort of list. He told me that he had. I asked him who told
him that. He told me Jack Focht. And then I again apologized
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1240
on behalf of the Company and I told him there wasn’t any truth
to it. And he’d basically be judged on his own performance.
He didn’t do anything wrong, nothing would happen to him.”
It should not be overlooked that Boyle’s testimony about
what he had said to Phillips is essentially consistent with his
uncontradicted, and essentially corroborated, description of
what he (Boyle) had said to Crylen. Yet, once more, Phillips
used an acknowledged conversation as a launching pad to por-
tray an agent of one of Respondents in an adverse light.
Phillips did agree that he had asked whether he needed union
representation and that Boyle had responded that Phillips did
not because he was “not in any kind of trouble.” According to
Phillips, Boyle then “said . . . I don’t know what you’ve been
hearing out there,” to which Phillips replied “this list thing,”
which led Boyle to say, “I don’t know why you would think
you’re in any kind of trouble, why I would have anything
against you because, you know, you’re here. You come to
work. You do your job and that’s, that’s good enough for me.”
During cross-examination Phillips added that Boyle had “said
that it’s not his list”—“that he had heard about a list and that
it’s not his list” and “that he wasn’t out to get anyone in par-
ticular, someone like you, who comes to work and does their
job, I believe was something around what he said.” Of course,
that account pretty much corroborates the above-quoted testi-
mony by Boyle and, moreover, is essentially consistent with
what Crylen and Boyle testified had been said during their tele-
phone conversation. But, Phillips claimed that more had been
said during his conversation with Boyle.
Phillips testified that Boyle had “said, the only then[sic],
that, the only list that he knew about was Jack’s list. And he
went on to say that Jack wanted me fired and that Jack had
wanted Chester fired. And he said that he [sic] was Jack’s list
and that he had a copy.” Initially Phillips testified that “I re-
marked, you know, I’ve kind of been surprised by him saying it
was Jack’s list.” Immediately after that, Phillips testified that
he had said, “I didn’t believe it,” But, he immediately retracted
the foregoing testimony about his purported response, by testi-
fying, “I didn’t believe, I actually, I didn’t say anything. I kind
of sat back.” Phillips then claimed that Boyle “told me, he said,
by the way, he says, I don’t [know] if you’ve heard that Jack’s
gone, Jack’s out of here. He’s fired.” After that, according to
Phillips, the conversation turned to Florian, though Boyle con-
tinued to make some further remarks about Focht.
“I told him, I said, well, I think that, you know, you guys lost
a lot of respect from the guys out there as far as the manage-
ment wise when you guys fired Chester. I think Chester got a
raw deal,” Phillips testified, to which Boyle “said, since I’ve
worked for Sequa I’ve never seen somebody with a work re-
cord like Chester’s. He said, you know, for this guy to be
working here for this long there had to be some kind of favorit-
ism going on between him and Jack Focht.” Then, testified
Phillips, Boyle “said, you know what? He says, I got nothing
against the guy. He said, if he was here now, I’d kiss his big fat
ass because he just did me the biggest favor and not even
known it.” Phillips testified that he asked, “what the favor
was,” to which Boyle “remarked that it was Chester who in a
round about way got him Jack Focht,” because Boyle “was
wondering who it was on his team that, that was working
against him. And he now knows it was Jack Focht,” adding
“that Jack Focht and Chester Florian don’t know where the
game’s being played. That they screwed up.”
The foregoing account did not conclude Phillips’s testimony
about supposed remarks by Boyle about Focht. According to
Phillips, after saying that Focht and Florian did not know where
the game was being played, Boyle “explained that him and Jack
go back a long way. It was kind of a blood feud, in his words,
it was a blood feud between him and Jack. That he worked
with Jack when Jack was down in St. Louis and that Jack had
worked with his father before.” After that, Phillips testified,
Boyle “said that when he came up to Chicago, that Boyle felt
that when he gave Jack a job he put him over the rewinder and
took him off the production line,” and, “I gave him a good job,
all he had to do was go over there, do his job and keep his
mouth shut. And he couldn’t do that.” But Boyle was not yet
through, according to Phillips.
“I brought up Ken Rolfe at first,” testified Phillips, by saying
“since we’re all being honest with each other,” that “he lost a
damn good worker when he didn’t call back Kenny Rolfe,”
because “at one time Kenny Rolfe during his work day got cut
real bad, received 22 stitches in his arm. When he got cut, he
left, went, got 22 stitches in his arm, came out and finished out
his shift.” To that, according to Phillips, “Jim Boyle stated that
Ken Rolfe had basically shot himself in the foot,” because “it
was real stupid for him to come after the company for his
hands, for his injured hands,” adding “that Ken Rolfe had been
harassing the personnel director by calling up and asking him
[sic] when he could return to work. And he said he was con-
tinuously calling up and asked when he could return to work.”
Later Phillips added “that Kenny Rolfe probably would have
been recalled except he keeps calling up the Personnel Director
and harassing her about when he can return to work.”
Boyle denied at least most of those remarks attributed to him
by Phillips. He testified that Phillips had said during the con-
versation that “he wanted to know about three friends of his,”
and named “Chester Florian and Kenny Rolfe and Dave
Duanes,” the latter of whom had “some type of attendance
problem,” perhaps arising from “a serious automobile acci-
dent.” Boyle further testified, “I told him I couldn’t talk about
the cases of Kenny Rolfe or Chester Florian,” and, “I don’t
really know for certain what’s going on with Mr. Duanes.” As
an objective matter, if nothing else, Boyle’s testimony about
what had been said during this conversation seems more reli-
able that the account advanced by Phillips.
Phillips admitted that, “I never really had any contact with
Mr. Boyle. We never spoke,” prior to the above-described
conversation, but, “the only time we really ever spoke was that
time in the meeting that he had with you [sic].” No question
that Phillips was testifying that he had only minimal or passing
contact with Boyle prior to then: “Looking back into my mem-
ory, anything of any significance, aside from just talking to him
about the way the line was running or something for that day,
no, we did not talk that much. Him and I, if we walked by and
said hello to each other, it would be a rare thing.” In other
words, by his above-quoted testimony, Phillips would have it
believed that, during a conversation with a virtually unknown
employee, Boyle had completely let down his hair and bared
PRECOAT METALS 1241
his soul by making a series of comments about three employ-
ees, at least one of whom had unfair labor practice charges
pending against Respondent-Employer regarding the very dis-
charge which Boyle supposedly was discussing with that virtu-
ally unknown employee.
Especially given Boyle’s no-nonsense appearance when tes-
tifying, that scenario by Phillips seems as unreal as was White’s
assertions about remarks purportedly made by Boyle at the
Illinois Bar and Grill, discussed in subsection I above. Such a
course would have been inherently reckless, given the circum-
stance surrounding Boyle’s conversation with Phillips. All else
aside, Boyle did not appear to be a reckless individual—one
possessing all the self-preservation instincts of a lemming.
As described during the course of discussion in some preced-
ing subsections, Phillips demonstrated that his testimony was
not reliable—that he had axes of his own to grind and, con-
versely, that he had been aligned since at least early 1997 with
Florian. In turn, Florian and Focht had been closely aligned
since at least as early as then, with Focht having favored
Florian’s effort to oust Damron as unit chairman, discussed in
subsection C above. Of course, as acknowledged in the com-
plaint, Rolfe had come into “affiliation with Florian,” as August
progressed. In the end, Phillips’s testimony about Boyle’s sup-
posed statements, during the meeting about a list, appeared to
be no more than another effort by Phillips to aid Florian, Focht
and Rolfe—as White had tried to aid Florian, as well as him-
self, by his testimony concerning the Illinois Bar and Grill
meeting—and, as well, to disadvantage Respondent-Employer,
by fabricating an account which portrayed Boyle in a most
disadvantageous light.
Beyond that, very little of the remarks attributed to Boyle by
Phillips truly aid the complaint’s allegations. Allegedly Re-
spondent-Union had caused Respondent-Employer to suspend
and discharge Florian. But, had Boyle come to the Chicago
facility with an already-prepared list of employees to be gotten
rid of, and had Florian been on that list, then it hardly can be
said that Florian’s suspension and discharge had been the result
of some sort of causation by Respondent-Union. In fact, com-
ing to Chicago with an already-prepared list would have been
an event tending to refute any motivation unlawful under the
Act for Florian’s suspension and discharge. Similarly, had
Boyle truly not recalled Rolfe because the latter was “harass-
ing” Abbott, that hardly shows improper motivation.
True, some evidence of unlawful motivation might tend to be
shown by Boyle’s remarks about Focht, as portrayed by Phil-
lips. The problem with relying on the testimony given by Phil-
lips about those remarks is, as pointed out above, that it had
been Kramer, not Boyle, who had made the decisions regarding
Focht. As discussed below, there is no evidence whatsoever
that Boyle had been consulted or had any input regarding those
decisions by Kramer. Indeed, once Focht had become business
manager, he no longer was under Boyle’s supervision; he was
supervised directly by Drufke. Given those circumstances, it
hardly seems plausible to believe that Boyle would have been
blabbing to a virtually unknown employee about having gotten
rid of Focht.
The second, as it turns out, periphery subject concerns
Focht’s unsatisfactory performance as business manager. That
performance turned out to have been quite shabby. Perhaps
motivated by his admitted dissatisfaction at being removed as
Chicago production manager, Focht engaged in a series of acts
that bred ongoing complaints about him by Chicago supervisors
and other personnel. There can be no question about those
complaints having been made. Various witnesses described
what Focht had done; their testimony was never contradicted,
though witnesses were called during rebuttal.
In fact, rebuttal witness Drufke, clearly sympathetic toward
Focht—indeed, who hired Focht at the employer for whom
Drufke went to work after having left employment with Re-
spondent-Employer—acknowledged that he had received com-
plaints from Chicago personnel about Focht’s performance
while business manager. Drufke identified some of those com-
plainants as Boyle, Robert Buntin and Elizabeth “Lisa” Karpiel,
each of whom did testify to unsatisfactory conduct by Focht.
Drufke agreed that “there was [sic] a lot of complaints” about
Focht.
Litigated at some length was a series of memoranda, one by
Boyle, all of which are dated September 9 and all of which
Boyle testified that he had submitted to Drufke. Drufke denied
having received or, even, seen them during the remainder of his
employment with Respondent-Employer. The candor of his
denial is diminished somewhat by Drufke’s admission of the
numerous verbal complaints about Focht which he had re-
ceived. After all, people had been willing to complain verbally
to Drufke about Focht. Accordingly, there seems no basis for
concluding that any of them would have been unwilling to re-
duce those verbal complaints to writing. In the final analysis,
however, all of the evidence about Focht’s unsatisfactory per-
formance as business manager, and complaints about that per-
formance, amounts to no more than a collateral subject.
Vice-President of Manufacturing Kramer testified that he
had made all of the decisions which led to the three above-
listed actions concerning Focht, albeit for two in consultation
with Director of Human Resource John Christopher following
the latter’s return to employment with Respondent-Employer
on October 12. Kramer never claimed that he had made any of
those decisions as a result of consultation with Boyle or Drufke.
More importantly, neither Kramer nor John Christopher
claimed that any decision concerning Focht had been based
upon the latter’s job performance as business manager, nor
upon any reports of unsatisfactory performance or misperfor-
mance by Focht. Instead, the below-described offer of a last
chance agreement to Focht and his ensuing discharge were
portrayed by Kramer and John Christopher as no more than an
outgrowth of Kramer’s spring decision to transfer Focht from
Chicago or fire him, as described in subsection D above, be-
cause of the discriminatory hiring revealed by OFCCP’s audit.
For his part, Drufke never testified that he had ever relayed
to Kramer or John Christopher any of the complaints made to
him (Drufke) about Focht. Beyond that, had Kramer been
aware that Focht was performing so shabbily as business man-
ager, it seems unlikely that he would have offered Focht a
transfer to Respondent-Employer’s Jackson facility. Like
Boyle, Kramer impressed me as a no-nonsense person. It is
difficult to believe that he would have employed Focht any-
where, had he actually known the problems caused by Focht.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1242
Given his sympathy for Focht, there is some basis for inferring
that Drufke may have simply desk-drawered the September 9
memoranda.
Therefore, the complaints about Focht’s misperformance-
performance, while real, have not been shown by Respondent-
Employer, specifically Kramer and John Christopher, to have
been actual considerations when offering Focht a last chance
agreement, nor when earlier putting Focht on paid leave. Ab-
sent such evidence, the complaints about Focht can be regarded
as nothing more than what is categorized as “after-acquired
evidence of wrongdoing,” McKennon v. Nashville Banner Pub.
Co., 513 U.S. 352, 356 (1995), and such evidence cannot be
regarded as a moving cause for discipline imposed and alleged
to have been unlawfully motivated. See, Handicabs, Inc., 318
NLRB 890, 894 (1995), and cases cited therein, and Multi-Ad
Services, 331 NLRB 1226, 1239–1240 (2000), and cases cited
therein. So far as the Respondent-Employer’s evidence shows,
Focht’s performance as business manager had not been a factor
in Kramer’s decisions regarding Focht.
On August 31 Focht accompanied Florian and Rolfe to the
Board’s Chicago Regional Office where Focht gave an affidavit
in support of Florian’s unfair labor practice charges. Then, on
September 11 he had a meeting with Drufke and Boyle. All
three gave testimony about what had been said during that
meeting. As already pointed out, Focht’s testimony was not
reliable and, accordingly, little is to be gained from recounting
what he testified had been said during that meeting. Moreover,
Drufke’s and, particularly, Boyle’s testimony contain admis-
sions from which it can be concluded that Respondent-
Employer learned during the meeting that Focht had began
working with Florian’s attorney and, specifically, had become
involved with the Board in the course of working with that
attorney.
Boyle testified that the meeting with Focht had been con-
vened because of the September 9 memoranda complaining
about Focht’s conduct: “I told Mr. Drufke I thought he needed
to talk to Jack,” regarding “the problems and complaints. And
Mr. Drufke told me he agreed. But he felt like it should be both
of us to talk to Jack instead of just him.” As will be seen, that
testimony by Boyle was contradicted by Drufke.
The meeting started, testified Boyle, with Drufke mentioning
that there had been complaints about Focht, after which Boyle
raised a complaint received that morning from customer Ferro
Union. As that discussion progressed, according to Boyle,
Focht became belligerent and said he would refuse even a di-
rect order given to him. At that point, testified Boyle, “I was
sitting down. I stood up. I walked over. I looked out the win-
dow,” and Focht said, “I’m going to tell you something else,
Boyle. I’m not happy with the way you’re running the plant, so
I went to the NLRB.” “I said fine, Jack. That’s not what we’re
here to talk about,” Boyle testified, but “Mr. Focht then pro-
ceeded to tell us that he didn’t agree with our decisions in the
Chester Florian case.” According to Boyle, “I believe then Mr.
Drufke asked Mr. Focht if Mr. Focht was working with Mr.
Florian’s personal attorney,” and Focht “said yes.”
Boyle testified that Drufke then said that he wanted “to get
this meeting back on track,” and added, “Jack, it’s obvious it’s
not working out with you in Chicago. You need to go to Por-
tidge [sic] on Monday,” but “Jack said no.” Of course, that
particular account is somewhat inherently suspect, given that,
as business manager, Focht then was working both at the Chi-
cago and Portage facilities. In any event, testified Boyle,
“Drufke said, Jack, you need to go back, think about it over the
weekend, and we’ll talk on Monday.” “That was it,” Boyle
testified.
Drufke contradicted virtually every aspect of Boyle’s above-
described testimony about the September 11 meeting. Consis-
tent with his above-mentioned denial about having received
them, Drufke denied that the meeting had been called to discuss
the September 9 memoranda. He also denied expressly that
Ferro Union had even been mentioned during the meeting.
Rather, Drufke testified that the September 11 meeting with
Focht had been convened because “a very agitated” Boyle had
come and had “asked if I heard that Jack Focht was working the
Chester’s attorneys, working with the Union concerning the
suspension and termination of Chester.” According to Drufke,
in Boyle’s presence, “I called Jack” and asked, “Jack, I under-
stand that you’re working with Chester’s attorneys. Is this
true?” but Focht did not “reply with either a yes or a no.” So,
testified Drufke, “Jim then, very agitated, jumped up, he was
sitting, and he confronted Jack,” asking “something like. ‘come
on, Jack. I know this is happening.’ Jack looked at Jim and he
said, yes, it’s true.” After asking Focht “why are you doing
that? Why didn’t you talk to me if you thought this was a bad
case?” and not receiving “a good answer,” Drufke testified, “I
then responded that I had to call St. Louis, the gentleman I
reported to worked in St. Louis,” and the meeting ended. So, in
contrast to Boyle, Drufke acknowledged that the meeting had
been convened not to discuss as work deficiencies by Focht, but
because Boyle had become aware that “Jack Focht was working
with Chester’s attorneys,” and, of course, one course being
pursued by September 11 was the unfair labor practice charge
filed by Florian against Respondent-Employer. The connection
between Florian’s counsel and that charge can hardly have
escaped notice by Boyle and Drufke.
As pointed out above, Boyle admitted that Focht had said,
during the September 11 meeting, that he “went to the NLRB.”
Drufke equivocated when asked if there had been any mention
of the NLRB during the meeting. “No, I don’t believe there
was,” he answered initially. “I’m trying to recount a conversa-
tion that happened 2 years ago. One of the reasons I don’t
think there was because if we would have been talking about a
safety problem rather than this case with Chester . . . I certainly
wouldn’t have called someone on the carpet and in essence we
were calling Jack on the carpet,” claimed Drufke. In the end,
however, Drufke expressed uncertainty about recalling whether
or not the NLRB had been mentioned: “No, I don’t. No, I don’t
recall. He might have, he might not have.”
It may be that Drufke truly did not recall whether or not
Focht had mentioned going to the Board. On the other hand, it
may be that Drufke chose to fudge about that having been said,
as an effort to distance himself from subsequent conduct by
Kramer which has become the subject of an unfair labor prac-
tice allegation. Whatever Drufke’s actual motive, Boyle’s
above-described admission removes from doubt that Respon-
dent-Employer had known about Focht’s contacts with the
PRECOAT METALS 1243
Board by the conclusion of the September 11 meeting. Beyond
that, even had Drufke not taken notice at the time of that admit-
ted statement by Focht, Drufke did admit that Focht had admit-
ted that he had been working with “Chester’s attorneys,” and it
hardly takes a genius to make the connection between doing so
and the unfair labor practice charge that by then had been filed
against Respondent-Employer by Florian.
Drufke appeared equally guarded when asked about his call
to Kramer following the meeting with Focht. “I told Roger
what transpired and Roger told me he would be in Chicago . . .
the next work day,” was all that Drufke testified had occurred.
Kramer testified that he had received a telephone call from
Drufke on Friday, September 11, during which Drufke “told me
that he had information that Jack was working with someone’s
lawyer.” According to Kramer, “I don’t think I had a trip
planned” to the Chicago facility before that call from Drufke.
But, he testified that he had told Drufke, “Well, I’ll be up Mon-
day. I want to talk to” Focht.
As to the possibility that Drufke had mentioned during that
telephone conversation that Focht had said he had gone to the
Board, Kramer side-stepped a direct answer to a question about
that, in a fashion similar to Drufke’s above-described answer
about Focht having said anything about having gone to the
Board. “I don’t remember him [Drufke] specifically men-
tion[ing] NLRB,” Kramer testified initially, “I’m not sure he
ever told me that.” Shortly afterward, Kramer denied that
Drufke had mentioned an NLRB statement by Focht. Of
course, Boyle never testified that Focht had said that he had
given a statement to the regional office; merely that he “went to
the NLRB.” Given that admission about what Focht had said,
and given Drufke’s admission that he had “told Roger what
transpired” during the meeting with Focht, it seems unbeliev-
able that Drufke would not have told Kramer, during their Sep-
tember 11 telephone conversation, that Focht said he “went to
the NLRB.” In any event, Kramer conceded that, on September
14, he “heard it from Jack,” that Focht had gone to the Board’s
Regional Office.
Kramer testified that he and Drufke met with Focht on Mon-
day, September 14. “First thing I noticed is that [Focht] was
very upset, on the verge of tears,” claimed Kramer, and, as a
result, he asked, “Jack I understand that you’re working with
somebody’s lawyer on something. What’s going on here?”
According to Kramer, Focht replied to the effect that “he was
working with someone’s lawyer in conjunction with the Na-
tional Labor Relations Board.” Use of that adjective, “some-
one’s,” did not escape notice. During cross-examination,
Kramer conceded that Focht “may have said” that the “some-
one’s lawyer” had been an attorney for “Florian,” but added
hastily, “I’m not sure.”
Kramer testified that Focht had continued by saying that he
was upset about “our treatment of Mr. Florian” and, also, his
own “demotion” from plant manager which had left him feeling
“humiliated” and “hardly” able to “stand being in the plant.”
Obviously, the fact that Focht admittedly had complained to
Kramer about Respondent-Employer’s “treatment of Mr.
Florian,” should have left little doubt about the “someone’s
lawyer” with whom Focht had begun working, even had Focht
actually not said that the “someone” was Florian. Kramer testi-
fied that, in response to Focht’s expression of “humiliat[ion],”
he had asked Drufke, “Didn’t you tell him the reason for that”
demotion, and Drufke had answered, “Yes, I did, but maybe I
didn’t make it clear.”
Then, testified Kramer, he said to Focht, “Well Jack, you
know, I think the best course of action at this time would be,
you know, if you feel that way would be for you to go on paid
leave of absence,” and, “While you’re on this paid leave of
absence I want you to do some soul searching and determine
what you think how you can best serve the company in the
future.” To that, Kramer testified, Focht “did not object or give
me any indication that that was something that he objected to.”
On the other hand, Kramer never claimed that he had offered
Focht an opportunity to voice his opinion about being put on
paid leave of absence.
During cross-examination Kramer agreed that Focht also had
mentioned a list of employees whom Respondent-Employer
purportedly wanted to terminate. Boyle testified that, on Sep-
tember 14, he had been told by Kramer “that he’d had some
type of meeting with Jack Focht,” during which “basically Jack
had said that I had some sort of list of employees that I wanted
to terminate.” “I told Mr. Kramer that was ridiculous,” testified
Boyle. That report by Kramer generated Boyle’s above de-
scribed conversations with Crylen and Phillips, in the first of
the two periphery points.
Boyle also testified that he had told Kramer that he (Boyle)
had no problem with Focht, “[o]utside of the complaints with
the managers and the insubordination.” Any argument that
such a general and ambiguous remark might evidence that
Kramer had known about the complaints described in the sec-
ond periphery point, covered above, is quickly refuted by the
fact that Kramer did not corroborate that testimony by Boyle.
That is, Kramer never testified that, on September 14, he had
been made aware by Boyle of “complaints with the managers
and the insubordination” by Focht. Even had Boyle actually
mentioned those matters to Kramer, in the general fashion de-
scribed by Boyle, Boyle’s remarks obviously had not registered
with Kramer. Not only did the latter not mention them as hav-
ing been said that day by Boyle, but Kramer never claimed that
he had made any further effort to ascertain what Boyle may
have been talking about.
As set forth above, the situation as of September 14 had been
left with a supposedly distraught Focht having been placed on
paid leave, during which he purportedly was to think over how
he could best serve Respondent-Employer in the future. Yet,
there are some bases for inferring that concern about Focht’s
distress, and need to think about his future, never truly had been
Kramer’s actual reason for having placed Focht on leave of
absence that day.
In the first place—as Drufke and, particularly, Kramer’s
above-described testimony show—the entire purpose for
Kramer’s trip to Chicago, and for having conducted the meet-
ing there, had been to ascertain whether Focht had become
aligned with “someone’s lawyer” and, if so, the reason why
Focht had done so. Boyle admitted that, by the time that
Kramer came to Chicago, Focht had already told Drufke that he
(Focht) had gone to the Board. Drufke admitted that he had
“told Roger what transpired” during the meeting when, Boyle
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1244
admitted, Focht had made that remark. By September 11,
Florian’s unfair labor practice charges had been received by
Respondent-Employer. Thus, the circumstances leading
Kramer to come to Chicago on September 14 had not been any
kind of concern about how Focht may have felt. Whatever
Focht’s subjective state, Kramer had come to Chicago to ascer-
tain what involvement Focht had with a lawyer and the Board.
Secondly, Kramer admitted that Focht had said September
14 that he (Focht) “was working with someone’s lawyer in
conjunction with the National Labor Relations Board.” It had
been after Focht had made that remark that Kramer admittedly
had said “the best course of action” would be to place Focht
“on paid leave of absence.” To be sure, according to Kramer,
Focht added that he had felt “humiliated” at his earlier “demo-
tion and, as a result, could “hardly stand being in the plant,”
before Kramer had mentioned placing Focht on paid leave.
Yet, Focht’s feelings have not been shown to have been the
actual reason for Kramer’s decision to place Focht on paid
leave. That those remarks by Focht were no more than a con-
venient hook for Kramer’s suggestion, which effectively re-
moved Focht from Respondent-Employer’s Chicago facility, is
shown by the third basis.
After September 14 Focht was left on paid leave until Octo-
ber 28 without, so far as the evidence shows, any effort being
made by Kramer, or by any other official of Respondent-
Employer, to ascertain the results of Focht’s “soul searching”
about how he might “best serve the company in the future.”
That interval is slightly more than 6 weeks. Such a prolonged
interval of seeming unconcern about the thinking of an em-
ployee placed on leave supposedly to conduct that thinking, on
its face, is strong evidence of actual lack of true concern about
that employee’s “soul searching.” Rather, that relatively long
interval tends to show that, having gotten Focht out of the Chi-
cago facility, Kramer was satisfied to simply leave Focht on the
shelf until some plausible legitimately-motivated action could
be determined. In fact, as discussed below, when he again
confronted Focht on October 28, Kramer had already deter-
mined what action to take concerning Focht, regardless of what
conclusions the latter might have reached as a result of that
“soul searching.”
In fact, Kramer never did claim that he had much cared what
conclusions had been reached by Focht after September 14.
Instead, he testified that he had wanted to implement his spring
decision, described in subsection D above, to transfer or dis-
charge Focht, in light of the hiring discrimination disclosed by
OFCCP’s audit. Indeed, aside from allusions to the problem
caused by Focht’s reaction to Kramer’s March layoff sugges-
tion, described in that same subsection, and to reports of favor-
itism shown to certain Chicago personnel while Focht had been
serving there as production manager, Kramer never testified
that his October and November decisions regarding Focht had
been motivated by any reason other than following through on
that spring decision. Thus, it can hardly be maintained with
any persuasion that Kramer had been concerned with whatever
conclusions had emerged from Focht’s “soul searching” after
being placed on leave with pay on September 14. Beyond that,
there are several inherent problems with Kramer’s portrayal of
the late October-early November actions as being no more than
ultimate implementation of a spring decision to transfer Focht
or, if he declined transfer, to fire Focht.
As described in subsection J above, OFCCP issued its final
determination, accompanied by a proposed conciliation agree-
ment, on August 7, almost 3 months before Focht was offered a
last chance agreement on October 28. That creates an inherent
timing problem for Kramer’s proffered defense. To evade that
problem, Kramer claimed that he had no director of human
resources from the time that John Christopher had left employ-
ment with Respondent-Employer prior to August 7 until Chris-
topher resumed working for Respondent-Employer. But, that
explanation is not so persuasive in the circumstances presented
here, as might be the fact in other circumstances.
First, as pointed out in subsection J above, that explanation is
objectively at odds with certain other facts. Respondent-
Employer is a multistate, multimillion dollar operation. It
seems inherently illogical that the vice-president of manufactur-
ing would be left with no resource for preparing a last chance
agreement other than a departed director of human resources.
To the contrary, the absence of an incumbent in that position
seemed to pose no problem for ultimate resolution and execu-
tion of the conciliation agreement with OFCCP. Nor did it
seemingly pose any problem for Respondent-Employer in for-
mulating and submitting responses to the unfair labor practice
charges filed against it. Nor, most specifically, did it seemingly
pose any problem when preparing the entirely new job descrip-
tion for the position of business manager, the position to which
Focht then was appointed. If Respondent-Employer had been
capable of doing all those things, even though no one occupied
the position of director of human resources, it is difficult to
believe that it lacked someone who could have formulated a
last chance agreement for submission to Focht.
Second, everyone involved in the spring situation that arose
from Focht’s admissions of hiring discrimination—Kramer,
John Christopher and Director of Equal Employment Opportu-
nity and Business Ethics Delk—testified that the primary objec-
tive had been to get Focht out of the hiring process. That was
effectively accomplished by the end of May, as described in
subsection D above, when Focht was divested of the duties and
powers of production manager. That accomplished, no evi-
dence suggests a need to have taken any further action to elimi-
nate Focht from the hiring role that got him and Respondent-
Employer in trouble with OFCCP. After May Focht was in no
position to repeat his earlier discrimination in hiring employees.
Third, it is accurate that after May Focht had been left in an
unstructured and unexplained capacity. Had that continued
until September 14 there might have been some basis for
Kramer’s assertions of a need to follow through further on his
spring decision regarding Focht. But, Focht’s “limbo” situation
did not continue until September 14. As described in subsec-
tion J above, during August Respondent-Employer prepared a
job description for an entirely new position, that of business
manager, and Focht was appointed to that position with the
knowledge of Kramer. In that capacity, Focht had no role in
the hiring process. In fact, as Respondent-Employer acknowl-
edged, Focht had no supervisory authority as business manager.
The fact that Respondent-Employer had gone to the trouble of
creating the business manager position, one which allowed it to
PRECOAT METALS 1245
take full advantage of Focht’s expertise without having him
involved in the supervisory process, and the further fact that
Kramer knew that Focht was being appointed by Drufke to that
position, are strong indications that a final decision had been
made by August regarding Focht’s future with Respondent-
Employer: he would be the business manager working at Re-
spondent-Employer’s northern region facilities in Chicago and
Portage. Then, it came to light that Focht was working with
“someone’s lawyer,” in the process having gone to the Board’s
Regional Office to support Florian’s charges.
John Christopher resumed working as Respondent-
Employer’s director of human resources on October 12. He
and Kramer each testified generally about ensuing conversa-
tions concerning Focht. For example, Christopher testified that,
“Mr. Kramer and I had a lot of conversations about [Focht]
when I got back,” and, during them, that “some liability” with
Focht’s past performance “came into consideration.” However,
Christopher never claimed with any particularity that there had
been mention, much less “consideration,” of Focht’s conduct
while serving as business manager during those October 12 to
28 “conversations” with Kramer about Focht.
Kramer did testify generally that “part of the issue” for offer-
ing the last chance agreement to Focht had been the latter’s
hiring discrimination uncovered by the OFCCP audit. How-
ever, Kramer never claimed that any other “part of the issue”
had been Focht’s misperformance as business manager. In-
stead, he identified only the above-mentioned issues of favorit-
ism and the problem created by Focht’s remarks during conver-
sations leading to the March layoffs. Aside from those two
additional subjects, there was no particularized testimony by
Kramer, nor by John Christopher, about discussion of any other
problems posed by Focht’s performance other than the hiring
discrimination.
For example, Christopher testified that Focht “had a history
with [Respondent-Employer] of moving around fairly regu-
larly,” and that, “There were some difficulties at most of these
locations,” as demonstrated, claimed Christopher, in the below-
quoted first paragraph of the last chance agreement offered
Focht on October 28. Yet, Christopher never explained with
specificity what those difficulties had been, and there is no
particularized evidence concerning past “difficulties” purport-
edly posed by Focht at Respondent-Employer’s facilities other
than Chicago. Nor did Kramer supply such an explanation.
Boyle complained about Focht’s conduct. However, neither
Kramer nor John Christopher claimed specifically that anything
said by Boyle, nor by other Chicago personnel, had influenced
the decision to confront Focht with a last chance agreement on
October 28. To the contrary, testified Christopher, “Jack Focht
was a good man as [sic] getting the strip to run through the line
and making the coatings work. But Jack Focht also had some
problems as a management person.” Yet, as pointed out in
subsection J above, by October 28 Focht had no longer been “a
management person” for over 5 months.
Kramer and John Christopher met with Focht on October 28.
The meeting began with Focht being asked if he had given
thought to how he could best serve Respondent-Employer.
Focht responded that he thought he could do so as a production
manager or foreman, in some sort of supervisory position.
Kramer said he agreed, but looked at Focht’s situation some-
what differently. Kramer then read to Focht the entirety of the
already-finalized two-page last chance agreement. Essentially,
it consists of two parts: a description of Respondent-
Employer’s asserted evaluation of Focht’s employment during
the entirety of his employment by it and, secondly, the offer
being made.
Putting last things first, the offer-portion of the agreement
begins, “The fact that you have had problems at other Precoat
facilities make the only employment opportunity available to
you is at the Jackson Mississippi facility,” as a “production
foreman.” Neither Christopher nor Kramer made any effort to
square the offer of such a position with Christopher’s above-
stated purported concern about Focht’s supposed past “prob-
lems as a management person.”
There were conditions enumerated in the agreement for
Focht to work as a production foreman at Jackson. One was,
“You will refrain from making disparaging remarks to anyone
about the company, members of management, employees, sup-
pliers and customers.” Another was, “You will receive a per-
formance appraisal every three (3) months for the first twelve
(12) months at the Jackson facility and every six (6) months for
the second twelve (12) months.” Failure to meet any one of the
stated conditions, the agreement warns, “will result in your
termination for cause.” Orally, Kramer offered that, in addi-
tion, Respondent-Employer would make every effort to locate
employment for Focht’s wife, Gail—then still working at the
Chicago facility—in the Jackson area.
On their face, those conditions do not lend themselves to ac-
ceptance by a long-term employee of conceded high expertise
and technical ability. But, it was not the conditions that led
Focht to ultimately reject the last chance agreement. Rather, it
was the content of the agreement’s first paragraph which led
him to bridle at signing it. That paragraph states:

Your long history with Precoat has been a mix of contribu-
tions in solving technical and production problems and dis-
ruption caused by your frequent choice to go your own way
and ignore company policies and procedures. In the past, the
company has considered your assets to outweigh your liabili-
ties or at least balance them. On several occasions, the com-
pany has overlooked the disruption caused by your lack of
management skill and disregard for policies with the faith and
expectation that you could change. You were given several
opportunities to make a fresh start at Northgate, Houston,
Chicago and Portage. Unfortunately you did not take advan-
tage of those opportunities and continued to conduct yourself
in an unacceptable manner. Over the past year your liabilities
have increased to the point that they seriously outweigh your
assets. You have continued to single out specific employees
for favor allowing unequal opportunities for training and ad-
vancement. You have openly disparaged the company and
members of management. You have refused to cooperate
with and interfered with other departments in resolving qual-
ity and customer issues. Most significantly, you have placed
the Precoat and our parent company in jeopardy by your hir-
ing practice of refusing to consider women for plant positions
and your comments to representatives of the OFCCP. As a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1246
result, there is no longer a position for you at the Chicago
plant.

John Christopher, who prepared the agreement, never testified
with particularity where he had gotten the information recited
in that paragraph, nor did Respondent-Employer provide par-
ticularized evidence to support many of that paragraph’s asser-
tions.
To the extent that some of what is said in it may be construed
to refer to Boyle’s and other Chicago personnel’s complaints
about Focht’s conduct as business manager, it would be specu-
lative to conclude that that conduct had been what was being
referred to in the agreement’s first paragraph. For, there is no
evidence connecting those complaints by Boyle and Chicago
personnel to Christopher. That is, there is no particularized
evidence that Christopher had become aware of those com-
plaints, especially the ones submitted to Drufke on September
9, as of October 28.
Focht disputed those assertions in the agreement’s first para-
graph. On October 28 he told Kramer and Christopher that he
felt that the first paragraph would prevent him from signing the
agreement. To make an already long story short, Focht was
given time to think about his decision. By handwritten letter to
Kramer dated November 2, Focht gave notice that, “In response
to your last chance agreement, I cannot accept the first para-
graph of this letter [sic], therefore I cannot sign this agree-
ment.”
During a telephone conversation on November 3, according
to Kramer’s own letter of that same date, Kramer offered Focht
the opportunity to “write a rebuttal” to that first paragraph
which “would be put in your personnel file.” However, there is
no evidence that Kramer ever offered, nor ever expressed any
willingness, to actually revise or rewrite the agreement’s first
paragraph. So far as the record discloses, to continue employ-
ment with Respondent-Employer, Focht had to sign the last
chance agreement as written. He refused to do so; he was fired
on November 3.
N. Resolution of Florian’s and White’s Grievances
Florian complained about a purported lack of communication
by Steelworkers after September 1. Yet, the fact is that, in the
immediate wake of that day’s meetings, there was very little of
import for Steelworkers to communicate. Respondent-
Employer remained hitched to its termination decisions. How-
ever, Steelworkers did not simply surrender further efforts to
resolve Florian’s and White’s grievances.
By letter to Boyle dated September 9, Langele requested, in-
ter alia, that those two employees’ grievances “be held in abey-
ance until I have a chance to further evaluate the Union’s posi-
tion on them.” That was not an unusual request, testified Lan-
gele, and Respondent-Employer “never challenged my re-
quest.” Thereafter he and Robinson met with Boyle. During
that meeting Robinson mentioned the name of another em-
ployee who had been only suspended for having left the prem-
ises. That remark by Robinson suggests two points that should
be made.
First, the fact that no one had ever been disciplined for driv-
ing on South Kilbourn Street between buildings while on the
clock, prior to Boyle’s arrival at Respondent-Employer’s Chi-
cago facility, is not a relevant analytical consideration. As set
forth in subsections F and G above, nothing in the Act prevents
employers from changing applications of work rules, to prohibit
conduct tolerated previously. Boyle did specifically inform
Respondent-Union’s officers that he regarded work rule 11 to
be violated by driving on South Kilbourn after having punched
in and before punching out. So, any argument based upon past
toleration of driving between buildings would simply not have
been a good argument to advance to Respondent-Employer as
of September.
Second, initially Langele asked for copies of the videotape
showing White’s August 6 drive on South Kilbourn, from the
annex to the main building, to punch or clock out. Confronted
with Respondent-Employer’s representation that, given White’s
admission of having done so, it did not intend to use the video-
tape in disputes resolution, Langele withdrew his request for it.
He was faulted for that withdrawal, during cross-examination.
But, it hardly can be maintained with the least persuasion that
Steelworkers somehow violated a statutory duty of fair repre-
sentation by ceasing to have interest in viewing a videotape of
misconduct after the employee involved had admitted having
engaged in that misconduct. That statutory duty does not ex-
tend to being a “lookey-loo” for no good reason.
Langele testified that, during the meeting with Boyle, he had
“argued with the company that there were cases like this in the
past that no one was terminated from,” and “the other times that
this grievance, that grievances were filed on this, the people the
worst they received was a ten-day suspension.” Robinson
never contradicted that testimony by Langele. Regardless of
the particular contractual provisions relied upon, that argument
was the best that could be advanced on Florian’s and White’s
behalf, given what they had done and the circumstances leading
to each’s on-the-clock trip on South Kilbourn from the annex to
the main building. Indeed, those arguments by Langele were
essentially the same as arguments advanced earlier on behalf of
Florian and White—arguments which Florian and White each
acknowledged had been satisfactory ones.
The fact is that when he had something significant or differ-
ent to report to Florian and White, Langele was not reluctant to
contact each of those discharged employees. For example,
Langele arranged another meeting with Respondent-Employer
for October 7. Both White and Florian acknowledged having
received telephone calls from Langele to notify them of that
meeting and to give them an opportunity to attend it. Admit-
tedly, both White and Florian declined to do so, albeit for dif-
fering reasons. Florian’s reasons merit further description.
According to him, when told by Langele about the October 7
meeting, he asked “why are we having another meeting?” add-
ing, “I thought we would be in arbitration now, if that’s what it
was going to be.” Maybe so, but Langele can hardly be faulted
for attempting to settle Florian’s and White’s grievances, short
of arbitration. When Langele responded that “[h]e was trying
to get my job back,” Florian testified that he retorted that he
had “filed a complaint with the NLRB, that there was a con-
spiracy between the Company and the union to have me termi-
nated,” but Langele “did not want to discuss that, that he was
calling me for my meeting here.” Not surprisingly, given the
above-described absence of any evidence whatsoever that there
PRECOAT METALS 1247
had been some sort of conspiracy between Respondents to have
Florian fired.
“I informed him what had happened to Jim White at the Sep-
tember 1st meeting,” testified Florian, and “I told him I fear for
my safety, to come back to out that plant again [sic] because of
what happened that day,” and, “I asked him if I could get back
to him in about an hour and a half, that I wanted to make a
decision if I was going to attend the meeting basically.” Fine,
except that there is no evidence that Florian could have be-
lieved that Damron would be attending the October 7 meeting
and, moreover, no evidence that Langele posed any threat to
Florian’s safety. In fact, Florian’s position was not truly a con-
sistent one. He seemingly was not afraid to return to work at
Respondent-Employer’s Chicago facility; but he was afraid to
go there for a grievance meeting.
Florian testified that he had called back to Langele and, “I
told him that I was not going to attend this meeting.” During
this second conversation, testified Florian, Langele “told me
that what he was trying to do was to get some sort of discipli-
nary suspension for me and get me off the streets,” but Florian
replied “that I had done nothing wrong,” and wanted his job
back with “all back pay” and, as well, “some kind of a letter or
something from the company stating no wrongdoing on my
part.” To that, Florian testified, Langele responded, “if you
don’t give me this leverage to come in and negotiate this for
you, I can’t work too hard for you on this case.” As related by
Florian, it seems that Florian was attempting to portray Langele
as making some sort of threat of unwillingness to represent
Florian. And White jumped on a similar remark by Langele,
converting it into a purported threat by Langele not to represent
Florian.
During a meeting concerning the then-upcoming October 7
meeting, testified White, Langele said that he would be having
another meeting with Respondent-Employer and “need[ed]
something to negotiate with. Would the ten day suspension be
fine . . . and we’ll negotiate back pay at a later date,” to which
“I told him yes.” According to White, Langele also said, “he
made the same offer to Chester but Chester would not accept
the ten days suspension because he doesn’t think he’s done
anything wrong. So he’s not really going to have a lot of am-
munition and can’t fight too hard for Chester.”
Langele denied flatly having made those remarks attributed
to him by Florian and White. There is no allegation that Lan-
gele had unlawfully threatened not to “work too hard for”
Florian in attempting to resolve the latter’s grievance. The fact
is that Langele obviously did make efforts to resolve that griev-
ance; he eventually reached the same settlement with Respon-
dent-Employer for Florian that he achieved on behalf of White.
Moreover, as any bargaining representative or attorney knows,
settlement is facilitated by an employee’s or client’s willing-
ness to accept something less than the full and complete rem-
edy sought through arbitration or litigation. That seems to have
been the most that Langele was attempting to communicate to
Florian and White: that settling their grievances would be fa-
cilitated by their willingness to accept less than complete rein-
statement, backpay and an apology letter.
In Longshoremen ILA Local 1575 (Navieras, NFR), 332
NLRB 1336 (2000), the Board pointed out that the Act does not
require a statutory bargaining agent “to obtain ratification of
any collective-bargaining agreement that it negotiates on behalf
of employees it represents.” (Citation omitted.) Ratification,
of course, is one form of consent or agreement by represented
employees. Likewise, there is no statutory obligation on the
part of statutory bargaining agents to obtain grievants’ consent
or agreement to terms of settlement reached on their griev-
ances. Bargaining agents’ statutory authority to strike settle-
ments exists no less for one than for the other. To be sure,
grievance-processing, like contract negotiating, is subject to the
statutory duty of fair representation. But that statutory duty is
not so rigid that it obliges collective-bargaining agents to
blindly do only whatever represented employees want their
bargaining agent to do. Such a situation would hardly promote
the collective-bargaining process which Congress seeks to have
promoted through the Act.
A final point needs to be made about Langele’s above-
mentioned conversation with Florian. Florian testified eventu-
ally that he had asked for a third-party witness to attend the
October 7 meeting, but Langele refused to allow that. Langele
testified that Florian had actually asked to have his attorney
present at the October 7 meeting with Respondent-Employer
and that, “I told him that’s not our policy.” Whichever, there is
no evidence that Steelworkers has a policy of allowing third-
party witnesses or grievants’ attorneys to attend disputes reso-
lution meetings with employers short of arbitration, particularly
meetings intended to attempt compromise negotiations. Thus,
Langele’s response to whichever request Florian had made was
consistent, so far as the record discloses, with Steelworkers’
policy and there is no allegation that such a policy violated the
Act.
By letter to Florian dated October 5, Langele gave notice that
Steelworkers was “going to proceed with the meeting on Octo-
ber 7th,” and urged Florian to attend: “without your testimony
and cooperation in the grievance procedure, you are putting the
union at a severe disadvantage.” Of course, that latter remark is
consistent with a bargaining agent’s feeling that disputes reso-
lution would be better promoted with participation by grievants,
and tends further to refute Florian’s and White’s claims that
Langele had said that he would make less than a full effort to
achieve settlement for Florian without the latter’s cooperation.
That Florian was attempting to distort what he had been told
by Langele during their telephone conversation is further evi-
denced by Florian’s reaction when shown Langele’s October 5
letter. “I don’t remember getting this letter,” claimed Florian,
and “I could be wrong, but I believe [now is] the first time I’ve
ever viewed this letter.” As pointed out above, the letter’s
wording tends to undermine Florian’s account of what Langele
had supposedly said about being able to represent Florian with-
out the latter’s cooperation. Apparently, Florian appreciated
that fact and made an effort to avoid having to concede that he
might have been told something other than what he was claim-
ing had been said by Langele during their telephone conversa-
tion. As it turned out, eventually Florian did concede that, “I
remember now” having received Langele’s October 5 letter.
Langele and Robinson met with Respondent-Employer on
October 7. Langele argued that the discharge penalty was dis-
proportionate to the offense and that no one had ever before
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1248
been terminated for violation of work rule 11. Eventually, he
prevailed on those arguments. On November 4, an agreement
was signed by Drufke and Langele. It provided that the dis-
charges would be “converted to a disciplinary suspension,” that
White and Florian “shall be reinstated and shall return to work
during the week of November 9, 1998 to their regular shift and
to their regular job classification,” and that the parties would
“proceed to arbitration to resolve the question of back pay (if
any) and length of suspension.”
Respondent-Employer sent offers of reinstatement to Florian
and White, pursuant to that settlement agreement. White ac-
cepted and returned to work for Respondent-Employer on No-
vember 13. In contrast, Florian rejected the reinstatement offer.
He did so, he testified, “Because I was told to take a discipli-
nary suspension and admit that I had done something wrong,
which I did not, sir.” Actually, he wanted a little more. Ac-
cording to a letter dated November 11 sent to Drufke, Florian
sought reinstatement; not to have to “report to, be supervised or
managed by, or otherwise be held accountable to Jim Boyle,
Robert Moore, Rich Damron, Manny Escobedo or Ed
Morales”; “full back-pay”; and, “a full retraction of [the] claim
that [Florian] violated work rules 10 and 11. . . placed in his
personnel file.”
Prior to having received that November 11 letter, Drufke, as
well as Langele and Pasnick, had spoken to Florian and had
urged him to accept the offer. After receiving the November 11
letter, a seemingly offended Drufke took a tougher line. In a
response letter dated November 12, Drufke pointed out that
“the Union is the sole and exclusive entity authorized by law to
represent its members.” He stated that Respondent-Employer’s
reinstatement offer would have to “be accepted, if at all, no
later than the close of business Monday, November 16, 1998,”
and that failure to accept would “result in loss of seniority and
termination of employment”—in other words, would leave
Florian in the position that he had been placed on August 10,
when he had been terminated. Florian never showed up for
work by close of business on November 16. By telegram dated
November 17, he was notified that, “YOUR EMPLOYMENT
HAS BEEN SEVERED.” Even so, Steelworkers pursued
Florian’s, as well as White’s, grievance to arbitration.
II. DISCUSSION
Many years ago, in the course of describing a particularly ac-
rimonious election, anchor Dan Rather mentioned a saying to
the effect that if enough mud is thrown, some of it may stick.
That appears to have been the attitude and approach of Focht,
Florian, White, Rolfe and Phillips. But there is a corollary to
Rather’s saying: the mud-thrower better hope that none of the
mud sticks to him/her. The applicability of that corollary to
those five witnesses is illustrated by Section I’s review of the
testimony of each. That review reveals repeated internal con-
tradictions, lack of corroboration by seemingly sympathetic and
friendly other witnesses, lack of corroboration by other evi-
dence and by objective considerations, significant inconsisten-
cies with testimony by other seemingly sympathetic and
friendly witnesses, and inconsistencies with admitted facts and
with objective considerations. So frequently do those factors
emerge from review of the evidence that, as an objective mat-
ter, there is no basis for placing any reliance on the testimony
of Focht, Florian, White, Rolfe, and Phillips. To the contrary,
those objective matters admit of no conclusion other than that
each one of those five witnesses was advancing testimony lack-
ing in candor, in an effort to buttress cases against Respondents
and to undermine Respondents’ positions, rather than attempt-
ing to recreate events and conversations as they had actually
occurred. Indeed, that was the impression that I formed as each
one of them was testifying. Therefore, there is no basis for
crediting the testimony given by Focht, Florian, White, Rolfe
and Phillips.
True, there were other witnesses whose testimony did not
always appear to have been completely candid, particularly
Boyle, Kramer, John Christopher, Damron, and Crylen. How-
ever, other portions of the testimony of each was uncontested,
corroborated by other credible evidence and corroborated by
objective considerations.
It is the General Counsel who bears the threshold burden of
showing that unlawful action was taken by a respondent. “The
burden of establishing every element of a violation under the
Act is on the General Counsel.” Western Tug & Barge Corp.,
207 NLRB 163 fn. 1 (1973). Beyond that, a “defense does not
fail simply because not all the evidence supports it, or even
because some evidence tends to negate it.” Maple Grove
Health Care Center, 330 NLRB 775, 777 fn. 14 (2000), de-
scribing the holding in Merillat Industries, 307 NLRB 1301
(1992). Indeed, even advancing sometimes unreliable defense
testimony is not necessarily dispositive of the ultimate issue of
motivation for allegedly unlawful action. See, Multi-Ad Ser-
vices, 331 NLRB 1226, 1240 (2000), and cases cited therein.
As an objective matter, there is no credible evidence show-
ing that Damron would have likely feared replacement by
Florian as unit chairperson, whether the latter had been able to
run during 1997, nor were he to actually choose to run in 2000.
As set forth in Section I.B., supra, it had not been any conduct
by Damron that had led to declarations that Florian, Phillips,
and Crylen were not eligible to run for unit office during 1997.
Rather, each had been declared ineligible for having failed to
satisfy a candidacy-requirement imposed by Respondent-
Union’s international body. Consequently, while Florian’s
failed candidacy-effort is supposed to have been the trigger for
Respondent-Union’s alleged attempts to cause, and eventual
purported causation of, his suspension and termination, the
credible and objective evidence does not support even a weak
inference that such a trigger had ever existed.
Beyond that, there is no credible showing that Boyle likely
would have been amenable to any overtures by Respondent-
Union, particularly by Damron, to have Florian fired. No
credible or objective evidence shows that Boyle would have
anything to gain by Damron’s retention as unit chairperson. To
the contrary, Damron had protested Boyle’s addition of two
work rules, as described in Section I.F., supra, and had com-
plained to Abbott about Respondent-Employer’s recall of pro-
bationary employees on August 10, as described in Section
I.K., supra. Hardly the actions of a union officer who was be-
ing cozy with an employer’s plant manager. And hardly ac-
tions that would have particularly endeared Damron to Boyle.
Furthermore, there is no credible or objective evidence that
PRECOAT METALS 1249
Boyle would have anything to gain by discharging Florian, so
that Florian would be unable to run for unit chairperson during
2000. Certainly, so far as the evidence shows, by August
Florian never had given any indication to Boyle that he
(Florian) might be an even tougher union official to deal with,
than Damron had already demonstrated.
In sum, the very premise for the allegations of unlawful mo-
tivation regarding Florian is completely lacking in the objective
evidence. Moreover, that premise was not advanced by the
unreliable testimony provided in an effort to attempt to support
it. To the contrary, what objective and credible evidence shows
is that Respondent-Employer had tolerated for years employees
driving on South Kilbourn Street between buildings, after hav-
ing punched in and before punching out; that Boyle was ap-
pointed plant manager to straighten out poor performance at the
Chicago facility and one measure that he always had imple-
mented to accomplish that objective had been strict enforce-
ment of work rules; that Boyle gave notice that he would no
longer tolerate driving on South Kilbourn between buildings
after having punched in and before punching out; that officers
of both Respondents had given specific notice to Florian that
such driving between buildings would no longer be tolerated;
that Florian chose to ignore those warnings and to continue
driving from the main building to the annex after punching in
and, also, to continue driving from the annex to the main build-
ing to punch out; that he was caught doing so on a second occa-
sion by Moore; that he was suspended by Moore for having
done that; and, that Boyle, consistent with his approach of
strictly enforcing work rules, then discharged Florian.
A preponderance of the credible evidence shows that Florian
would have been suspended and discharged, even had he not
tried to run for unit office during 1997, and even had he not
expressed interest in, or intention to, try to run during 2000.
There is no credible evidence that any officer of Respondent-
Union caused Respondent-Employer to suspend or discharge
Florian. A preponderance of the credible evidence does not
support the complaint’s allegations of unlawful motivation for
Florian’s suspension or termination.
It follows from those conclusions that a preponderance of the
credible evidence does not establish that the motivation for
White’s suspension and discharge had been to conceal unlawful
motivation for having suspended and discharged Florian. There
is no credible evidence of the latter, as concluded above, and,
accordingly, that premise collapses as support for allegations of
unlawful motivation regarding White. Instead, a preponderance
of the credible evidence establishes that White had known that
he should not be driving from the annex to the main building to
punch or clock out; that he chose to do so on August 6, perhaps
to test whether he would be treated as had been Florian; that
Moore discovered that White had done that on August 6; and,
that White was treated as had been Florian: he was suspended
and, later, discharged for having done what Florian had done.
So far as the credible evidence shows, White’s suspension and
discharge amounted to no more than Respondent-Employer’s
consistent treatment of two employees who chose to violate the
same work rule.
Inasmuch as a preponderance of the credible evidence does
not establish that Respondent-Union had attempted to cause,
nor actually caused, Florian to be suspended and discharged,
the principal theory underlying its alleged failure to have fairly
represented Florian and White collapses. Nor does a prepon-
derance of the credible evidence establish that Respondent-
Union had unlawfully failed to fairly represent Florian and
White in some other fashion. There is no credible evidence of
unlawful threats, other statements or conduct by Damron, nor
by any other official of Respondent-Union, such that it could be
concluded that Respondent-Union somehow restrained and
coerced employees in the exercise of rights guaranteed them by
Section 7 of the Act. Both Respondent-Union and, then, Steel-
workers made seemingly every effort that plausibly could have
been made on behalf of employees who had chosen to place
themselves in the situations that Florian and White had each
placed himself. In the end, Steelworkers did negotiate a com-
promise that would have restored Florian and White to em-
ployment with Respondent-Employer. White accepted and
returned to work; the ever-distrustful Florian rejected it, thereby
losing any prospect of restored employment with Respondent-
Employer. That is an unfortunate result, but neither with regard
to Florian nor White does a preponderance of the credible evi-
dence establish that Respondent-Union had failed in its statu-
tory duty to fairly represent either one of them.
Nor can it be said that Respondent-Union failed to fairly rep-
resent Rolfe in connection with recall by Respondent-
Employer. Any such allegation, and any remedy for such an
allegation, runs into two insurmountable facts. First, there is no
evidence whatsoever that Respondent-Employer had any light-
duty work available at its Chicago facility from spring through
fall. Second, Rolfe was restricted by his doctor to light-duty
assignment during that entire period. There simply is no evi-
dence showing that Rolfe had been qualified to perform any
work that was available at that facility. And Rolfe had been
told that by Mahoney.
Beyond that, there is virtually no credible evidence that Re-
spondent-Union actually knew, nor reasonably could have sus-
pected, by September 1 that Rolfe had somehow come into
“affiliation” with Florian. Even if either could somehow be
inferred as of September 1, virtually all of Rolfe’s contacts on
and after that date had been with officers of Steelworkers, not
of Respondent-Union. There is no credible evidence that
Steelworkers’ officers had been aware of any “affiliation” be-
tween Rolfe and Florian, nor that either Langele or Pasnick had
suspected as much. Even were there evidence sufficient to
supply an inference of knowledge or, at least, suspicion by one
or both of those officers, there is no evidence that Langele,
Pasnick or any other Steelworkers’ officer had harbored any
animosity toward Florian or much cared if he had or intended to
run for unit chairperson of Respondent-Union. To the contrary,
as concluded above, on and after September 1 Steelworkers had
been attempting to process Florian’s grievance fairly and, even-
tually, processed it to relatively successful resolution, though
Florian chose to reject that resolution. In that context, it simply
would not be reasonable to conclude that Respondent-Union
had been refusing to fairly represent Rolfe based upon any
“affiliation” between him and Florian. Therefore, a preponder-
ance of the credible evidence does not support the allegation
that Respondent-Union had failed to fairly represent Rolfe.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1250
A very different situation is presented when assessing moti-
vation for Focht having been placed on paid leave on Septem-
ber 14, having been offered a last chance agreement on October
28, and having been discharged on November 3 for rejecting
the transfer offered by that agreement. No evidence contra-
dicts, and there is no basis for disputing, Kramer’s testimony
that he had intended during the spring to remove Focht from
further involvement in the hiring process, upon learning of
Focht’s discrimination against female job-applicants. Compel-
ling evidence corroborates that testimony. The May memo-
randa left Focht with the production manager’s title, but with
no hiring or other supervisory powers. As a result of those
memoranda Focht ceased to be a statutory supervisory and
became an employee within the meaning of Section 2(3) of the
Act, albeit not one included in the bargaining unit represented
by Respondent-Union. With the arrival of Moore at Chicago,
Focht lost even the title which had been left to him by the end
of May.
In addition, there is no basis for disputing Kramer’s testi-
mony that, as of spring, he also had intended to remove Focht
from the Chicago facility, by offering him a transfer to the Re-
spondent-Employer’s Jackson, Mississippi facility and, should
Focht decline that offer, to discharge Focht. After all, it was
hardly illogical to transfer Focht from the facility where he had
engaged in discriminatory hiring. But, at that point Kramer did
not implement that portion of his overall decision regarding
Focht. Relying upon advice of John Christopher, to take no
such action until OFCCP issued a final determination, Kramer
did not then transfer Focht, but left him to continue working in
an undefined capacity at Chicago while awaiting OFCCP’s
final determination. Even so, Focht was left at Chicago without
any further ability to engage in the hiring process there, thereby
eliminating any possibility that he might take some future ac-
tion which would lead to further adverse conclusions by
OFCCP.
Kramer’s testimony implodes, however, in connection with
his asserted motivation for events occurring after August 7,
when OFCCP did issue its final determination. Seemingly, that
event cleared the way for Kramer to implement his preexisting
decision to offer Focht transfer or termination. But, Kramer did
not do that in the wake of OFCCP’s final determination. His
very failure to have done so at that point, of itself, is a relatively
strong indication that, with Focht removed from the Chicago
hiring process by August 7, Kramer had abandoned his original
transfer-or-termination decision and, instead, had decided upon
a different course of action with respect to Focht.
As set forth in Section I.J, supra, Kramer claimed that, from
August until October 12, he had lacked any resource-person to
provide counsel for preparing a last chance agreement, a type of
document which Kramer had never prepared. To be sure, by
August 7 John Christopher no longer was employed by Re-
spondent-Employer as director of human resources and no one
had been appointed to replace him. But, viewed from an objec-
tive position, those three factors do not truly support Kramer’s
testimony that he had been handcuffed in taking any action
regarding Focht during August because of the absence of a
director of human resources.
First, Respondent-Employer is a multistate, multimillion dol-
lar entity. That very fact renders virtually incredible that its
vice president of manufacturing would have been totally unable
to locate some source capable of advising about, and even
drafting, the type of last chance agreement which Kramer sup-
posedly then contemplated presenting to Focht.
Second, even after John Christopher had left employment
with it, Respondent-Employer had continued working with
OFCCP and eventually reached agreement on satisfactory con-
ciliation agreement terms. So far as the evidence shows, Re-
spondent-Employer was as unfamiliar with negotiating con-
ciliation agreements with OFCCP, as Kramer was in formulat-
ing terms for a last chance agreement. Yet, terms were reached
for an acceptable conciliation agreement. Moreover, when
confronted with Florian’s and White’s unfair labor practice
charges, Respondent-Employer was able to locate someone
experienced to draft and submit an initial response on Septem-
ber 11, to the Board’s Regional Office. The absence of a direc-
tor of human resources may have somewhat hobbled those
efforts. But, that absence of a director of human resources did
not prevent Respondent-Employer from handling those matters.
It seems inconceivable that Kramer could not have, likewise,
located some source-person to draft a last chance agreement to
present to Focht, had that truly remained Kramer’s intention
during August.
The third objective factor is particularly compelling with
specific regard to Focht. During August Respondent-Employer
presented him with a job description for the newly-created posi-
tion of business manager. Now, it is undisputed that Respon-
dent-Employer had never had a business manager prior to Au-
gust. Nor, so far as the record discloses, did it have an already-
prepared job description for that position. There is some indi-
cation that Drufke had prepared the job description for that
newly-created position. But, there really is no direct evi-
dence—“competent evidence which, if believed, would prove
the existence of a fact at issue without inference or presump-
tion.” (Citation omitted.) Zaban v. Air Products & Chemicals,
Inc., 129 F.3d 1453, 1456 (11th Cir. 1997); see also, Woodson
v. Scott Paper Co., 109 F.3d 913, 930 (3rd Cir. 1997)—that
Drufke had done so or, if he had, that Drufke had done so with-
out any aid or counsel from someone experienced in preparing
descriptions for newly-created jobs.
The totality of those three objective considerations—that,
despite the absence of a director of human resources, Respon-
dent-Employer was able to reach agreement for an acceptable
conciliation agreement, was able to prepare a job description
for the newly-created position of business manager, and was
able to submit an initial response to unfair labor practice
charges—is a sound basis for inferring that Respondent-
Employer could have located someone to prepare a last chance
agreement to present to Focht, had that still been Kramer’s
intention by August 7. Failure to have then done that is a
strong indication that Kramer no longer had intended to offer
Focht the option of transfer or discharge.
The fact that Focht, instead, was offered the newly-created
position of business manager during August is rather convinc-
ing evidence refuting any testimony by Kramer that, as of Au-
gust 7, and immediately afterward, he still had intended to
PRECOAT METALS 1251
transfer or terminate Focht. It is undisputed that Kramer had
known that Focht was being offered the position of northern
region business manager. Kramer never explained why he
would have countenanced offering that position to Focht if,
indeed, Kramer still had intended to transfer Focht to Jackson
or fire him, should he decline that transfer-offer. Surely it
would have been a waste of time and resources to go to the
bother of creating an entirely new position, and then offering it
to Focht, had Kramer truly still been intending to offer Focht a
transfer to Jackson and discharge Focht if he refused to accept
transfer there. Moreover, there is no evidence that Respondent-
Employer offered the position of business manager to anyone
else, following the events of September through November.
Those facts provide strong objective support for a conclusion
that, during August, Respondent-Employer had actually made a
decision to continue employing Focht in its northern region, but
in a position—business manager—where he would have no
hiring or other supervisory power, thereby removing the possi-
bility of repetition of conduct which led to hiring problems with
the government.
There is no basis in the credible evidence for concluding that
Focht had not created problems for Boyle and other Chicago
personnel during his brief stint as business manager. However,
as pointed out in Section I.M., supra, there is no reliable evi-
dence that either Kramer—the official who made the Septem-
ber 14 and post-September 14 decisions concerning Focht—nor
John Christopher—who counseled Kramer regarding the Octo-
ber and November actions—had been made aware of those
problems before Focht had been discharged on November 3.
Certainly neither one of them made any particularized refer-
ences to Focht’s conduct as business manager. Kramer never
testified with specificity that he had decided to place Focht on
paid leave, offer Focht a last chance agreement or discharge
Focht, because of Focht’s performance, or misperformance-
performance, as business manager. Indeed, had either Kramer
or John Christopher known about the complaints concerning
Focht’s performance as business manager as of October 28, it
seems doubtful, given my impression of both officials as no-
nonsense individuals, that either Kramer or Christopher would
have even considered continuing employing Focht at any of
Respondent-Employer’s facilities.
Kramer admitted that he had not intended to come to the
Chicago facility on September 14. He did so only because of
what he had been told during his telephone conversation with
Drufke. What did Drufke tell Kramer during that conversation?
Well, Boyle admitted that, before that telephone conversation,
Focht had disclosed to Drufke that he (Focht) “went to the
NLRB,” as described in section I.M., supra. Drufke danced
around that disclosure, when he testified about what Focht had
said. Yet, Drufke was willing to admit that Focht had acknowl-
edged that he was “working with Chester’s attorneys.” Even
had that been all that Drufke had said to Kramer, it surely
would have put the latter on notice that Focht might also be
involved with the Board. After all, by then Florian’s charge
had been on file for almost a month and Respondent-Employer
was then on the lip of filing its initial response to the charge, as
well as to that of White. Against that background, likely in-
volvement in the charges’ investigation would naturally have
been perceived as one aspect of “working with Chester’s law-
yers.”
As pointed out in Section I.C., supra, timing is a significant
indicium when evaluating motivation for allegedly unlawful
action. Not only can it “lend support to a Board inference of
unfair labor practices,” (citation omitted), NLRB v. Tennessee
Packers, Inc., 390 F.2d 782, 784 (6th Cir. 1968), but, “Timing
alone may suggest anti-union animus as a motivating factor in
an employer’s action.” (Citation omitted.) NLRB v. Rain-Ware,
Inc., 732 F.2d 1349, 1354 (7th Cir. 1984). Of course, the moti-
vation issue posed with regard to Focht is not “anti-union ani-
mus.” Even so, there seems no reason in logic to believe that
the United States Court of Appeals for the Seventh Circuit, nor
for any other circuit, would reach a contrary conclusion where
the allegedly unlawful motive is “fil[ing] charges or giv[ing]
testimony,” within the meaning of Section 8(a)(4) of the Act.
Upon receiving Drufke’s telephone message, Kramer admit-
tedly changed his plans and said that he would be at the Chi-
cago facility on the next workday. In fact, he did arrive there
on September 14. No other reason for so abrupt a change in
plans was advanced by Kramer. Therefore, there is a strong
basis for inferring that Kramer made his decision to come to
Chicago on September 14 for no reason other than his acquisi-
tion of knowledge, or his suspicion, that Focht had become
involved with the Board, as one integral aspect of working with
Florian’s attorney.
There on that date, as described in section I.M., above,
Kramer admittedly confirmed, during the meeting conducted,
that Focht in fact was working with “someone’s attorney in
conjunction with the National Labor Relations Board.” Kramer
ended the meeting by putting Focht on paid leave, thereby re-
moving Focht altogether from access to the Chicago facility, as
well as from daily access to employees working there, and to
ones working in Portage. From the sequence of events, as re-
cited by Kramer, it is impossible to escape a conclusion that the
sole reason that Kramer had placed Focht on paid leave had
been the latter’s acknowledgment that he was working with
Florian’s “attorney in conjunction with the National Labor
Relations Board.”
In fact, as set forth in subsection I.M., supra, Kramer ac-
knowledged that Focht had complained during the meeting
about Respondent-Employer’s “treatment of Mr. Florian.” Of
course, by the time of that September 14 meeting, both White
and Rolfe also had filed unfair labor practice charges against
Respondent-Employer. But, existence of those added charges
hardly advance Respondent-Employer’s situation. Even if
Kramer might have inferred that it was White’s or Rolfe’s at-
torney with whom Focht acknowledged to be working “in con-
junction with the National Labor Relations Board,” that merely
means that Kramer could have believed that Focht was working
with a different employee’s attorney “in conjunction with the
. . . Board.” In either event, Kramer learned directly from
Focht on September 14 that, indeed, Focht had begun doing
that. Moreover, since Focht complained only about Respon-
dent-Employer’s treatment of Florian, it seems natural for
Kramer to have concluded that, in fact, it was Florian’s attorney
with whom Focht was working “in conjunction with the Na-
tional Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1252
In an apparent effort to escape a conclusion that working
with the Board had been one reason for placing Focht on paid
leave, Kramer portrayed that action as having occurred only
after Focht remarked that he felt “humiliated” as having been
divested of production manager’s supervisory powers and,
further, was hardly able to “stand being in the plant.” In other
words, that Kramer had placed Focht on paid leave not because
of any involvement with “someone’s attorney” and the Board,
but rather to accommodate Focht’s asserted feelings of distress
at having to continue working in the Chicago plant. Yet, objec-
tive evidence tends to negate any conclusion that it had only
been those distress-remarks by Focht that had led Kramer to
place Focht on paid leave at the end of the September 14 meet-
ing. Instead, objective evidence shows no more than that
Kramer had seized upon those remarks as a vehicle for getting
Focht out of the Chicago facility, by placing him on paid leave.
As set forth in section I.M., supra, Kramer testified that
Focht’s feelings, stated during the September 14 meeting, had
led him to place Focht on paid leave, during which Focht was
to “do some soul searching and determine what you think how
you can best serve the company in the future.” Had that truly
been Kramer’s lone motivation, presumably in due course
Kramer would again have contacted Focht, to ascertain the
latter’s proposed solutions formulated as a result of that “soul
searching.” But, that never happened. Instead, Kramer left
Focht cooling his heels on paid leave for slightly more than 5
weeks. Kramer never claimed that he made any effort during
that period to determine any conclusions that Focht might have
reached.
To be sure, when Kramer did ultimately meet again with
Focht, Kramer began their meeting by asking a prefatory ques-
tion about Focht’s conclusions. That is all it was, however:
merely prefatory. For, admittedly, before that meeting Kramer
had already decided to offer a last chance agreement to Focht
and to fire Focht if he rejected that agreement’s offer of transfer
to Jackson. Kramer never contended that anything said by
Focht during the October 28 meeting would alter that course,
transfer or discharge, which Kramer had already decided to
follow before the October 28 meeting even began. There is no
other evidence from which it can be inferred that Kramer would
have pursued some different or modified course, had Focht
made some suggestion which might have caught Kramer’s
attention. So far as the evidence shows, Kramer intended to
pursue the transfer-or-discharge offer, regardless of anything
that Focht might say during the October 28 meeting. In light of
those considerations, Kramer’s prefatory question to Focht,
about the latter’s conclusions, amounted to no more than an
extension of the pretext upon which Kramer had seized during
the September 14 meeting as the purported reason for having
placed Focht on paid leave that day.
It should not escape notice that Focht’s September 14 state-
ment, about involvement with the Board, would not be the first
occasion during 1998 when Focht had caused grief for Respon-
dent-Employer as a result of remarks to a government agency.
Only a few months earlier his statements to OFCCP had sad-
dled Respondent-Employer with a final determination of
unlawful hiring practices and with a monetary remedy. True,
Focht’s remarks to OFCCP had involved Focht’s own conduct.
Still, Respondent-Employer bore the brunt of remedying those
unlawful hiring practices. Now, during September, Focht was
acknowledging involvement with a different government
agency. Kramer, who had been fully aware of what occurred
during OFCCP’s audit, could hardly overlook the possibility
that Focht would again be making statements which might lead
to additional remedial obligations being imposed on Respon-
dent-Employer. That hardly was a palatable prospect for
Kramer to contemplate. Such a prospect, coupled with the
timing of placing Focht on paid leave in connection with his
disclosure of involvement with the Board and with the absence
of any other credible legitimate reason for having placed Focht
on paid leave on September 14, support the conclusion that
Kramer’s actual reason for having placed Focht on paid leave
had been the latter’s disclosure of involvement with an “attor-
ney in conjunction with the National Labor Relations Board.”
One bootstrap argument needs to be addressed in connection
with the preceding paragraph’s conclusion. Kramer’s concern
with Focht becoming involved with the Board, that argument
proceeds, should be regarded as evidence that Focht had some-
thing to disclose to the Board which would show unlawful mo-
tivation for the suspensions and discharges of Florian and
White, just as his disclosures to OFCCP auditors had shown
unlawful hiring. Such an argument in the context of Focht
being placed on paid leave, however, represents no more than
pillars of sand leaning against each other for support.
As concluded above, as well as in subsections of Section I,
supra, the preponderance of credible evidence does not estab-
lish that Respondent-Employer had been motivated by any
proscription imposed by the Act when it suspended and termi-
nated either Florian or White. By September Kramer surely
appreciated that fact. Still, he had to be concerned about what
Focht might tell the Board, in light of Focht’s expression of
“humiliation” because of loss of his supervisory powers and, by
September, title of production manager. Obviously, even the
purest of motive can be concluded to have been adulterated, if
someone is willing to fabricate testimony and to distort remarks
which had been made. Consequently, the fact that Kramer had
retaliated against Focht, for the latter’s disclosure that he was
working with “someone’s attorney in conjunction with the Na-
tional Labor Relations Board,” does not, standing alone, ad-
vance any argument that earlier disciplinary action had been
unlawfully motivated. At best, the motivation for Kramer’s
actions directed toward Focht constitutes no more than an illus-
tration of the principle that “a piece of fruit may well be bruised
without being rotten to the core.” Cooper v. Federal Reserve
Bank of Richmond, 467 U.S. 867, 880 (1984). That one official
took action for unlawful motivation does not require a conclu-
sion that other officials had earlier done so.
None of what has been said in the immediately preceding
paragraph, of course, should be construed as some sort of li-
cense for statutory employers to engage in discrimination
merely because of some sort of belief, no matter how well-
founded, that someone employed may be giving false testimony
to the Board in an affidavit. To allow such speculation to suf-
fice as a basis for discrimination would undermine the policies
underlying Section 8(a)(4) of the Act. See, e.g, Condea Vista
Co., 332 NLRB 1275 fn. 1 (2000). In fact, Kramer never
PRECOAT METALS 1253
claimed that his decisions concerning Focht had been motivated
by suspicion that the latter had been making false statements to
the Board, in the course of working with “someone’s attorney.”
So, Respondent-Employer cannot now validly defend its Sep-
tember 14 through November 3 actions directed against Focht
on the basis of some sort of suspicion about the truthfulness of
Focht’s statements to the Board’s Regional Office investigator.
In fact, a preponderance of the credible evidence establishes
that a motive for each of Kramer’s actions against Focht had
been the latter’s disclosure that he had become involved with
the Board, in the course of working with “someone’s attorney.”
By September, Focht had been removed from Respondent-
Employer’s hiring process and no longer possessed any super-
visory authority, thereby erasing any further concern that he
might commit improprieties in the course of hiring or exercis-
ing any other supervisory powers. By September, Focht had
been recently installed in a newly-created position that left
Respondent-Employer able to take advantage of his acknowl-
edged technical expertise, while avoiding further problems in
hiring or other exercise of supervisory authority by Focht.
Despite his spring tentative decisions, Kramer appeared satis-
fied with Focht’s situation until learning of Focht’s involve-
ment with the Board, as Boyle admitted that Focht had said on
September 11. That led Kramer to make an unscheduled trip to
the Chicago facility where he confirmed from Focht that the
latter was, indeed, involved “with the National Labor Relations
Board,” in the course of working with “someone’s attorney.”
Before that meeting ended, Kramer placed Focht on paid leave.
Kramer said at that time that the paid leave was intended to
allow time for Focht to do some “soul searching” regarding his
future with Respondent-Employer. But, Kramer made no effort
whatsoever to determine what conclusions Focht might have
reached. Rather, Kramer left Focht on paid leave for little more
than 5 weeks—a period sufficient to allow some hiatus to de-
velop between Focht’s admissions about involvement with the
Board and ultimate action by Respondent-Employer concerning
Focht’s future—after which Kramer presented Focht with a last
chance agreement, containing a battery of unsupported accusa-
tions regarding Focht’s employment history with Respondent-
Employer. Absence of evidentiary support for those accusa-
tions and Respondent-Employer’s failure to explain with par-
ticularity its reasons for having included each one in the last
chance agreement, coupled with the indicia underlying its deci-
sion to place Focht on paid leave 5 weeks earlier, as well as
with his relatively-recent appointment to a newly-created posi-
tion, collectively support a conclusion, as an objective matter,
that the agreement had been offered to Focht as a vehicle for
removing him from the Chicago facility because of his in-
volvement with the Board and, beyond that, with some expecta-
tion that he would reject the agreement’s transfer-offer and, in
so doing, afford Respondent-Employer with a means for firing
Focht. That, of course, is what happened.
The factors enumerated in the immediately preceding para-
graph lend support to my conclusion, formed as they were testi-
fying, that neither Kramer nor John Christopher were being
candid when attempting to describe motivation for offering a
last chance agreement to Focht and, then, firing him when he
rejected its offer. Therefore, I conclude that a preponderance of
the credible evidence does establish that Focht had been placed
on paid leave on September 14, offered the last chance agree-
ment on October 28, and discharged on November 3 because
Kramer discovered that Focht—a statutory employee—had
become involved with the Board, in the course of working with
“someone’s attorney,” and had decided to retaliate against
Focht for having engaged in that statutorily-protected conduct,
in violation of Section 8(a)(4) and (1) of the Act. That leaves
for consideration the remedy to be ordered for having engaged
in those unfair labor practices.
In addition to cease and desist orders, backpay and rein-
statement are ordinarily ordered as remedies for discriminatory
conduct. Those remedies are intended “to vindicate the law
against one who has broken it.” Lipman Bros., Inc., 164 NLRB
850, 853 (1967). See more recently, Consolidated Freightways
v. NLRB, 892 F.2d 1052 (D.C. Cir. 1989). To deny either one
in the ordinary situation would be to “subvert the protection of
[Section] 7 of the Act,” where “discriminatory discharges” have
occurred. NLRB v. International Van Lines, 409 U.S. 48, 53
(1972). Indeed, reinstatement is a particularly important rem-
edy to order in situations where, as here, an employer’s dis-
criminatory motivation is one proscribed by Section 8(a)(4) of
the Act. To allow conduct motivated by that proscription to be
left unremedied by reinstatement would naturally compromise a
statutory prohibition aimed at effective administration of the
Act. See, e.g., Oil City Brass Works v. NLRB, 357 F.2d 466,
471 (5th Cir. 1966). Nonetheless, effective administration of
the Act involves more than ensuring maximum freedom for
access to the Board.
The ordinary remedies of backpay and reinstatement will be
withheld whenever a discriminatee has given testimony so false
that it rises to the level of “deliberate and malicious conduct,”
Service Garage, Inc., 256 NLRB 931 (1981), because such
conduct undermines the Board’s ability to effectively achieve
and administer the totality of the Act’s objectives. See, Owens
Illinois, 290 NLRB 1193 (1988). That is precisely the situation
presented by Focht. He was a generally untrustworthy witness.
That is not merely a subjectively-based impression. Analysis
of his sometimes internally-contradictory, other times uncor-
roborated, and not-infrequently contradicted testimony, de-
scribed in various subsections of Section I, supra, leaves no
room for disputing that Focht gave testimony totally lacking in
effort to be candid, both when testifying during the hearing and,
as well, in his prehearing affidavit given during the underlying
investigation. Indeed, because of those false statements made
during the investigation, it is difficult to assess the extent to
which the General Counsel would have pursued the complaint’s
other allegations had Focht not provided those statements dur-
ing the investigation. Obviously, supplying false statements
during the investigative phase of the Board’s proceedings, and
thereby leading the General Counsel to make allegations not
based in whole or in part on credible evidence, is hardly a
course which promotes effective administration of the Act.
Focht’s lack of candor was not confined to what he said dur-
ing this proceeding. Even before the charges had been filed, he
had acted upon his dislike for Damron by aiding Florian in his
effort to supplant Damron as unit chairperson. In the process,
then-Production Manager Focht supplied Florian—and, at least,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1254
Phillips, as well—with records some of which should only have
been provided to a statutory bargaining agent. In so doing,
Focht engaged in prohibited direct dealing with represented
employees, as described in Section I.C., supra. That is hardly
conduct which promotes effective administration of the Act.
Nor is that objective promoted by a production manager’s false
statements to an employee that the unit chairman has been at-
tempting to persuade the employer to fire that employee. Yet,
that was what Damron had been doing while serving as produc-
tion manager, a position that would naturally lead an employee
to believe that such adverse statements about the unit chairman
had basis in fact.
Focht did not confine his remarks to ones made to Florian.
During the same period as he was saying to Florian that his
(Florian’s) discharge was being sought by Damron, Focht also
was telling Damron, during the December 1997 labor-
management meeting described in Section I.C., supra, that
Florian was extracting money and monetary equivalents from
commercial truckdrivers. In doing so, Focht apparently was
attempting to “conflict this” situation of mutual dislike which
Florian and Damron harbored for each other. It hardly pro-
motes effective administration of the Act when someone seeks
to poison the relationship between an employee and an agent of
that employee’s statutory bargaining agent.
Of course, those events had occurred while Focht was pro-
duction manager and he no longer occupied that position by the
time he went to the Board’s Regional Office on August 31. He
had become business manager by then, a nonsupervisory posi-
tion, and it would be to that position that any reinstatement
order would be directed. Yet, as also described in Section I.C.,
supra, even after ceasing to possess supervisory powers, Focht
continued to take actions and make statements which naturally
caused “conflict” between Florian and Damron. For example,
Focht granted Florian’s request for a day off on one Saturday.
By the time of doing so, Focht no longer possessed authority to
take such action. But, when Florian then was denied that day
off, as a result of Damron’s intervention on behalf of employ-
ees being denied days off because of past favoritism shown by
Focht to Florian, the situation was left with Florian believing
that Damron had improperly caused the initially granted day off
to be rescinded. And Focht seems to have been satisfied to
allow that “conflict” to remain uncorrected. For there is no
evidence that Focht had made the least effort to inform Florian
that he (Focht) had lacked authority to grant a day off to any-
body, nor to inform Florian of the true reason for Damron’s
objection.
Beyond that, as set forth in Section I.H., supra, when Florian
had been suspended, and had come upstairs to consult with
Focht about that suspension on August 4, Focht admittedly had
told Florian that “he got set up,” and during an ensuing tele-
phone conversation he ultimately admitted, having told Florian
that, “I felt he was a [sic] setup by Mr. Boyle and Mr. Dam-
ron.” Given the earlier false remarks made to him while Focht
had been production manager, and the likely special knowledge
that Focht would seemingly acquire while having served in that
position, it would have been natural for Florian to conclude
during August that, in fact, there was truth to Focht’s state-
ments. In turn, it would have been logical for Florian to con-
clude, based upon Focht’s ongoing false statements about Dam-
ron, that Respondent-Union did not intend to represent him and,
from that, to distrust anything said to him by most officials of
Respondent-Union and, as well, by Steelworkers’ officials.
True, Florian had not liked Damron. However, there is no basis
for inferring that dislike would have blossomed into distrust
had Florian not been supplied with Focht’s false statements
concerning Damron.
Obviously, those remarks by Focht, and the distrust which
they bred, left Florian unable to accurately assess the situation
in connection with the grievance filed on his behalf. That is, he
distrusted what his bargaining agent and its international offi-
cers were saying to him which, in turn, left him unreceptive to
proposed alternative course of action which they were attempt-
ing to pursue in an effort to get his job back. In short, Focht’s
ongoing false statements contributed to, perhaps caused, dis-
trust between an employee and his bargaining agent, thereby
frustrating that bargaining agent’s ability to represent that em-
ployee. That also is a result inconsistent with effective admini-
stration of the Act.
One other point should not be overlooked. It is undisputed
that when Moore first had warned Florian during mid-July to
cease driving on South Kilbourn Street between buildings while
on the clock, as described in Section I.G., supra, Florian had
retorted that he was “going to have to talk to Jack Focht about
it,” or to “check with Jack Focht.” There is no evidence show-
ing that Florian had not done so. However, given the overall
sequence of events, especially Florian’s postsuspension prompt
trip to where Focht was working at the time, it seems a fair
inference that Florian had “check[ed] with Jack Focht” about
what he had been told by Moore.
Neither Florian nor Focht testified about what had been said
between them, in the wake of Moore’s mid-July warning to
Florian. Yet, Florian continued thereafter to drive on South
Kilbourn between buildings while on the clock, until caught
again by Moore on August 3. By mid-July Focht had admit-
tedly become embittered at losing his authority as production
manager and, of course, by then it had been Moore—the same
official who had warned Florian about driving between build-
ings—who occupied the production manager position. From
the totality of these considerations, it is a fair inference that
Focht had told Florian to simply disregard whatever Moore had
warned—to continue doing as he had been doing which, obvi-
ously, had been the course that Florian then followed. That is
hardly a situation which is consistent with effective administra-
tion of the Act’s overall purposes, especially when the em-
ployee involved then was discharged for the very conduct
which he had been warned not to repeat. There is a substantial
basis for inferring that Florian was discharged as a result of
following Focht’s advice.
There is no basis for concluding that, were he to be rein-
stated, Focht would cease engaging in such disruptive activi-
ties—ones which impaired relations between unit members and
their statutory bargaining agent, ones which inherently dis-
rupted the ability of that statutory bargaining agent and those
employees’ employer to bargain successfully for resolutions of
grievances, and ones which disrupted relations between em-
ployee and employer—which undermine effective operation
PRECOAT METALS 1255
and administration of the Act. To the contrary, from his atti-
tude while testifying, there is every basis for concluding that, if
reinstated, Focht would locate other “conflict[s]” that he could
create for unit employees, Respondent-Union and Respondent-
Employer. In fact, though Kramer had been unaware of them
when making his decisions pertaining to Focht, so far as the
evidence shows, Focht’s undisputed misconduct and interfer-
ence with operations while serving as business manager, are
further evidence of his willingness to continue engaging in
improper and disruptive conduct, should he be reinstated. In
sum, it does not promote the policies of the Act to order rein-
statement for someone who has taken so many actions, with so
many consequences, that undermine the objectives and policies
of the Act.
Nor does an award of backpay to Focht promote the objec-
tives and policies of the Act. His words and conduct effectively
led to that employee’s suspension and termination. They also
led that employee to so distrust his statutory bargaining agent,
and its international body, that those labor organizations were
prevented from effectively representing that employee. As a
result, that employee has lost his job. Indeed, Focht’s words and
conduct directly and indirectly caused a general disruption of
relations between a statutory bargaining agent and other em-
ployees represented by that bargaining agent, as shown by the
attitudes of Phillips and Rolfe. Beyond that, as pointed out
above the General Counsel relied upon Focht’s affidavit state-
ments for some of the evidence presented during the hearing in
the instant proceeding, certainly for the testimony elicited from
Focht. No one can say with absolute assurance what litigation
course would have been followed, had Focht’s false statements
not been available when deciding to issue complaint and pro-
gress through hearing. Nevertheless, it is fair to conclude that
this proceeding would not have been so prolonged, had those
false statements not been made during the investigation.
In fact, there may have been no proceeding at all, at least on
behalf of Florian, had Focht not made false statements that
caused Florian’s dislike of unit officers to blossom into distrust.
Absent that distrust, Florian may well have assessed more dis-
passionately the statements being made by Respondent-Union
and Steelworkers—may well have accepted the ultimate com-
promise reached and returned to employment with Respondent-
Employer, leaving the amount of backpay to be determined
during arbitration. Given the cost to the Board of this proceed-
ing, the cost to Florian of relying upon what had been said to
him, and the costs to both Respondents of having to participate
in proceedings in which they might not otherwise have been
forced to participate to defend themselves, it cannot be said that
awarding backpay to Focht would promote any objective or
policy contemplated by the Act.
Eliminating reinstatement and backpay remedies does not
somehow allow Respondent-Employer to escape the conse-
quences of its unlawfully motivated actions toward Focht. It
remains subject to a cease and desist order. That order will
remain as background should Respondent-Employer again
engage in conduct which violates Section 8(a)(4) of the Act.
That is not an inconsiderable consequence. Indeed, were rein-
statement and backpay to be ordered, but were Focht to reject
reinstatement and not be entitled to any backpay due to interim
employment, the cease and desist order would be the one re-
maining remedy left—the situation would be no different than
results from withholding those remedies because of Focht’s
“deliberate and malicious conduct, Service Garage, supra,
which undermined effective administration of the Act and the
ability of the Board to achieve the Act’s objectives.
As pointed out above, in a different setting the United States
Court of Appeals for the Seventh Circuit stated that “there must
be room in the law for a right of an employer somewhere,
sometime, at some stage, to free itself of continuing” employee
misconduct. NLRB v. Eldorado Mfg. Co., 660 F.2d 1207, 1214
(7th Cir. 1981). No differing approach is warranted in connec-
tion with the Board’s evaluation of its remedial power. Parallel
logic dictates a like conclusion where a discriminatee’s actions,
and likely future actions, are contrary to the objectives and
policies of the Act. This situation presents the place, the time
and the stage for withholding reinstatement and backpay as
remedies.
CONCLUSION OF LAW
Precoat Metals has committed unfair labor practices affect-
ing commerce by placing on paid leave of absence, by offering
a last chance agreement to, and by discharging Jack Focht for
having spoken with, and given an affidavit to an agent of the
National Labor Relations Board, in violation of Section 8(a)(4)
and (1) of the Act. However, it has not violated the Act in any
other manner alleged in the Consolidated Complaint, as
amended.
REMEDY
Having concluded that Precoat Metals has engaged in unfair
labor practices, I shall recommend that it be ordered to cease
and desist therefrom and, further, that it be ordered to take cer-
tain affirmative action to effectuate the policies of the Act.
[Recommended Order omitted from publication.]