Scepter Ingot Castings, Inc.

National Labor Relations Board - Board Decisions

Aug 28, 2000

331 N.L.R.B. 1509 (N.L.R.B. 2000)

SCEPTER INGOT CASTINGS 1509
Scepter Ingot Castings, Inc. and Stephen L. Merrell

Scepter Ingot Castings, Inc. and Shopman’s Local
Union No. 733 of the International Association
of Bridge, Structural and Ornamental Iron
Workers, AFL–CIO. Cases 26-CA-17161 and
26-CA-17345
August 28, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On July 16, 1997, Administrative Law Judge Richard
J. Linton issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and ex-
plained below.2
1. The Union was certified to represent Respondent’s
employees in 1993. The Respondent claims that it with-
drew recognition of the Union in 1995 after receiving
information that raised a doubt that the Union continued
to represent a majority of unit employees. To support its
purported doubt, the Respondent relies, inter alia, on
statements employee Penney Hensley made to the Re-
spondent’s plant manager, Steve Whitehead, and Presi-
dent Garney Scott. According to Hensley, she told
Whitehead she “felt” that the Union had “no standing”
and that she “felt like” the employees no longer wanted
the Union as their representative; and she told Scott she
“felt that [the Union’s status] was a gone issue.”
We agree with the judge that the Respondent did not
have sufficient grounds to support a good-faith doubt that
the Union retained the support of a majority of unit em-
ployees and, consequently, the Respondent’s withdrawal
of recognition was unlawful. Our conclusion is not al-
tered by the Supreme Court’s decision in Allentown
Mack Sales and Service, Inc. v. NLRB, 522 U.S. 359
(1998). The Court held that “doubt” meant “uncer-
tainty,” so that the test could be phrased in terms of
whether the employer “lacked a genuine, reasonably-
based uncertainty about whether [the union] enjoyed the
continuing support of a majority of unit employees.” Id.
at 823. We find that Hensley’s statements about the Un-
ion’s “standing” or “status,” and her opinion that em-
ployees no longer wanted the Union are totally insuffi-
cient to support the withdrawal of recognition. These
vague statements do not come even close to being objec-
tive evidence justifying a withdrawal of recognition, re-
gardless of whether the test is phrased in terms of “good
faith reasonable doubt” of the Union’s majority support
or “genuine, reasonable uncertainty about whether the
Union enjoyed the continuing support of a majority of
unit employees.” See Henry Bierce Co., 328 NLRB 646,
650–651 (1999). We also agree with the judge that the
other factors relied on by the Respondent are insufficient
to support withdrawal.3

1 The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative
law judge’s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing the
findings.
As the judge noted, the Respondent admitted the complaint’s jurisdic-
tional allegation. The complaint alleged that in the 12-month period
ending March 31, 1996, the Respondent sold and shipped from its New
Johnsonville, Tennessee facility goods valued in excess of $50,000 di-
rectly to points located outside the State of Tennessee and purchased and
received at its facility goods valued in excess of $50,000 directly from
points located outside the State of Tennessee.
2 We shall modify the recommended Order to provide that the Respon-
dent shall make whole employees for any expenses ensuing from the
Respondent’s unilateral changes in medical insurance coverage and con-
tributions. See Kraft Plumbing & Heating, 252 NLRB 891, fn. 2 (1980),
enfd. 661 F.2d 940 (9th Cir. 1981).
2. We agree, for the reasons fully set forth in Caterair
International, 322 NLRB 64 (1996), that an affirmative
bargaining order is warranted in this case as a remedy for
the Respondent’s unlawful withdrawal of recognition
from the Union. We adhere to the view, reaffirmed by
the Board in that case, that an affirmative bargaining
order is “the traditional, appropriate remedy for an
8(a)(5) refusal to bargain with the lawful collective-
bargaining representative of an appropriate unit of em-
ployees.” Id. at 68.
In several cases, however, the U.S. Court of Appeals
for the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics, Inc.
v. NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Bldg. Material v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir.
1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243, 1248
(D.C. Cir. 1994). In the Vincent case, the court summa-
rized the court’s law as requiring that an affirmative bar-
gaining order “must be justified by a reasoned analysis
that includes an explicit balancing of three considera-
tions: (1) the employees’ § 7 rights; (2) whether other
purposes of the Act override the rights of employees to
choose their bargaining representatives; and (3) whether
alternative remedies are adequate to remedy the viola-
tions of the Act.” Id. at 734.
3 As found by the judge, circulation of the decertification petition did
not occur until after the withdrawal of recognition. Thus, in agreement
with the judge, we find that the Respondent cannot rely on that petition.
Based on the judge’s factual findings, we also find no merit in Respon-
dent’s contention that the Union abandoned the bargaining unit. Finally,
we also agree with the judge that the employee turnover was insufficient
to support withdrawal.
331 NLRB No. 153
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1510
Although we respectfully disagree with the court’s re-
quirement for the reasons set forth in Caterair, we have
examined the particular facts of this case as the court
requires and find that a balancing of the three factors
warrants an affirmative bargaining order.
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the em-
ployer’s withdrawal of recognition. At the same time, an
affirmative bargaining order, with its attendant bar to
raising a question concerning the Union’s continuing
majority status for a reasonable time, does not unduly
prejudice the Section 7 rights of employees who may
oppose continued union representation because the dura-
tion of the order is no longer than is reasonably necessary
to remedy the ill effects of the violation.
Moreover, we note that, in addition to unlawfully
withdrawing recognition, Respondent unilaterally
granted pay raises to bargaining unit employees, unilat-
erally changed medical insurance coverage for bargain-
ing unit employees, unilaterally changed work rules
without consulting with the Union, and unlawfully dis-
charged an employee. These unilateral actions clearly
signal to employees the Respondent’s continuing disre-
gard for their bargaining representative and would likely
have a long-lasting effect.
(2) The affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining in the hope
of further discouraging support for the Union. It also
ensures that the Union will not be pressured, by the pos-
sibility of a decertification petition, to achieve immediate
results at the bargaining table following the Board’s reso-
lution of its unfair labor practice charges and issuance of
a cease-and-desist order.
(3) A cease-and-desist order, without a temporary de-
certification bar, would be inadequate to remedy the Re-
spondent’s violations because it would permit a decerti-
fication petition to be filed before the Respondent had
afforded the employees a reasonable time to regroup and
bargain through their representative in an effort to reach
a collective bargaining agreement. Such a result would
be particularly unfair in circumstances such as those
here, where litigation of the Union’s charges took several
years and the Respondent’s unfair labor practices were of
a continuing nature and were likely to have a continuing
effect, thereby tainting any employee disaffection from
the Union arising during that period or immediately
thereafter. We find that these circumstances outweigh
the temporary impact the affirmative bargaining order
will have on the rights of employees who oppose contin-
ued Union representation.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the allegations in this
case.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Scepter
Ingot Castings, Inc., New Johnsonville, Tennessee, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Add the following as paragraph 2(g) and renumber
the subsequent paragraphs accordingly.
“(g) Make employees whole for any expenses ensuing
from the Respondent’s unilateral changes in medical
insurance coverage and contributions, as set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. 661 F.2d 940 (9th Cir. 1981), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).”
2. Substitute the attached notice for that of the admin-
istrative law judge.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT do anything that interferes with, re-
strains, or coerces you with respect to these rights, and
more specifically:
WE WILL NOT withdraw recognition from or fail and
refuse to bargain in good faith with Shopman’s Local
Union No. 733 of the International Association of
Bridge, Structural and Ornamental Iron Workers, AFL–
CIO, while that Union is lawfully entitled to recognition
as the exclusive bargaining representative of all employ-
ees in the following appropriate unit:
All production and maintenance employees, ship-
ping and receiving department employees, and cus-
todians employed by us at our New Johnsonville,
Tennessee facility; excluding all office clerical em-
ployees, metal control clerk, personnel
clerk/purchasing agent, plant manager, plant engi-
neer/maintenance superintendent, production techni-
SCEPTER INGOT CASTINGS 1511
cal manager, cast house general foreman, rotary
general foreman, all working foremen, professional
employees, guards and supervisors as defined in the
Act.
WE WILL NOT announce and unilaterally implement
changes in wage rates and employee insurance benefit
plans.
WE WILL NOT unilaterally implement changes in the
working rules imposed on you.
WE WILL NOT discharge you pursuant to policy
changes in work rules which were implemented unilater-
ally without notice to the Union and without affording
the Union the opportunity to bargain over such changes.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the
exclusive representative of the employees in the appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement.
WE WILL, on request by the Union, rescind the early
October 1995 changes in pay rates for unit employees,
the changes in the medical insurance coverage and the
contribution required by employees toward premiums,
the November 17, 1995 policy statement concerning put-
ting steel in the furnaces, and the requirement that em-
ployees sign such policy statement.
WE WILL, within 14 days from the date of the
Board’s Order, offer Stephen L. Merrell full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Stephen L. Merrell whole for any
loss of earnings and other benefits resulting from his
unlawful discharge on November 17, 1995.
WE WILL, within 14 days from the date of the
Board’s Order, remove form out files any reference to
the unlawful discharge of Stephen L. Merrell and WE
WILL, within 3 days thereafter, inform him that this has
been done and that the discharge will not be used against
him in any way.
WE WILL make employees whole for any expenses
ensuing from out unilateral changes in medical insurance
coverage and contributions.
SCEPTER INGOT CASTINGS, INC.
Rosalind Thomas, Esq., for the General Counsel.
Ronald G. Ingham, Esq. and John Y. Elliott III, Esq. (Miller &
Martin), of Chattanooga, Tennessee, for Respondent Scep-
ter.
Carroll M. Cate, Dist. Rep. (Iron Workers), of Dandridge, Ten-
nessee, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is a
withdrawal of recognition case. Finding in favor of the Gov-
ernment, I further find that Scepter unlawfully withdrew recog-
nition from the Union about October 1, 1995, and that the uni-
lateral changes Scepter thereafter implemented also were
unlawful. I also find that, as a result of one unilateral change,
Scepter unlawfully discharged Charging Party Stephen L.
Merrell. I order Scepter to offer full and immediate reinstate-
ment to Merrell and to make him whole, with interest.
I presided at this 2-day trial in Nashville, Tennessee on No-
vember 18–19, 1996. Trial was pursuant to the April 25, 1996
order consolidating cases, consolidated complaint, and notice of
hearing (complaint) issued by the General Counsel of the
NLRB through the Regional Director for Region 26 of the
Board.
The complaint is based on a charge filed November 30, 1995
(and amended on March 13, 1996), by Stephen L. Merrell
(Merrell) against Scepter Ingot Castings, Inc. (Scepter) in Case
26–CA–17161, and on a charge filed in Case 26–CA–17345 on
March 21, 1996, against Scepter by Shopman’s Local No. 733,
of the International Association of Bridge, Structural and Or-
namental Iron Workers, AFL–CIO, (Union or Local 733).
Although Merrell’s original charge appears to be by him as
an individual (and does not expressly list Section 8(a)(5)), his
amended charge, in 26–CA–17161, names the Union as the
Charging Party, with Merrell signing as “Committeeman.”
Even if Merrell’s charge is treated as being by him in his indi-
vidual capacity, as the complaint does, there is no pleading
problem with his filing an 8(a)(5) charge, for anyone may file a
charge. M. J. Santulli Mail Services, 281 NLRB 1288, 1296
(1986). Indeed, if a union did not act, employees could be left
without protection if they could not file 8(a)(5) charges, at least
as to unilateral changes adversely affecting unit employees.
The pleadings establish that the Union was certified on May
7, 1993 as the exclusive collective-bargaining representative,
under Section 9 of the Act, of the employees in the following
bargaining unit:

All production and maintenance employees, shipping and
receiving department employees, laboratory technician,
and custodians employed at Scepter Ingot Castings’ New
Johnsonville, Tennessee facility; excluding all office cleri-
cal employees, metal control clerk, personnel
clerk/purchasing agent, plant manager, plant engi-
neer/maintenance superintendent, production technical
manager, cast house general foreman, rotary general fore-
man, all working foremen, professional employees, guards
and supervisors as defined in the Act.

As stipulated by the parties (1:8),1 on April 29, 1993, a
Board-conducted election was held for the employees in the
unit described above, and the Union won.
The parties also stipulated (1:9–11) that the unit description
set forth above inadvertently included “laboratory technician,”
but was certified with that classification included. During con-
tract negotiations, the parties agreed that the classification of
laboratory technician should be excluded. I find that the

1 References to the two-volume transcript of testimony are by volume
and page. Exhibits are designated GCX for the General Counsel’s and
RX for Respondent Scepter’s.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1512
agreed-on unit description, which does not include the classifi-
cation of laboratory technician, describes an appropriate bar-
gaining unit within the meaning of Section 9 of the Act.
The complaint alleges, and Scepter denies, that at all times
since May 7, 1993, based on Section 9(a) of the Act, the Union
has been the exclusive collective-bargaining representative of
the unit employees. Actually, the correct date for the allegation
is that of the election, April 29, 1993, for the bargaining obliga-
tion, in the sense of no unilateral changes, attaches as of the
Union’s election victory, and then ripens into plenary status
with the certification. Kirkpatrick Electric Co., 314 NLRB
1047, 1049 (1994).
In the Government’s complaint, the General Counsel alleges
that Respondent Scepter violated Section 8(a)(5) of the Act by,
about October 3, 1995,2 unilaterally changing wage rates and
employee insurance benefit plans, by withdrawing recognition
from the Union about October 4, by unilaterally changing,
about November 17, respecting work policy and discipline of
employees when steel is found in Scepter’s furnaces, and dis-
charging, about November 17, 1995, Charging Party Merrell
pursuant to the unilateral changes. By its answer, Scepter de-
nies.
For an affirmative defense, Scepter pleads that the Union
“has abandoned its collective bargaining status.” On brief,
Scepter concedes that it “lawfully withdrew recognition from
the Union at a point when it had a good faith, reasonable doubt
that the Union enjoyed the support of a majority of the bargain-
ing unit employees at the New Johnsonville facility.” (Brief at
2). Further (Brief at 13):

Scepter does not dispute the fact that it gave all employees
a wage increase and amended its group health care plan on
or about October 3, 1995, without negotiating with the Un-
ion. Likewise, Scepter does not dispute the fact that it re-
quired all employees to sign an acknowledgment stating
that they were aware of Scepter’s policy concerning steel
banding in the furnaces without negotiating with the Un-
ion. However, by the time these activities were under-
taken by Scepter, it was aware of the Union’s minority
status and had withdrawn its recognition of the Union as
the exclusive bargaining representative of the employees
at the New Johnsonville facility.

Scepter therefore admits withdrawing recognition from the
Union by no later than about October 1, 1995. I so find, and I
shall use October 1, 1995, as the date of that withdrawal of
recognition.
Scepter is a corporation with an office and place of business
in New Johnsonville, Tennessee, where it manufactures and
sells aluminum ingots. The pleadings establish that the Board
has both statutory and discretionary jurisdiction over Scepter,
and that Scepter is an employer engaged in commerce within
the meaning of the statute. The parties stipulated (1:8) that
Local 733 is a statutory labor organization.
For witnesses, the General Counsel called Carroll M. Cate, a
district representative for the International Association of
Bridge, Structural and Ornamental Iron Workers (1:58); Wil-
liam Charles Davidson, a unit employee and member of the
Union’s bargaining committee until late 1995 (1:114); and
Charging Party Merrell (2:225). The General Counsel then
rested (2:278). Scepter then called Stephen Whitehead, for-

2 All dates are for 1995 unless otherwise indicated.
merly Scepter’s plant manager who now works for an employer
in Oklahoma (2:279–280); Penney Hensley, a former employee
of Scepter who also served on the Union’s bargaining commit-
tee through the 22 bargaining sessions (2:313–315); Joseph
Hooper, a member of the bargaining unit (2:326; RX 7); and
Ronald G. Ingham, Scepter’s attorney and chief spokesman for
Scepter at the collective-bargaining sessions (2:280, 333–334).
Scepter then rested (2:395). There were no rebuttal witnesses.
My decision is based on the entire record, including my ob-
servation of the demeanor of the witnesses, and after consider-
ing the briefs filed by the General Counsel and Respondent
Scepter. The General Counsel attached to the Government’s
brief a proposed order and proposed notice to employees. (The
Board’s rules do not require that briefs to the judges contain a
table of contents and a table of authorities cited, and Scepter’s
brief does not contain these aids.)
FINDINGS OF FACT
A. The Issue of Scepter’s Good-Faith Doubt
1. The 22 bargaining sessions
District Representative Carroll Cate served as the Union’s
chief negotiator in the 22 bargaining sessions which began July
22, 1993, and ended with the meeting of May 4, 1995. Assist-
ing Cate on the Union’s bargaining committee were three to
four unit employees. (1:60). Scepter’s bargaining committee
consisted of Attorney Ronald Ingham, chief spokesperson, and
Plant Manager Steve Whitehead, although for the first three or
four meetings President Garney Scott also attended. (2:280–
281).
The 22 formal bargaining sessions were spaced as follows
(RX 8): 7 in 1993, 12 in 1994, and 3 (two in mid-January and
the final one on May 4) in 1995. There is no dispute that, over
the course of the 22 bargaining sessions, the parties reached
agreement on a substantial number of issues. An exhibit in
evidence (RX 9) shows over two dozen articles tentatively
agreed to, with 10 items open—including such matters as hours
of work, overtime, seniority, checkoff, grievance-arbitration,
and strikes/lockouts. Respecting checkoff, Cate (2:201–202)
and Ingham (2:373) agree that Ingham told Cate at the last
meeting, on May 4, that if the parties reached a contract, Scep-
ter would give checkoff.
As to some of the open items, Cate and Ingham tentatively
agreed on them at two off-the-record, or informal, meetings at
Ingham’s Chattanooga, Tennessee office about December 4
1994, and January 10, 1995. (1:65; 2:346–348; RX 9). As the
list of tentative agreements (RX 9) reflects, other than about
seven topics agreed to at the December 1994 informal meeting,
virtually all other tentative agreements were reached during
1993. All may have been, but the list does not show dates for
three topics—items 35, 36, 37. (RX 9 at 2).
Scepter’s preliminary complaint is that negotiations dragged
during 1994 and 1995 because the Union’s bargaining commit-
tee, especially Cate, would waste time talking about matters
unrelated to the bargaining. For example, Penney Hensley, one
of the original members of the Union’s committee, testified (as
a witness called by Scepter) that she became troubled by the
progress of the negotiations, concluding there was a “stale-
mate,” that “We weren’t getting anywhere,” and that she was
just wasting her time. (2:315, 324). Hensley expressed this
opinion to Plant Manager Whitehead on two or three occasions,
beginning about the summer of 1994, and during the time of the
contract negotiations. She also told Whitehead that she felt that
SCEPTER INGOT CASTINGS 1513
the Union had no standing, was not functioning, and that the
employees no longer wanted the Union to represent them.
(2:315–316, 321-322). [Whitehead recalls only that Hensley
said, by late August 1995, that the Union “was done.” (2:286).]
Similarly, on three or four occasions of casual conversations,
beginning about the summer of 1994, Hensley also told Presi-
dent Garney Scott, that no one was interested in the Union.
(2:318, 323). In August 1995, Hensley took the position of
personnel clerk, a job outside the bargaining unit. (2:316, 324-
325). As of the trial, Hensley was employed with another com-
pany. (2:314).
Clearly the parties were taking a very long time to negotiate
a contract. Nevertheless, progress, however slow, was still
being made as of the final meeting on May 4, 1995. Thus, as
earlier noted, checkoff was removed as an issue if the parties
reached an overall contract. Ingham concedes that the parties
discussed arbitration, with Ingham, apparently for the first time,
proposing loser-pay arbitration. Cate declined that suggestion,
and countered that the Union would give in on working fore-
man if Scepter would agree on (the Union’s proposal for) arbi-
tration. Ingham declined. (2:372). Despite over 4 hours of
apparent serious discussion of the outstanding issues (plus one
15-minute span when Cate talked about slot machines, 2:372),
no tentative agreements were reached other than the checkoff
item. As Ingham did not have his calendar, no new meeting
date was set. (2:373).
2. Events from May 4, 1995 to October 1995
Cate called Ingham several times after the May 4 meeting,
into June 1995, and Ingham returned some of these calls, but
one or the other person was never available. (1:72; 2:185-187).
Cate then sent a letter (GCX 5), dated June 5, asserting that he
had left dates on Ingham’s voice mail and with Ingham’s secre-
tary, asking for Ingham to respond with dates of availability.
When Cate received no response, he called again about half a
dozen times until about mid-July, at which time he ceased call-
ing. Cate received no response to the messages he left. (1:75-
79). Although Cate’s pretrial affidavit shows that the represen-
tatives played “telephone tag” to June 5, with no reference to
calls thereafter, that date apparently was in reference to the date
of his June 5 letter. This is so because Ingham’s own tele-
phone-message records, of messages taken by Ingham’s secre-
tary, show that Cate called on June 23. (RX 16; 2:388). In any
event, Ingham, who concedes (2:390) that he was to contact
Cate after the May 4 meeting with a suggested date for the next
meeting, admits (2:390) that he never thereafter contacted Cate
regarding a future meeting date. I credit Cate’s version that,
after waiting in vain for 2 to 3 weeks for a response to his June
5 letter, he resumed calling Ingham’s office and did so until
about mid-July. Cate received no response to these calls.
(1:79).
Cate did receive a response to his request for a list of em-
ployees in the bargaining unit. This request apparently was by
telephone in late June, for by letter dated June 30 (RX 3), Ing-
ham forwarded to Cate a list, as of June 29, 1995, of Scepter’s
hourly employees, with addresses, telephone numbers, and hire
dates. Cate concedes that he took this seniority list [the names
are in alphabetical order and not listed by seniority date] and
inspected it to determine who was still employed and who had
been hired after the April 29, 1993 election. (2:193–194).
Although the record is not entirely clear on the matter, I infer
from Cate’s description of the document as a seniority list, and
the fact that the General Counsel did not object, that the
“hourly” employees listed comprise the bargaining unit as of
June 29, 1995. The list has 70 names. Ingham testified that
such number was the peak employment at the facility. (2:383).
As an inspection of the list discloses, of the 70 names listed,
51 (or about 72.9 percent) were hired after the election of April
29, 1993. Scepter argues (2:192; Brief at 8) that the list, and
Cate’s inspection of it, demonstrates that Cate recognized that
he no longer had the following among the bargaining unit that
he once had. In July 1995 Cate met with three members of the
Union’s bargaining committee, and he continued to make sev-
eral calls a week to Steve McBride, who functioned as the lead-
person of that committee. [Sadly, McBride was killed in an
automobile accident in late October.] Cate’s next contact with
Scepter was by letter dated October 3, 1995 to (President) Gar-
ney Scott, copy to attorney Ingham, the text of which reads
(GCX 6):

Despite my letter to your attorney, Ron Ingham, a few
weeks ago and numerous phone calls concerning dates for
negotiations, I have not received any response whatsoever.
Therefore, I will direct my letter to you requesting
several dates for negotiations with your Company. I will
also offer you dates of October 19, 20, 30 and 31 and also
November 1 and 2.
I am looking forward to resuming negotiations and
hope to receive a response as soon as possible.

Cate credibly testified that he received no response to this
letter. (1:82; 2:197, 211). At the October 31 wake for Steve
McBride, Cate briefly told Plant Manager Whitehead that he
would like to resume negotiations. Whitehead said that Cate
needed to contact Ingham. Cate’s additional version, which I
credit, is that he said he had already written letters without
success. (1:83; 2:211–212, Cate; 2:283, Whitehead). Accord-
ing to Ingham, Whitehead, or someone in management, told
him that Cate, at the funeral home, had made a comment about
needing to “get together,” with no suggestion as to dates. “We
simply took it as just an idle sort of comment.” (2:375). Of
course, there was nothing “idle” about Cate’s letter of October
3, and the letter suggests dates. And that takes us to the issue
which, as framed by witness Ingham (2:391), is whether Scep-
ter had a legal obligation to meet and bargain with the Union.
3. The question of Scepter’s good faith belief
In addition to Hensley’s testimony about her 1994–1995
statements to Plant Manager Whitehead and to President Scott,
Scepter contends that management heard rumors that a petition
was circulating among employees to decertify the Union. At-
torney Ingham testified that “at a point in time” he heard that
there had been a petition, signed by a significant number of
employees, to, apparently, decertify the Union. (2:374). Ing-
ham does not specify a time. However, his statement follows
his testimony that from early June 1995 to late fall 1995 both
Whitehead and Scott had told him there was inadequate support
for the Union, apparently basing their statements on expres-
sions made to them by Penney Hensley. (2:374). Ingham’s
source for all his information came from Scott, Whitehead,
Vice President Lynn Jackson, and unnamed supervisors.
(2:294–295, 389).
Actually, circulation of the petition to remove the Union was
not begun until late 1995 to early 1996. Such was the testi-
mony of furnace operator Joseph Hooper. (2:329). Thus, al-
though some 37 to 40 employees signed the petition during the
week that it was circulated (2:328, 330, 332), it is clear that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1514
such occurred after October 1, 1995, because Hooper specifi-
cally recalls that it came after the [November 17] discharge of
Stephen Merrell. (2:331). Plant Manager Whitehead testified
that the first time he heard about an employee petition was at
the trial. (2:286). Hooper testified that the week-long circula-
tion effort was done outside the view of management. (2:330).
I find that the time estimates by Hensley of about October 1995
when she heard about the petition (2:317), and “early ‘95” by
Charles Davidson (2:158–159), are faulty recollections brought
about by the passage of time. The parties stipulated that no
such petition was ever filed. (1:139). Ingham testified that no
petition was ever presented to Scepter. (2:391). Hooper testi-
fied that the petition effort died when Kenneth Melton, who
drafted and maintained custody of the petition, was laid off.
(2:329–331).
On brief, Scepter relies on the petition to decertify, not as
one more factor supporting its good-faith belief (since no peti-
tion was ever filed or presented to Scepter), but, rather, as evi-
dence which confirms that its October 1, 1995 good-faith belief
was justified. (Brief at 20–21). However, as the petition did
not circulate until well after Scepter’s (unlawful, as I find) Oc-
tober 1 withdrawal of recognition, then it is presumed that it
resulted from the unlawful acts. Lee Lumber & Building Mate-
rial Corp., 322 NLRB 175 (1996).
Finally, Scepter argues that employee turnover is a factor
supporting the withdrawal of recognition when the factor sup-
plements “other objective considerations.” (Brief at 19). Pass-
ing for the moment the question of whether there were other
“objective” considerations as of October 1, 1995, I first con-
sider the turnover matter.
As already noted, the June 29, 1995 seniority list reflects
that, as of that date, some 72.9 percent of the bargaining unit
had been hired since the April 29, 1993 election. The seniority
list of November 12, 1996 (RX 7) reflects that, by that date, the
bargaining unit had dropped to 45 employees, with only 14 of
the 45, or 31.1 percent, having a seniority date earlier than the
election of April 29, 1993. As Scepter acknowledges, under
Board law new hires are presumed to support the bargaining
representative in the same ratio as those whom they have re-
placed.
Scepter’s problem is that it has no sufficient objective evi-
dence that a majority of unit employees did not, as of Octo-
ber 1, 1995, want the Union to represent them. The closest
Hensley’s remarks come to that is her statement that she told
Plant Manager Whitehead that she, Hensley, “felt like” the
employees no longer wanted the Union to represent them.
(2:322). That expression of her opinion, plus her opinion, as
Whitehead recalls, that the Union was “done,” fall far short of
the objective evidence that bargaining unit employees them-
selves are expressing a desire that the Union leave. Attorney
Ingham’s testimony (2:373–374, 388–390) regarding alleged
employee dissatisfaction, aside from being hearsay reports from
management, is nothing more than his generalized belief that
the Union did not represent a majority of the bargaining unit.
In short, I find that Scepter has not carried its burden of
proving that, as of October 1, 1995, it had a good-faith doubt,
founded on a sufficient objective basis, that the Union lacked
majority status. See NLRB v. Curtin Matheson Scientific, 494
U.S. 775 (1990). Scepter’s evidence must be “clear, cogent,
and convincing.” Torch Operating Co., 322 NLRB 939, 943
(1997). Coming nowhere near reaching that standard, the evi-
dence fails even to get over the scintilla “hurdle.” Accordingly,
I find that, as alleged, Respondent Scepter violated Section
8(a)(5) of the Act when, about October 1, 1995, it withdrew
recognition from the Union as the exclusive collective-
bargaining representative of the employees in the bargaining
unit. I therefore shall order Scepter, on request, to recognize
the Union and to bargain with the Union.
B. The Unilateral Changes
1. Wage rates and medical insurance
a. Facts
Complaint paragraph 11 alleges that, about October 3, 1995,
Scepter, at an employee meeting at its facility, “announced
changes in its wage rates and its employee insurance benefit
plans.” By its answer, Scepter denies. Scepter should have
admitted the factual allegation.
As Scepter makes clear on brief (Brief at 9), there is no dis-
pute that, effective October 1, 1995, Scepter made “several
changes, modifications, and amendments to the Scepter group
health care plan. (GCX 3).” Before October 1995 employees
did not have to contribute under Scepter’s health care plan, for
Scepter paid it all. (1:129–130, Davidson). As provided in one
(GCX 2) of the papers, dated October 4, 1995, a one-page
memo (with one-page attachment of new pay scales) addressed
to all Scepter employees from (Vice President and General
Manager) Lynn Jackson, and distributed to all employees about
that day or the day before (1:131), and as Plant Manager
Whitehead told the employees in shift meetings that day, em-
ployees would begin contributing from $19 to $24 a month for
medical insurance coverage effective October 1, 1995. (More-
over, substantive changes were made in the coverage.) During
the contract negotiations, Scepter had not proposed such
changes. (1:130).
“To help offset” the new contribution now required from
employees, Jackson’s October 4 memo advises, a general in-
crease of 15 cents per hour was granted effective October 2,
1995. Davidson testified that his wage increase was 40 cents
per hour. (1:130). Charging Party Merrell testified about the
October notification, but does not specify the amount of his
raise. (2:231). If Davidson indeed received 40 cents, that pos-
sibly included a merit increase as well as the general increase of
15 cents. No evidence disputes the changes, and witness Ing-
ham testified that Scepter did not give the Union prior notice of
the insurance changes and general wage increase. (2:387).
This confirms Union Representative Cate’s testimony. (1:89–
90). Although Ingham had told Cate, during one of the two
December 1994–January 1995 informal meetings, that Scepter
wanted to have employees contribute toward their medical
insurance premiums, and Cate there replied that he was willing
to negotiate on the matter, there was no discussion of specific
figures or ratios. (2:221, 223).
Similarly, respecting wages, at one of the informal meetings
Ingham proposed a 5-year contract with a 3-percent raise each
year. Cate rejected that proposal as inadequate. (1:86; 2:202).
The subject of raises was never mentioned before the full bar-
gaining committee. (1:121, 130-131; 2:323).
b. Discussion
Given the lack of dispute that Scepter made the unilateral
changes, as alleged, what is Scepter’s defense? Aside from
Scepter’s assertion that the changes were lawful because Scep-
ter, as of October 1, 1995, no longer had a duty to recognize
and to bargain with the Union—an affirmative defense which, I
SCEPTER INGOT CASTINGS 1515
already have found, has no merit—Scepter advances the claim
that the Union “waived” its right to bargain. Scepter’s waiver
argument (Brief at 21) begins with Union Representative Cate’s
testimony that he learned of the changes, including the wage
increase, about October 3, when employee Steve McBride
called and told him. (1:90; 2:207). Thereafter Cate did not
serve a demand on Scepter on this specific subject, and even
waited over 5 months before filing the unfair labor practice
charge in Case 26–CA–17345. As Cate recalls, with some
uncertainty, he already had mailed his letter (GCX 6) of Octo-
ber 3 to (President) Garney Scott requesting a resumption of
negotiations and suggesting dates. (1:90-92; 2:207–208).
Cate’s October 3 letter makes no reference to the unilateral
changes. Cate sent no follow-up letter specifically referencing
the unilateral changes and demanding that Scepter bargain over
them. Cate waited over 5 months before he filed the Union’s
unfair labor practice charge in Case 26–CA–17345 attacking
the unilateral changes. Charging Party Merrell’s March 13,
1996 amended charge in Case 26–CA–17161 makes clear that
Merrell alleges that his discharge was the result of his refusal to
sign a form that came from a unilateral change in terms and
conditions of employment.
Cate explains his 5-month delay in filing the Union’s unfair
labor practice charge on the basis that he knew he had 6 months
in which to file a charge. (1:92; 2:208–209). The General
Counsel contends there is no evidence of waiver. (Brief at 27).
Respondent’s waiver argument is without merit. When
Scepter made its unilateral changes, effective October 1–2,
1995, with no prior (or even post) announcement to the Union,
the Union—when it did learn—was faced with a fait accompli.
Accordingly, the Union was not required, before filing its un-
fair labor practice charge, to seek to bargain with Scepter and to
persuade Scepter to reverse the fait accompli. As of the fait
accompli, Scepter had violated the Act. Formosa Plastics
Corp., 320 NLRB 631, 651 (1996); Intersystems Design Corp.,
278 NLRB 759, 760 (1986). I therefore shall order Scepter, on
request, to meet and bargain with the Union on these changes.
Should the Union insist that Scepter rescind the unlawful
changes, Scepter must do so.
2. Steel banding policy
a. Facts
Complaint paragraph 12 alleges, and Scepter denies, that
about November 17, 1995, Scepter “changed its work policy
regarding discipline of employees when steel was found in its
furnaces, and required all employees to sign this policy.” Para-
graph 15 alleges that about November 17 Scepter fired Charg-
ing Party Merrell pursuant to the changed policy described in
paragraph 12. Scepter denies.
Much of the evidence here is undisputed. For years Scepter
has experienced a problem with steel banding finding its way
into the furnaces. Steel banding in the molten aluminum will
produce inferior, or off-grade, aluminum. It is a costly problem
for Scepter. For years supervisors usually have told employees
not to put steel bands into the furnaces. There is no evidence,
however, that anyone had ever been disciplined for doing so
before November 1995. [After the events at issue here, a su-
pervisor was fired for allowing his crew to place steel bands in
a furnace. (2:166–167, 271, 308, 312).] On occasion, in the
past, to assist in charging a furnace, or even to add weight, a
supervisor would tell employees to allow the steel banding to
go into a furnace. (2:229, 248, 249, 253, Merrell).
Nevertheless, it is clear that the general rule was that em-
ployees were not to put steel banding into the furnaces. There
is no dispute that, before October 1995, no specific penalty was
attached to the conduct of placing steel into a furnace. There is
some dispute whether the problem became worse during 1993–
1994, with W. Charles Davidson testifying No (2:164), and
(former) Plant Manager Whitehead testifying Yes (2:287, 307–
308). In crediting Davidson, I note that Scepter never raised
the subject of steel banding in the furnaces during the bargain-
ing negotiations, even though work rules were mentioned.
(1:93, 136–137:2:214–215, 223).
About mid-October 1995, Plant Manager Whitehead posted
a notice (no copy in evidence) to all employees telling them
that they were not to place steel banding into the furnaces. In
this memo, Whitehead warned employees that anyone disobey-
ing the notice would be subject to discipline, including dis-
charge. (2:228–229, 244, 248–249, Merrell; 2:288–290,
Whitehead). Because the notice helped alleviate the problem
only temporarily, on November 17 Scepter ordered employees
to sign a written policy statement. The text of the written
statement initially presented to some employees, including
Charging Party Merrell (2:226–227), reads (GCX 4):

I understand that putting steel (e.g., banding) in any fur-
nace is absolutely prohibited. I realize that I am subject to
immediate discharge if I am ever caught doing so. Addi-
tionally, if I knowingly and willfully allow others to do so,
I am subject to the same action.

In part because the wording of the foregoing statement is
ambiguous in terms of what burden is placed on an employee
resulting from actions by others, Whitehead revised the state-
ment to read (2:306–307; RX 5):

I understand that putting steel bands in the furnace is abso-
lutely prohibited. I realize that I am subject to immediate
discharge if I am ever caught doing so. Additionally, I am
aware that if I see someone else putting steel bands in the
furnace and attempt to conceal the fact, I am subject to the
same action.

There is no dispute that Charging Party Merrell refused to
sign. There is a dispute over which document Merrell was
tendered when he eventually was taken before Whitehead and
told that he must sign it as a “job duty” or “job instruction.”
Merrell adheres to his view that it was GCX 4 (2:255–257,
268), whereas Whitehead asserts that it was the revised form,
RX 5 (2:290–294, 297, 305, 307). As Merrell’s objections (he
could not be responsible for others, and he could not see what
was inside a bale of material) remained the same that day, and
as there is no evidence Whitehead explained that the form he
was presenting was a revised version, I find it more likely that
Merrell is correct in his recollection, and I credit him.
When Merrell asked Whitehead what he meant by a “job
duty” (2:227–228, 269) or “job instruction” (2:297, 305),
Whitehead said he had no further explanation. (2:227–228,
297). Whitehead did not tell Merrell he could be fired if he did
not sign because he thought that would be considered a threat.
(2:297). When Merrell refused, Whitehead told him that he
was terminated. (2:238, 270). Merrell was then processed out,
with Whitehead filling out the Separation Notice (GCX 7) pro-
viding that Merrell was discharged for “Failure to follow in-
structions.” Merrell understood this to refer to his failure to
comply with the order to sign the statement about not putting
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1516
steel into the furnaces (2:245–246), and that is the explanation
which Scepter gave at Merrell’s ensuing unemployment com-
pensation hearing (2:266, 394).
Although Whitehead asserts (2:296) that Merrell was termi-
nated under Scepter’s longstanding written rule making an
employee subject to immediate discharge for insubordination
(GCX 8 at 12), the written rules (GCX 8) make no reference to
placing steel in the furnaces. Moreover, Whitehead acknowl-
edges that, before November 17, 1995, the policy statement in
issue was not a condition of employment. (2:308). Whitehead
admits he never furnished a copy of the document to the Union
(2:309), even though he knew at the time that the Union wanted
to resume negotiations (2:310–311).
b. Discussion
Aside from Scepter’s waiver argument, which, I find, has no
merit, for the same reasons expressed in relation to the wage
rate and medical insurance benefit changes, Scepter defends on
the ground that the change was not material, substantial, and
significant3 because the October posting merely reduced to
writing a longstanding policy, citing cases such as Bellevue
Memorial Park, 309 NLRB 401, 405 (1992) (longstanding rule
of discharge for theft reduced to memo—no significant
change). The situation is different here, however, because
Whitehead’s posted notice specifically warned of possible dis-
cipline, including discharge.
But, Scepter further argues, even establishing the penalty of
discharge is not an unlawful change because it merely adds a
specific sanction, or level of discipline, for a work-rule viola-
tion, as opposed to an entirely new work rule. Scepter cites
cases such as La Mousse, 259 NLRB 37, 49–50 (1981). The
General Counsel cites no cases concerning a unilateral imposi-
tion of a penalty for violation of a preexisting work rule.
There is no dispute that, for the most part, a work rule ex-
isted here orally—Don’t load steel banding into the furnaces.
While no discipline was ever imposed before October 1995 for
doing such, and no discipline of any kind had ever been men-
tioned, the Employee Handbook has a written disciplinary sys-
tem. Rule A.8 provides that an employee “may” suffer imme-
diate discharge if he does “Deliberate damage to company
property. . . .” (GCX 8 at 12). Rule B.1. (GCX 8 at 12) prohib-
its the waste or abuse of materials, and provides that a violation
of this rule can lead to discharge on a second offense. How-
ever, Scepter never relied on these rules—and probably for
good reason. As to the first, there is evidence that in some
situations in the past supervisors have told employees to load
the steel banding into a furnace. An employee could argue that
the supervisor told him, or that he thought he was merely doing
some good because in the past a supervisor had told him to do
it. The same situation would apply to any effort to use the sec-
ond rule.
Thus, while Scepter’s preexisting written work rules may be
broad enough to be interpreted so as to cover putting steel into
the furnaces, the rules were never invoked for that in the past,
and Scepter does not rely on them. That is why, apparently,
Scepter felt a need for Plant Manager Whitehead to post his
October 1995 warning. The complaint does not attack White-
head’s October warning. The complaint does attack the No-
vember 17, 1995 action, of formalizing what before had been
an informal rule honored in the past by an occasional exception

3 See Peerless Food Products, 236 NLRB 161 (1978).
by a supervisor. The situation is rather similar to that in Sygma
Network Corp., 317 NLRB 411, 417 (1995), where the new
rule required discharge for a violation, but before the unilateral
change there was no such requirement.
Not only was the formalization a unilateral change by (1)
converting the previous informal and occasional rule to a writ-
ten policy statement which would apply at all times, contrary to
past practice, but (2) the element of discipline was made an
important part of the rule, contrary to the past practice, and (3)
employees had to sign as a condition of employment, an admit-
ted change from past practice. Moreover, the policy statement
itself, in the version (GCX 4) presented to some, including
Charging Party Merrell, is ambiguous at best and dangerous at
worst. That first statement (GCX 4) at worst could be inter-
preted as requiring an employee to physically intervene to stop
another employee who is about to put steel into a furnace—
something never required under the past practice. Such inter-
pretation, of course, could create a dangerous confrontation
right at the furnaces themselves. Had Scepter not unlawfully
deprived unit employees of their lawful bargaining representa-
tive, Scepter would first have presented this ambiguous and
potentially dangerous statement to the Union.
Instead, without the benefit of union representation, and
without the help of a union representative to point out the am-
biguity, with its potential for a dangerous interpretation, and
negotiate for a document which would clearly describe the past
practice, Charging Party Merrell had to represent himself in the
pressure-cooker atmosphere of a direct order from the plant
manager. Congress outlawed Scepter’s unilateral and heavy-
handed style in 1935, as amended in 1947. It follows, and I
find, that Scepter’s discharge of Charging Party Merrell, be-
cause he refused to sign General Counsel Exhibit 4, violated 29
USC 158(a)(5). I shall order Scepter to offer full and immedi-
ate reinstatement to Merrell and to make him whole, with inter-
est. Sygma Network Corp., 317 NLRB 411 fn. 1, 417 (1995).
Respecting the second policy statement (RX 5), Scepter must
revoke it as well as the first statement (GCX 4), which some
employees at the beginning apparently signed. This is so be-
cause the revised version (RX 5) suffers from most of the same
faults as the first one even though it may be less ambiguous and
not contain the potential for danger that the first one does.
Discipline was added as an important component, and the situa-
tion, by the statement, is converted into a formalized rule
whereas before there was an informal policy with noted excep-
tions and no discipline.
CONCLUSIONS OF LAW
(1) Based on the record, I find that the Board has statutory
and discretionary jurisdiction; that Respondent Scepter is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act; that Local the Union is a statutory
labor organization; that Scepter violated Section 8(a)(5) and (1)
of the Act, and that Scepter’s violations have affected and,
unless permanently enjoined, will continue to affect commerce
within the meaning of Section 2(6) and (7) of the Act.
(2) At all times since April 29, 1993, the Union has been and
is the exclusive representative of all the employees in the ap-
propriate unit set forth below for purposes of collective bar-
gaining with respect to wages, rates of pay, hours of employ-
ment, and other terms and conditions of employment within the
meaning of Section 9(a) of the Act:

SCEPTER INGOT CASTINGS 1517
All production and maintenance employees, shipping and
receiving department employees, laboratory technician
and custodians employed at Scepter Ingot Castings’ New
Johnsonville, Tennessee facility; excluding all office cleri-
cal employees, metal control clerk, personnel
clerk/purchasing agent, plant manager, plant engi-
neer/maintenance superintendent, production technical
manager, cast house general foreman, rotary general fore-
man, all working foremen, professional employees, guards
and supervisors as defined in the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Respondent Scepter having discharged an employee as a re-
sult of the unilateral changes imposed on November 17, 1995,
Scepter must offer the employee full reinstatement and make
him whole, with interest, and bargain with the Union over the
decisions and the effects of those decisions. The loss of earn-
ings and other benefits must be computed on a quarterly basis
from date of discharge to date of proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, Scepter Ingot Castings, Inc., New Johnson-
ville, Tennessee, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing or refusing to recognize and to bargain collec-
tively in good faith with the Union as the exclusive representa-
tive of all its employees in the unit described below.
(b) Unilaterally granting pay raises to bargaining unit em-
ployees without first consulting with the Union and offering the
Union the opportunity to bargain over the decision and the
effects of such pay increases.
(c) Unilaterally changing medical insurance coverage or
rates for bargaining unit employees without first consulting
with the Union and offering the Union the opportunity to bar-
gain over the decision and the effects of such proposed
changes.
(d) Unilaterally changing work rules without affording the
Union prior notice and an opportunity to negotiate and bargain
concerning the decision and the effects of such proposed
changes.
(e) Unilaterally requiring employees to sign a policy state-
ment reflecting the unilateral change in work rules.
(f) Discharging employees who refuse to sign the policy
statement reflecting the unilaterally imposed change in work
rules.
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Recognize and, on request, bargain with the Union as the
exclusive representative of the employees in the following ap-
propriate unit concerning terms and conditions of employment
and, if an understanding is reached, embody the understanding
in a signed agreement:

All production and maintenance employees, shipping and
receiving department employees, and custodians employed
at Scepter Ingot Castings’ New Johnsonville, Tennessee
facility; excluding all office clerical employees, metal con-
trol clerk, personnel clerk/purchasing agent, plant man-
ager, plant engineer/maintenance superintendent, produc-
tion technical manager, cast house general foreman, rotary
general foreman, all working foremen, professional em-
ployees, guards and supervisors as defined in the Act.

(b) Within 14 days from the date of this Order, offer Stephen
L. Merrell full reinstatement to his former job or, if that job no
longer exists, reinstatement to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights or
privileges previously enjoyed.
(c) Make Stephen L. Merrell whole for any loss of earnings
and other benefits suffered as a result of the unlawful action
against him, in the manner set forth in the Remedy section of
the decision.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Stephen L.
Merrell, and within 3 days thereafter notify the employee in
writing that this has been done and that the discharge will not
be used against him in any way.
(e) On request of the Union, rescind its November 17, 1995
policy statement prohibiting placing steel in furnaces and there-
after notify and, on request, bargain with the Union over the
decision to implement such a work rule and the effect of im-
plementing such a work rule and the requiring of employees to
sign it.
(f) If requested by the Union, rescind either or both of the
early October 1995 unilateral changes concerning wage rates
and medical insurance coverage, and thereafter notify and, on
request, bargain with the Union over the decision to implement
such proposed changes and the effects of such changes.
(g) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(h) Within 14 days after service by the Region, post at its
New Johnsonville, Tennessee facility copies of the attached
notice marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 26, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
5 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 National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1518
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since November 30, 1995 (the date the
original charge was filed and served in this proceeding).
(i) Within 21 days after service by the Region, file with the
Regional Director a sworn certification by a responsible official
of a form provided by the Region attesting to the steps that the
Respondent has taken to comply.