United States Steel Corp.

National Labor Relations Board - Board Decisions

Mar 31, 1986

279 N.L.R.B. 16 (N.L.R.B. 1986)

16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Steel Corporation and William Van
Swenson . Case 32-CA-4835
31 March 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 19 July 1983 Administrative Law Judge
Gerald A. Wacknov issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions and supporting briefs, and the General
Counsel filed a brief in reply to the Respondent's
exceptions.
The National Labor Relations Board has delegat-
ed 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, I and
conclusions and to adopt the recommended Order
as modified.2
i 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
In agreeing with the judge's finding that the Respondent's charactenza-
tion of Swenson as a "troublemaker" connoted union activity , we note
that it is the context in which the word "troublemaker " is used and not
the use of the word alone that imparts an unlawful connotation See, e g ,
Guarantee Savings & Loan, 274 NLRB 676, 679-680 (1985), Orba Corp.,
266 NLRB 917, 932 (1983). In the context of this case it is clear, as found
by the judge, that the Respondent 's use of the word was in reference to
Swenson 's grievance filing activities.
Contrary to the dissent, Swenson 's supervisor, Fox, did not approve
Swenson's transfer , Fox merely approved Swenson 's application for
transfer . Moreover, Fox explicitly recommended against the hiring of
Swenson when asked for a recommendation by Johnson , the Respond-
ent's foreman at the Pittsburg , California facility Further, although the
dissent states there is no direct evidence that Johnson had knowledge of
Swenson 's union activities, it is not necessary that Johnson himself have
personal knowledge of Swenson 's activities Rather , it is sufficient that
the General Counsel established that Johnson acted in reliance on Fox's
recommendation Thus, this is not a case of "mere suspicion" as the dis-
sent suggests
Regarding the unlawful interrogation found by the judge , we note,
contrary to the dissent , that Johnson did not merely recount to Black
Johnson's own recollection of their previous conversation Rather, John-
son asked Black what Black , remembered about the conversation and
then , when Black 's recollection differed from Johnson 's, Johnson reiterat-
ed his own version We find that, in the circumstances here, Johnson's
remarks, which were unaccompanied by any assurances against reprisal,
had a reasonable tendency to coerce Black in violation of Sec 8(a)(l)
2 The judge's recommended remedy provides that the Respondent
shall notify Swenson that it will "afford him an opportunity to apply for
reinstatement to its Pittsburg , California facility," while his recommended
Order directs that the Respondent "offer reinstatement " to Swenson Be-
cause the 8(a)(1) and (3) violation found here, as alleged in the complaint,
is the Respondent's refusal to employ Swenson at its Pittsburg plant, the
appropriate remedy is to offer him employment at that facility Accord-
ingly, we shall modify the recommended Order to reflect more closely
the violation found and to conform to the judge 's notice
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, United States Steel Corporation, Pitts-
burg, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
Substitute the following for paragraph 2(a).
"(a) Offer employment to employee William Van
Swenson at its Pittsburg, California facility, and
make him whole in the manner set forth in the
remedy section of the judge's decision. In this con-
nection , the Respondent shall preserve and on re-
quest make available to the Board or its agents, for
examination and copying, all records , including the
payroll records of other employees, necessary to
analyze and compute the amount of backpay due."
CHAIRMAN DOTSON, dissenting.
I disagree with my colleagues that the Respond-
ent rejected employee Swenson's application for
transfer because of his union and/or protected ac-
tivity, thereby violating Section 8(a)(1) and (3) of
the Act.
The pertinent facts are as follows: Swenson, the
Charging Party, was a machinist employed by Re-
spondent beginning in 1968 first at its facility in
Gary, Indiana, and later at Provo, Utah . Swenson
was laid off from the Provo facility in October
1981. Swenson was recalled shortly before being
laid off in October 1982. In May 1982, while still
on layoff status, Swenson applied for a transfer to
Respondent's facility in Pittsburg, California.
Swenson's transfer request was approved by Super-
visor Fox.
Swenson 's union activity involved serving as as-
sistant grievance committeeman for the Union from
May 1979 to June 1980, during which time he filed
16 grievances and 12 complaints on behalf of em-
ployees and discussed with his supervisor, Fox,
schedule changes which affected a number of em-
ployees. During the course of his employment with
the Respondent, Swenson received two repri-
mands . In September 1979 he received a reprimand
for incorrectly boring a hole. In June 1981 he re-
ceived a reprimand and a 2-day suspension from
Fox for faulty workmanship, which was subse-
quently removed from his record in settlement of
his grievance. At that time Fox, who was admitted-
ly disgruntled with the outcome of the grievance,
We shall leave to the compliance state of this proceeding the issue
whether the Respondent's backpay liability was tolled as of the date
Swenson entered the Armed Forces
279 NLRB No. 4
UNITED STATES STEEL CORP.
told Swenson that the suspension had been war-
ranted and the whole thing "was bullshit."
In May 1982 Swenson learned about vacant ma-
chinist positions at the Pittsburg plant from Black,
a machinist who worked at the Pittsburg facility.
When Swenson's application for transfer was de-
layed, Black, at Swenson's request, questioned his
supervisor, Johnson, to whom Swenson had sent
his application, concerning the application. Ac-
cording to Black, Johnson stated that he had
spoken to Fox and that Fox recommended that
Swenson not be hired because he was a "trouble-
maker." Johnson stated that he had no place for a
troublemaker at the Pittsburg facility and that
Black should tell Swenson to "clean up his act and
get his affairs in order, talk to his general foreman
and find out exactly what the problem is," and per-
haps reapply later. According to Johnson, Fox
stated during their conversation that although the
Gary facility had recommended Swenson to him as
one of their better machinists, Fox had problems
with Swenson's work and would not hire him
again . Johnson testified that he decided not to con-
sider Swenson on the basis of Fox's statement con-
cerning the poor quality of Swenson's work.
In my view, the evidence is insufficient to estab-
lish that Respondent rejected Swenson's applica-
tion for transfer on the basis of union and/or pro-
tected activity in violation of Section 8(a)(1) and
(3). Thus, there is no direct evidence indicating
that Johnson had any knowledge of Swenson's
union activity in making his decision not to hire
Swenson. Johnson and Fox both testified that
during their discussion concerning Swenson's work
performance, union activity was not mentioned,
and Black's testimony does not show that Johnson
referred to either union or protected concerted ac-
tivity. Furthermore, Johnson's reference to Swen-
son as a "troublemaker" does not necessarily con-
note that troublemaker was a reference to Swen-
son's union or protected concerted activities.' In
my view, the surrounding circumstances, including
the absence of any specific mention of such activi-
ties, Fox's approval of the transfer, and Johnson's
subsequent statement that Swenson should straight-
en things out with his supervisor and perhaps reap-
ply, do not support the conclusion that "trouble-
maker" was a reference to Swenson's union or pro-
' Although the Board in Orba Corp, 266 NLRB 917 (1983), acknowl-
edged that "troublemaker" was a familiar euphemism for a union sup-
porter, it found any unlawful connotation should be applied only after
consideration of the circumstances and context of the statement In Orba,
the Board held that "troublemaker" referred to a worker who would not
follow instructions and not for a union supporter The majority here, of
course, seeks to put the term into context which antedates by nearly a
year Fox's alleged use of it
17
tected concerted activities. Mere suspicions cannot
serve as a basis for finding a violation.2
In view of all the foregoing, the General Coun-
sel has not proven by a preponderance of the evi-
dence that the Respondent, in violation of the Act,
rejected Swenson's application for transfer because
of his union activities.
I also disagree with my colleagues' finding that
the Respondent coercively interrogated Black in
violation of Section 8(a)(1) of the Act.
The pertinent facts are as follows: Black testified
that on 25 April 1983, 3 days prior to the hearing,
Supervisor Johnson called him into his office. Ac-
cording to Black, Johnson told Black that he had
been subpoenaed to appear at the hearing and
asked Black what was going on. When Black re-
plied that he had also been subpoenaed, Johnson
asked if Black remembered what Johnson had said
during their conversation concerning Swenson.
Black said that he had given a statement to the
Board and initially told Johnson that he could not
help without divulging the nature of the statement.
Johnson then stated that he remembered discussing
Swenson's poor craftsmanship and work record,
whereupon Black responded that Johnson had only
related that Swenson was a "troublemaker." Black
testified that, although no assurances against repris-
als was given, he felt that none were necessary
concerning Johnson's open-door policy with the
employees.
In my view, the evidence does not establish a co-
ercive interrogation. Thus, it is clear that Johnson
did not actually ask Black any questions concern-
ing the subpoena or inquire into the content of
Black's statement to the Board. Rather, Johnson
merely recounted his recollection of his previous
conversation about Swenson with Black. Further-
more, it is clear the discussion occurred in a non-
coercive atmosphere. As noted by Black, Johnson
had an open-door policy with respect to employ-
ees, and Black himself felt no need for assurances
against reprisals . In these circumstances, Johnson's
remarks to Black would not reasonably tend to
coerce Black. Accordingly, I would find that the
Respondent did not violate Section 8(a)(1) and
would therefore dismiss the complaint in its entire-
ty.
2 See Kings Terrace Nursing Nome, 229 NLRB 1180 (1977), Internation-
a1 Computaprint Corp, 261 NLRB 1106 (1982)
Elaine D. Climpson, Esq, for the General Counsel.
Lee M. Pruett, Esq., of San Francisco, California, for the
Respondent.
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge.
Pursuant to notice, a hearing with respect to this matter
was held before me in Oakland, California, on April 28,
1983 . The initial charge was filed on September 3, 1982,
by William Van Swenson, an individual.
Thereafter , on November 22, 1982 , the Regional Di-
rector for Region 32 of the National Labor Relations
Board (the Board) issued a complaint and notice of hear-
ing alleging a violation by United States Steel Corpora-
tion (Respondent) of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act. The complaint was amended
at the hearing to allege an additional violation of Section
8(a)(1) of the Act.
The parties were afforded a full opportunity to be
heard, to call, to examine and cross-examine witnesses,
and to introduce relevant evidence. Since the close of
hearing, briefs have been received from the General
Counsel and counsel for Respondent.
On the entire record, and based on my observation of
the witnesses and consideration of the briefs submitted, I
make the following
1. JURISDICTION
Respondent is a Delaware corporation, with a facility
in Pittsburg, California, where it has been engaged in the
nonretail manufacture of steel products . Respondent, in
the course and conduct of its business operations, annual-
ly sells and ships goods or services valued in excess of
$50,000 directly to customers located outside the State of
California, and annually purchases and receives goods or
services valued in excess of $50,000 directly from suppli-
ers located outside the State of California.
It is admitted, and I find, that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that United Steelworkers of America,
Local 1440 is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are wheth-
er Respondent, in violation of Section 8(a)(1) and (3) of
the Act, refused to employ William Van Swenson at its
Pittsburg, California facility because of his union or pro-
tected concerted activity; and engaged in coercive inter-
rogation of an employee in violation of Section 8(a)(1) of
the Act.
B. The Facts
William Van Swenson was first employed by Respond-
ent in April 1968. He was continuously employed there-
after at various facilities of Respondent and became a
journeyman machinist in 1975. He was laid off from Re-
spondent's Provo, Utah facility in June 1980. He was
called back in October 1980 and was again laid off in
October 1981. About a year later he was recalled for a
third time and worked about a month before again being
laid off in late October 1982.
Swenson held the union position of assistant grievance
committeeman from May 1979 to June 1980 and in this
capacity dealt extensively with his supervisor , Earl Fox,
general foreman of the machine shop and blacksmith
shop . From time to time Swenson would notify his su-
pervisor of the need to conduct union business. Such
union activity would customarily require that he be
absent from his work station from between 4 to 6 hours
per week, for which time Swenson was docked. During
this time Swenson filed some 16 grievances on behalf of
employees, 7 of which were presented directly to Fox.
During the same period , Swenson also presented some 12
complaints to various foremen on behalf of employees,
although these complaints did not reach the level of offi-
cial grievances . Further, in early 1980 , Swenson engaged
in considerable discussions with foremen , including Fox,
about a change in the work schedule which adversely af-
fected a number of employees. These discussions oc-
curred on a daily basis over a 2-week period. Swenson
recalled that as a result of these discussions, Fox told
him that the Union was not going to tell him how to run
his machine shop.
The record shows that Foremen Jack Gammon "rein-
structed" Swenson on September 28, 1979, during the
course of a personal interview regarding the incorrect
boring of a hole. The "Employee Personal Interview"
form, signed by Gammon, states: "You are hereby in-
structed to pay closer attention to the instructions of
your supervisor and to blueprint specifications. You are
also reinstructed that the maximum time allowed for
breaks is 10 minutes ." Swenson admitted that Fox also
spoke to him about this matter, apparently around the
same time.
In June 1981, Swenson received a reprimand and a 2-
day suspension, apparently imposed by Fox, for faulty
workmanship. Swenson considered the discipline to have
been unwarranted, and a grievance was filed on his
behalf in July 1981. The grievance proceeded to the
third step of the grievance procedure. In late September
1981 Fox notified Swenson that the grievance had been
resolved, and that Fox had been instructed by his superi-
or to permit Swenson to make up the lost time and to
remove the matter from Swenson's personnel records.
Fox, who was admittedly disgruntled with the outcome
of the grievance, told Swenson that the suspension had
been warranted, and the whole thing was "bullshit."
In May 1982, while on layoff status, Swenson phoned
an acquaintance, Tom Black, with whom Swenson had
previously worked in 1978, and learned from Black that
several positions for machinists were available at Re-
spondent's Pittsburg, California facility. Shortly thereaf-
ter, Swenson was advised by Black that his chances for
the transfer were good, as Black had highly recommend-
ed Swenson to his foreman, Jim Johnson, who told
Black to have him apply for the transfer. Thereupon, on
May 7, 1982, Swenson submitted an "Application for
UNITED STATES STEEL CORP.
Transfer," approved by General Foreman Fox, and Max
Curtis, superintendent of central maintenance and utili-
ties, to the Respondent's Pittsburg, California facility.
In mid-June 1982, Swenson called Black and asked
what the delay was on his application for transfer. Black
said he would find out. Black testified that upon inquir-
ing about the matter, he was told by Johnson that he had
spoken to Fox at the Provo, Utah facility, that Fox rec-
ommended that Swenson not be hired because he was a
"troublemaker," and that Johnson had no place for a
troublemaker at the Pittsburg facility. Black indicated
surprise at this response, and Johnson said that Black
should tell Swenson to clean up his act, get things
straightened out with Fox, and perhaps reapply at a later
time.
Black testified that on April 25, 1983, 3 days prior to
the instant hearing, he was summoned to Johnson's
office. Johnson, smiling, asked Black what was going on,
and advised him that he had received a letter to appear
at the hearing. Black said that he too had been sub-
poened to appear at the hearing. Johnson asked Black to
help refresh his recollection regarding their conversation
about Swenson in mid-June 1982. Black said that he had
given a statement to the Board agent and initially told
Johnson that he could not give Johnson any assistance in
this regard without divulging the nature of the statement.
Johnson stated that he recalled talking to Black about
Swenson's craftmanship and prior reprimands as reasons
for refusing to act favorably on Swenson's request for
transfer. Black replied that the only thing he recalled
was that Johnson had related that Swenson was called a
troublemaker by Fox, and that this was the reason Swen-
son had not been hired.
Fox testified that he was familiar with Swenson's work
at the Provo facility, and that it was generally of poor
quality, particularly with regard to adhering to toler-
ances established by blueprints. Further, according to
Fox, Swenson was a slow worker and had a tendency to
leave the job early and wander to other departments to
visit. In this regard, Fox testified that supervisors were
constantly after him for these unauthorized visits. In
May, Fox received a phone call from Johnson and reluc-
tantly told him that because of the quality of Swenson's
work and the difficulty in keeping him on the job, he
would not recommend that Swenson be hired. Although
Fox testified that he did not mention "union" or "union
activity" during the conversation, he did not specifically
deny using the word "troublemaker."
Johnson, general machine shop foreman at Pittsburg,
generally corroborated Fox's testimony and determined
that he would not consider Swenson for the position be-
cause of Fox's unfavorable evaluation. Regarding his
subsequent mid-June 1982 conversation with Black,
Johnson testified that he told Black the reason that
Swenson was no longer being considered for employ-
ment was because he had "problems on his job."
Johnson generally corroborated Black's testimony re-
garding the April 25, 1983 conversation. Further John-
son testified that at the time he summoned Black to his
office he was unaware that Black had been subpoenaed
to appear at the hearing and did not learn this until the
very end of the conversation.
19
C. Analysis and Conclusion
Thomas Black impressed me as a highly credible wit-
ness with a precise recollection of his brief conversations
with Johnson regarding Swenson. Moreover, absolutely
no evidence was presented which would suggest any ul-
terior motive for Black to be less than totally candid.
Thus, he has been a long-time employee of Respondent
with a highly satisfactory relationship with Foreman
Johnson, and was merely an acquaintance of Swenson
having worked with him some years previously. Black's
testimony was forthright and convincing, and I have no
hesitation in crediting his testimony over that of Fox and
Johnson, both of whom exhibited less than a vivid recol-
lection of the events in question. Indeed, prior to the
hearing, Johnson found it necessary to enlist the assist-
ance of Black in order to "refresh" his recollection re-
garding the matter. I therefore conclude that Johnson
clearly, directly, and succinctly told Black that Swenson
was not being hired because his prior foreman, Fox, con-
sidered him to be a troublemaker, and that no other rea-
sons were enunciated by Johnson for denying Swenson's
application for transfer.
The record reflects that Swenson had a reputation as a
competent journeyman machinist prior to his being trans-
ferred to the Provo, Utah facility of Respondent, and
that he received only two reprimands in some 13 years
of employment with Respondent. One reprimand oc-
curred in 1979. The other reprimand occurred in June
1981, when Swenson received a 2-day suspension by Fox
for unacceptable workmanship. In September 1981, as a
result of Swenson's efforts in grieving the matter, this
suspension was removed from his personnel file. Fox was
admittedly unhappy about this, describing the resolution
of Swenson's grievance as "bullshit."
As the General Counsel notes in her extensive brief,
the term "troublemaker" is commonly a euphemism for
denoting an employee who is considered a disruptive ele-
ment because of his union activity. Huntington Hospital,
218 NLRB 51, 58 (1975); Mack Trucks, 242 NLRB 651,
656 (1979). Other than the grievances Swenson filed on
behalf of other employees as an assistant grievance com-
mitteeman, and the grievance filed on his own behalf,
there is no record evidence supporting any characteriza-
tion of Swenson as a troublemaker. Certainly, boring
oversized holes in a piece of metal or engaging in other
similar conduct, or being away from one's work station,
does not normally connote a "troublemaker." Moreover,
I do not credit Fox's testimony that supervisors were
constantly after Swenson for making unauthorized visits
to other departments. Nor does the record indicate why
no other supervisors were called as witnesses to substan-
tiate this contention. Swenson's union activity has been
substantially demonstrated, and the record shows that his
relationship with Foreman Fox, who was instrumental in
causing the Pittsburg facility to deny Swenson's applica-
tion for transfer, included frequent discussions with
Swenson concerning union grievances or complaints.
Further, Fox exhibited displeasure with what he believed
to be union interference with the way he ran his depart-
ment.
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record is clear that Respondent needed machinists
at the time Swenson applied, and that one machinist was
hired after Swenson's application for transfer was denied.
Further, Respondent has failed to establish by evidence
that Swenson's application would have been rejected in
any event, for reasons unrelated to his union or protect-
ed concerted activity. See Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981).
Based on the foregoing, and particularly Respondent's
failure to adduce persuasive evidence that its character-
ization of Swenson as a "troublemaker" connoted con-
duct other than union activity, I find that the General
Counsel has proven by a preponderance of the evidence
that Swenson's application for transfer was rejected be-
cause of his union and/or protected concerted activity,
as alleged, in violation of Section 8(a)(1) and (3) of the
Act. See Mack Trucks, supra; Roadway Express, 239
NLRB 653 (1978); Mrs. Baird's Bakeries, 189 NLRB 606
(1971).
Black's testimony was critical to this case. It is clear
that Johnson's interrogation of him prior to the hearing
in an effort to ascertain what he recalled about an earlier
inculpatory conversation with Johnson, creates an atmos-
phere of coercion which must be dispelled by an un-
equivocal statement that no repercussions will result
from the interview or from Black's subsequent testimony
in a Board proceeding. Indeed, the coercive nature of
the conversation is compounded by Johnson's statement
that his recollection of the matter was totally different
from the true and correct version which Black had relat-
ed to the Board agent . Johnson 's suggestion to Black,
during the interview, that he believed he told Black, in
June 1982, that Swenson's poor workmanship was the
reason for his not being hired, appears to be no more
than an attempt to give Black pause to consider that his
testimony would differ materially from that of John-
son's-' Obviously, this realization would reasonably
cause Black to fear adverse consequences, and Black is
to be commended for his resolve to testify forcefully and
candidly in this proceeding despite Respondent's appar-
ent attempt to cause him to equivocate. I find from the
foregoing that, as alleged, Johnson's failure to give Black
assurances against reprisals is violative of Section 8(a)(1)
of the Act.2 Johnnie's Poultry Co., 146 NLRB 770 (1964),
enf. denied on other grounds 344 F.2d 617 (8th Cir.
1965); Roadway Express, supra.
Moreover, even if Johnson, at the outset of the con-
versation, had not been aware that Black would be testi-
fying in this matter, such interrogation for purposes of
preparing a defense to an unfair labor practice complaint
r I credit Black and find that he made Johnson aware at the outset of
the April 25, 1982 interview that he would be a witness on behalf of
Swenson in this proceeding
2 I have carefully considered Respondent 's arguments that the amend-
ment of the complaint to include this allegation is untimely, and that Re-
spondent did not have an adequate opportunity to fully litigate this issue,
and find them to be without merit . I accepted the amendment of the
complaint at the hearing and advised Respondent that I would grant it a
reasonable amount of time to prepare its defense Insofar as the record
shows, Respondent presented , at the hearing, whatever evidence it de-
sired to present regarding this allegation , and no request was made to ad-
journ the hearing for the purpose of giving Respondent additional time
or for calling additional witnesses
nevertheless requires that the safeguards established in
Johnnie's Poultry Co., supra, be followed. Even though
Johnson's true intent may have been merely to assist
himself in recalling the events regarding Swenson in
preparation for the hearing and was not precipitated by
an ulterior motive, lack of an unlawful intent is not a de-
fense to the conducting of an interview which may rea-
sonably, as noted above, be deemed to be inherently co-
ercive. See Perko's Inc., 236 NLRB 884 fn. 2 (1978);
CTS Keene, Inc., 247 NLRB 1016 fn. 2 (1980).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) and (3) of
the Act by failing and refusing to hire employee William
Van Swenson in about mid-May 1982.
4. Respondent has violated Section 8(a)(1) of the Act
by engaging in coercive interrogation of employees.
5. The aforesaid unfair practices are unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated and is violat-
ing Section 8(axl) and (3) of the Act, I recommend that
it be required to cease and desist therefrom and from in
any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights
under Section 7 of the Act, and take certain affirmative
action described herein, including the posting of an ap-
propriate notice.
Having found that Respondent unlawfully failed and
refused to hire employee William Van Swenson in about
mid-May 1982,9 I recommend that Respondent make him
whole, with interest, for any loss of pay he may have
suffered as a result of the discrimination against him, and
notify him by registered letter that Respondent will
afford him an opportunity to apply for reinstatement to
its Pittsburg, California facility within 90 days after his
discharge form the Armed Forces. It is further recom-
mended that Swenson be awarded backpay from the date
he would have commenced work until the date he was
inducted into the Armed Forces, and from a date 5 days
after he applies for reinstatement on his return from the
service until the date of Respondent's offer of reinstate-
ment. Respondent shall also be ordered to pay Swenson
immediately that portion of his net backpay accumulated
between the date he would have commenced working at
Respondent's Pittsburg, California facility and the date
he entered the Armed Forces, without awaiting a final
determination of the full amount of his award. Diversified
Case Co., 263 NLRB 873 (1982). Backpay is to be com-
puted in the manner prescribed in F. W. Woolworth Co.,
3 The determination of the precise date when Swenson would have
commenced working for Respondent is left for the compliance stage of
the proceeding
UNITED STATES STEEL CORP. 21
90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
651 (1977). See generally Isis Plumbing Co., 138 NLRB
716 (1962).
It is further recommended that Respondent remove
from its records any reference to its failure to hire Swen-
son at its Pittsburg, California facility. See Sterling
Sugars, 261 NLRB 472 (1982).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
maintained 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, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
ORDER
The Respondent, United States Steel Corporation,
Pittsburg, California, its officers, agents , successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to hire employees because of
their union and/or protected concerted activity.
(b) Coercively interrogating employees.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer reinstatement to employee William Van
Swenson and make him whole in the manner set forth in
the remedy section of this decision. In this connection,
Respondent shall preserve and, on request, make avail-
able to the Board pr its agents, for examination and
copying, all records, including the payroll records of
other employees, necessary to analyze and compute the
amount of backpay due.
(b) Remove from its records any reference to its fail-
ure to hire Swenson at its Pittsburg, California facility in
about mid-May 1982.
(c) Post at its Ogden, Utah, and Pittsburg, California
facilities copies of the attached notice marked "Appen-
dix."s Copies of the notice, on forms provided by the
Regional Director for Region 32, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
* 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 pur-
Poses
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 Nation-
al 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 "
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to hire employees or to act fa-
vorably upon their application to transfer from one facili-
ty to another because they filed or processed grievances
or engaged in other union activity on behalf of United
Steelworkers of America, Local 1440.
WE WILL NOT interrogate employees in preparation
for a hearing before the National Labor Relations Board
without assuring them that their participation in the
interview will not result in reprisals.
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 offer William Van Swenson employment at
our Pittsburg, California facility as a machinist, upon his
discharge from the Armed Forces, and make him whole,
with interest, for any loss of earnings he may have suf-
fered as a result of our discrimination against him.
WE WILL remove from our records any reference to
our failure to hire Swenson in about mid-May 1982.
UNITED STATES STEEL CORPORATION