Unites States Steel Corp.

National Labor Relations Board - Board Decisions

Dec 5, 1980

253 N.L.R.B. 593 (N.L.R.B. 1980)

UNITED STATES STEEL CORPORATION
United States Steel Corporation and Frank Larimer.
Cases 6-CA-12188 and 6-CA-12395
December 5, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENEI.LO, AND
TRUESDALE
On November 27, 1979, Administrative Law
Judge Joel A. Harmatz issued the attached Deci-
sion in this proceeding. Thereafter, the Charging
Party filed exceptions and a supporting brief, and
the Respondent filed a brief in response to the
Charging Party's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order, as modified herein.
The Administrative Law Judge found, inter alia,
that by suspending and discharging employee
Frank Larimer, Respondent did not violate Section
8(a)(1) and (3) of the Act, and did not violate Sec-
tion 8(a)(l) by threatening to discipline Larimer for
looking at Occupational Safety and Health Admin-
istration (OSHA) regulations during working time.
For the reasons set forth below, we adopt the
former findings, but reverse the latter.'
The Threat
The record establishes that on the morning of
February 11, 1978,2 Larimer was away from his
work station and was discussing a possible OSHA
safety violation regarding a crane on which two
other employees, Light and Rosser, were sched-
uled to work. In the course of this discussion,
Foreman Wielgoleski approached Larimer and
asked him what he was doing. Larimer replied that
he was advising the men of a violation of the
OSHA safety rules. During the ensuing conversa-
tion, according to the credited testimony, Wielgo-
leski told Larimer that he (Wielgoleski) would send
Larimer home if Wielgoleski ever caught Larimer
reading the OSHA booklet on company time. The
Administrative Law Judge found that this state-
ment was not unlawful, concluding that Wielgoles-
ki's statement was directed toward Larimer's con-
duct which was disruptive of his and other em-
I No exceptions were taken with respect to the Administrative Lass
Judge's other findings.
2 All dates are 1978 unless otherwise indicated
253 NLRB No. 83
ployees' work, and, in the context in which it was
made, did not impair any rights to engage in pro-
tected concerted activity.
We disagree. We find Wielgoleski's threat to dis-
cipline Larimer was overly broad and hence un-
lawful because it was not confined to a warning to
Larimer that he was not to be away from his work
station during worktime. Instead, it was an unquali-
fied warning that Larimer faced punishment if he
again looked at the OSHA booklet during "Com-
pany time." Since "Company time" would encom-
pass periods of time, such as lunch breaks, when
employees clearly could not be lawfully disciplined
for reading OSHA booklets, Wielgoleski's threat
necessarily coerced Larimer and the other employ-
ees who overheard it in the exercise of their Sec-
tion 7 rights.3
The Suspension and Discharge
According to the credited testimony, Larimer
was observed on March 8 using a telephone away
from his work station. Supervisor Bucci attempted
to meet with Larimer, but Larimer refused when
Bucci would not inform him of his reasons. 4 As a
result of Larimer's refusal to meet with Bucci, Re-
spondent decided to suspend Larimer for 5 days
and prepared a suspension slip which Bucci was to
give Larimer on the following day. The Adminis-
trative Law Judge found, and we agree, that the
suspension was decided upon and was leveled
solely at employee misconduct of an aggravated
nature; i.e., insubordination.
On March 9, Bucci told Larimer that he wanted
to see Larimer in the office. Larimer again refused
to go unless Bucci disclosed the purpose of the
meeting. This time, however, Larimer stated that
he wanted his union representative present. Bucci
told Larimer that he did not need his representa-
tive and, after Larimer again refused to go to the
office, Bucci handed him the suspension slip. On
March 15, Respondent discharged Larimer.s
The Administrative Law Judge found, and we
agree, that it was Larimer's repeated refusal to
meet with Bucci on March 9 that led to his dis-
charge on March 15, and that the discharge was
not in derogation of Larimer's Weingarten rights.6
We find Roadway Express, Inc., 246 NLRB No.
180 (1979), controls the instant case. In Roadway,
we stated that an employer does not first have to
a For the reasons stated by the Administrative Law Judge. Member
Penello would dismiss this portion of the complaint.
4 The Administrative Law Judge found that Larimer did not ask for a
union representative on March 8
' Pursuant to a grievance settlement, the discharge was converted to a
37-day suspension. There is no contention that the Board should defer to
this resolution of the grievance
6 .L.R v. J Weingarten. Inc.. 420 U S. 251 (1975)
593
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assure an employee that his union representative
will be present at a meeting in order to induce the
employee to leave the plant floor. Thus, if the em-
ployer, as here, asks the employee to leave the pro-
duction area to go to another location, the employ-
ee acts at his or her peril if he or she declines to do
so. Here, Larimer's refusal to report to the office as
directed by Bucci clearly undermined Respondent's
rights to maintain discipline and order and was
therefore unprotected. 7 Accordingly, we find that
the discharge of Larimer for his March 9 refusal to
report to the office was not in violation of the
Act. 8
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
United States Steel Corporation, Dravosburg,
Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Insert the following as paragraphs l(b) and
(c):
"(b) Threatening to discipline employees for en-
gaging in protected concerted activity related to
job safety.
"(c) In any like or related manner interfering
with, restraining, or coercing our employees in the
exercise of the rights guaranteed them under Sec-
tion 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Member Jenkins agrees with the result, but relies solely on Baton
Rouge Water Works Company, 246 NLRB No. 161 (1979) He would find
that Larimer had no right to a union representative at the March 9 meet-
ing because the purpose o that meeting was simply to impose previously
determined discipline. He adheres to his dissent in Roadway Express.
supra
I In the absence of exceptions, we adopt the Administrative Law
Judge's remaining findings and conclusions
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
Accordingly, we give you these assurances:
WE WIIL NOT threaten our employees with
discipline because they have elected to distrib-
ute literature in nonworking areas on non-
working time in support of their candidacy for
union office.
WE WILL NOT threaten our employees with
discipline for engaging in protected concerted
activity related to job safety.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights defined in Sec-
tion 7 of the Act.
UNITED STATES STEEL CORPORATION
DECISION
STATEMENT OF THE CASE
JOEl. A. HARMATZ, Administrative Law Judge: This
consolidated proceeding was heard in Pittsburgh, Penn-
sylvania, on September 12, 1979, pursuant to an order
issued by the Regional Director for Region 6, on July
26, 1979, whereby the separate complaints in Cases 6-
CA-12188 and 6-CA-12395 were consolidated. That in
Case 6-CA-12188 was issued on May 29, 1979, upon an
unfair labor practice charge filed on March 20, 1979, and
alleged that Respondent independently violated Section
8(a)(1) of the National Labor Relations Act, as amended,
by threatening employees with discipline if they contin-
ued to engage in protected activity, by denying an em-
ployee's request for union representation in connection
with meetings which said employee feared reasonably
would result in disciplinary action, and by denying em-
ployees the right to engage in distribution of union litera-
ture in nonwork areas, on nonworktime. The complaint
further alleged that Respondent violated Section 8(a)(3)
and (1) of the Act by suspending, discharging, and refus-
ing to reinstate employee Frank Larimer because he en-
gaged in union and other protected activity. On July 26,
1979, the complaint in Case 6-CA-12395 issued upon an
unfair labor practice charge filed on May 21, 1979, and
alleged that Respondent violated Section 8(a)(1), (3), and
(4) of the Act by removing employee Frank Larimer
from his former position and transferring him to another
job because Larimer had engaged in protected concerted
activity and had filed charges under the Act. In its duly
filed answers, Respondent denied that any unfair labor
practices were committed. Following close of the hear-
594
UtNITEI) STATES STEEL CORPO(RATION
ing. post-hearing briefs were submitted on behalf of the
General Counsel and Respondent.
Upon the entire record in this proceeding, including
my opportunity to observe directly the witnesses while
testifying and their demeanor, and following considera-
tion of the post-hearing briefs, I find as follows:
FININS OI FACI
I. JURISI)II ION
Respondent is a Delaware corporation with a facility
known as the Irvin Works, located in Dravosburg, Penn-
sylvania, where it is engaged in the manufacture and
nonretail sale of steel and related products. In the course
and conduct of said operations, Respondent purchased
and received materials at its Irvin Works valued in
excess of $50,000, directly from suppliers located outside
the Commonwealth of Pennsylvania.
The complaint alleges, the answer admits, and I find
that Respondent is now, and has been at all times materi-
al herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. 'rI I .ABOR ORGANIZArION INVOLVID
The complaint alleges, the answer admits, and I find
that United Steel Workers of America, Local 227, AFL-
CIO-CLC, herein called the Union, is now, and has been
at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
Ill. I'Ht Al -(G; 1) UINIAIR IABOR PRACICtUS
A. Background
In this case the General Counsel charges Respondent
with ongoing interference with the statutorily protected
rights of Frank Larimer, an employee with 21 years'
service, including 15 years at the manufacturing complex
known as the Irvin Works. Larimer and fellow produc-
tion and maintenance employees at Irvin have been rep-
resented by the Union for many years. The current col-
lective-bargaining agreement was entered on August 1,
1977, and has a scheduled expiration date of August 1,
1980. Larimer was assigned to the central maintenance
division, manned by some 600 employees. The total
work force at Irvin numbered some 3,600 employees. His
duties, prior to the events in issue here, involved the in-
spection and repair of overhead cranes at a grade 16 pay
level.
During the period preceding the events in issue here,
Larimer manifested a frequent concern for safety in the
plant, having filed three complaints with the Occupation-
al Safety and Health Administration of the United States
Department of Labor (OSHA). In this connection, it is
alleged that Respondent violated Section 8(a)(l) by
t1reatening several employees, including Larimer, with
reprisals unless they refrained from discussing OSHA
regulations. Larimer also manifested a keen interest in
enforcing contractual rights evidenced by his filing of a
number of grievances, certain of which ultimately were
resolved through final and binding arbitration. In addi-
I Errors in the transcrlpl hasec been noted and art hereby rlcted
tion, on March 7, 1979,2 Larimer opened a campaign for
union office. In this regard, it is alleged that Respondent
violated Section 8(a)(1) of the Act by unlawfully inter-
fering with Larimer's right to engage in distribution of
campaign literature in support of his candidacy.
However, from the standpoint of remedy, the major
issues open with the March 9 suspension of Larimer and
his discharge on March 15. a The General Counsel con-
tends that the discharge and suspension violated Section
8(a)(1) and (3) of the Act on various proscribed grounds.
First it is claimed that said discipline was motivated by
Larimer's insistence upon union representation at a meet-
ing requested by his supervisor under conditions where-
by Larimer reasonably believed that said meeting would
result in disciplinary action against him. Thus, the Gen-
eral Counsel argues that discipline for such reasons vio-
lates the principle enunciated in N.L.R.B. v. J. Weingar-
ten, Inc., 420 U.S. 251 (1975), and hence violated Section
8(a)( I) of the Act. In addition, the General Counsel con-
tends that this action against Larimer violated Section
8(a)(3) and (1) of the Act inasmuch as Respondent was
motivated by Larimer's engaging in other protected ac-
tivity including the filing of grievances, processing of
grievances to arbitration, filing complaints with OSHA,
and participating in OSHA inspections.
The foregoing does not end the violations with which
Respondent is charged. Larimer grieved the suspension
and discharge and apparently, on or about April 1, that
grievance was settled. Pursuant thereto, the 5-day sus-
pension and discharge was converted to a 37-day suspen-
sion. Larimer was allowed to protest this 37-day suspen-
sion under another pending grievance, 4 and was reinstat-
ed to his former classification grade 16 level in central
maintenance on April 18. On May 2, on the heels of a
safety dispute involving General Foreman Heflin, the
latter reassigned Larimer to duties other than inspection
and repair work on cranes in operating areas. The Gen-
eral Counsel contends that this reassignment constituted
a further act of discrimination and violated Section
8(a)(1), (3), and (4) of the Act since it was motivated by
Larimer's union and protected activity, and because Lar-
imer had filed unfair labor practice charges and partici-
pated in an investigation thereof in the instant case.
B. Concluding Findings
1. The events of February 11
The complaint alleges that Respondent violated Sec-
tion 8(a)(l) of the Act through a threat attributed to
Foreman Eugene Wielgoleski that employees would be
disciplined if they engaged in protected activity. In sup-
port of this allegation, the General Counsel adduced tes-
timony from Larimer and fellow employee Sidney Light.
Thus, Light testified that the incident occurred on a
I All dates refer In 1979 unless otherwise indicated.
a See (; C Exh. 9(a) For the conversion of that suspension to a dis-
charge, effective March 15, 1979. See G.C Exh. 9(b).
4 See G C Exh 3. There is no claim or contention on behalf of the
Respondent that this resolution of the grievance pertaining to a segment
of the instant unfair labor practice complaint constitutes a final disposi-
tion as to hich the Hoard should take cognizance under the Spielberg
guidelins [.Sprlhcrg .Munu/acruring Compuany, 12 NLRB 1080 (1955) )
595
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
morning marked by extreme cold. He, together with his
helper, Wallace Rosser, was assigned to work on a semi-
gantry crane. Prior to commencing work, Light and
Rosser were in the cab of the crane attempting to warm
up. Before Light and Rosser departed to perform their
assigned tasks, Larimer entered the cab, advising the men
that he possessed an OSHA booklet and that the gantry
crane was in violation of OSHA's safety rules in that the
entry steps were too far from the ground. In the course
of that discussion, Foremen Wielgoleski and Bucci ar-
rived on the scene. Wielgoleski asked Larimer what he
was doing on the gantry crane, and the latter indicated
that he was advising the men of a violation of the safety
rules. During the ensuing conversation, according to the
testimony of Light, Wielgoleski told Larimer that he
would send him home if he ever caught him reading the
OSHA booklet on company time.' After this, Larimer
continued to his job on "an overhead crane in the imme-
diate area."'
This entire incident took place after Light, Rosser, and
Larimer received their work assignment for the day and
during working time. Light's testimony establishes that
Larimer was not assigned to work on the crane on
which he was found by Wielgoleski that morning. Not-
withstanding the variation in testimony of Light and
Larimer concerning the precise words used by Wielgo-
leski on that occasion, from the context it was apparent
to all that his warning was addressed to conduct on the
part of Larimer disruptive of his own and the work re-
sponsibility of others during a period when the Company
could rightfully expect the employees to have been en-
gaged in the performance of their assigned duties. As
such, his threat did not impair any protected rights to
engage in activity on nonworking time in connection
with safety. Accordingly, Wielgoleski's remarks were
not violative of Section 8(a)(1) of the Act. 7
2. The alleged improper interference with
distribution on March 8
On March 7, Larimer began distributing literature in
support of his campaign for election to department griev-
ance man. Among the areas in which Larimer distributed
these materials was a "shop area," a location which from
time to time bore the characteristics of both a work and
a nonwork area. It was in this area that on March 8,
1979, Larimer was approached by Turn Foreman Dennis
Bucci and General Foreman Robert Heflin. In this con-
nection, Heflin testified that, on March 7, he observed
Larimer distributing campaign literature in this same area
5 ILarimer's version of the Wielgoleski threat was to the following
effect: "If I catch you with that OSHA book anymore during working
hours, you are going home . . . you are working for U.S. Steel, not for
OSHA."
6 It is the sense of Light's testimony that Larimer was not assigned to
the crane on which the above incident took place. Larimer claimed he
was so assigned. As between them, I prefer Light. Larimer was an unreli-
able witness.
7 As indicated Larimer was not a trustworthy witness. I discredit his
self-serving and highly unlikely testimony that his duties as an inspection
repairman included enforcement of OSHA standards.
At the same time, Wielgoleski could not recall threatening Larimer or
any other employee with discipline. The testimony of Light, an incum-
bent employee with no apparent interest in the outcome. is credited to
the extent in conflict.
both before and after his shift's end. Heflin claims to
have obtained clarification of Respondent's policy on
passing out campaign literature and then, on March 8, to
have informed Larimer s that he is not authorized to pass
out campaign literature in the mill on company time.9
Respondent in its brief concedes that Heflin's state-
ment in this regard was broad and unlawful. Nonethe-
less, Respondent urges that any violation arising there-
from was at best technical, and fails to warrant a remedi-
al order. I disagree. Prior unfair labor practice charges
against Respondent alleged an overly broad restriction
upon rights of employees to distribute literature on
behalf of their candidacy in internal union elections. That
unfair labor practice charge was resolved by a settlement
which included the posting of a notice defining the con-
ditions and circumstances under which employees could
rightfully engage in such activity within the confines of
the plant.o' Upon Heflin's own testimony that he
checked to clarify Respondent's policy with respect to
such distribution, and from Heflin's subsequent action, it
is apparent that the notice posted under the settlement
agreement did not have universal reach and that certain
of Respondent's managers are still in the dark with re-
spect to their statutory obligations in this regard. These
circumstances negate Respondent's plea that no remedy
is warranted with respect to this issue. Accordingly, I
find that Respondent violated Section 8(a)(1) of the Act
by orally promulgating a limitation on distribution which
was sufficiently broad to preclude an employee from dis-
tributing literature in a nonworking area, on his own
time.
3. The suspension and discharge
On March 9, Larimer was given a 5-day suspension
subject to discharge for insubordination. On March 15,
the suspension was upgraded to a discharge. " As for the
events giving rise thereto, General Foreman Heflin cre-
dibly testified that on March 8, 1979, another foreman,
one Janeski, informed Heflin that Larimer had been ob-
served in his area on two different occasions using the
telephone. Janeski asked Heflin if he knew the reason for
this, mentioning that he overheard Larimer refer to the
Union while on the telephone. The telephone was locat-
ed in an area somewhat remote from Larimer's place of
I credit Heflin's testimony that he observed Larimer engaged in the
distribution of said literature prior to 3:45 p.m and during time when
Larimer was supposed to be working L.arimer's own testimony. as well
as documentation offered by the General Counsel in his behalf, manifests
his propensity to appropriate working time for his own pursuits.
9 Heflin defined "company time" as including the entire shift for which
employees are paid, a definition which would include break periods and
other nonworking time.
1o See G.C. Exh. 2
1 Under the applicable collective-bargaining agreement Respondent
could not have effected a discharge at the time Larimer was placed on a
5-day suspension. Sec. 8(e) thereof provides as follows
An employee shall not be peremptorily discharged. In all cases in
which management may conclude that an employee's conduct may
justify suspension or discharge, he shall be suspended initially for not
more than 5 calendar days, and given written notice of such action
In all cases of discharge, or of suspension for any period of time, a
copy of the discharge or suspension notice shall he promptly fur-
nished such employee's grievance committeeman
See G.C. Exh. 6.
596
UNITED STATES STEEL CORPORATION
work that day. Heflin went on to testify, with corroba-
tion from Turn Foreman Bucci, that he instructed Bucci
to inquire of Larimer as to the reason for his presence
and nis use of the phone on that occasion as reported by
Janeski.
That afternoon, toward the end of his shift, as Larimer
was returning to the shop area, he passed Bucci, his im-
mediate supervisor that day. Bucci called him, and Lar-
imer asked, "What do you want?"12 Bucci, beckoning
with his finger, motioned Larimer to come to him, and
stated, "I want to see you here over here." Larimer re-
plied no, demanding that, if Bucci wanted to speak to
him, he could do so where Larimer wished, so that
others could hear, including a particular employee whom
Larimer identified as a witness whom he wished pres-
ent. 13 Larimer again, without success, sought from Bucci
his reason for wanting to talk, and then told Bucci that
he had to put away his tools and complete a lube report.
Contrary to Bucci's directions, Larimer then left the area
to stow his tools. Bucci followed, advising Larimer that
he wanted to see him in the office.L 4 At this point Bucci
left for the office, stating, "I'm going back to the office,
and you had better be there." Larimer did not abide, but
instead went to another area where he began to complete
a lubrication report. General Foreman Heflin was in that
area.t1 Bucci then appeared and in Heflin's presence,
stated to Larimer, "I thought I told you to come back
into . . . [the] office." Larimer asked again what Bucci
12 I credit Bucci's testimony that. on such occasions, it was his policy
to address employees privately.
1a That individual was not identified as a union agent or representa-
live. While it is true that in Anchortank. Inc.. 239 NLRB 430 (1978), there
is an ever so faint suggestion that Weingarren fails to distinguish between
a request for representation by a "fellow employee" and a request for
representation by a union representative. I interpret such dicta as limited
to the context of unorganized employers. Any other interpretation would
do violence to the exclusive status enjoyed by the statulory representa-
tive pursuant to the policies of the Act.
" Larimer testified that Bucci directed him to "Heflin's office." Bucci
denied mentioning Heflin specifically, and claims that he simply told Lar-
imer that he wanted to see him in "the office.' As a turn foreman, Bucci
did not have his own office, but shared such facilities with other fore-
men. I have heretofore indicated my mistrust of Larimer. Between Lar-
imer and Bucci, I regard the latter as more credible. I did, however, have
doubts concerning Bucci's testimony that it was his belief that Larimer
only inquired once as to the purpose of the discussion Otherwise the
above is derived from a composite of the believable testimony of Bucci
and Larimer.
1s Contrary to the testimony of Larimer, I credit Heflin and find that
he did not witness the earlier confrontation between Bucci and Larimer
and that his first immediate contact with either took place when Larimer
attempted to complete his lube report. In this connection, it is noted that
Larimer omitted from his accounting of the sequence of events any refer-
ence to an encounter with Heflin at that time. It was not until cross-ex-
amination that it was elicited by Respondent's counsel that, when Lar-
imer went to the desk to makce out his lube report, Heflin was in that area
scraping another employee's (Bonn) campaign sticker off a glass bulletin
board. Larimer, somewhat grudgingly, admitted that he observed this,
and that he "mentioned" at that time that ". . . it looks like Heflin can't
take it, he's taking Bonn's slicker off." Parenthetically it is noted that I
credit Heflin's testimony that Larimer made these statements in a loud
voice to a number of employees; I discredit Larimer's claim that he
merely "whispered" the jibe. In any event, Larimer's omission of this in-
cident from his original account impressed me as hardly inadvertent, for
it enshrouds with improbability his testinmony that Heflin observed the
earlier confrontation between him and Bucci. It seems entirely unlikely
that Larimer's next encounter with Heflin would have been marked by
such tactlessness had he known that Heflin actually witnessed the earlier
incident
wished to discuss. At which point Heflin said, "Are you
refusing your foreman's directive to meet him back in his
office...." Larimer responded, "I'm asking what is to
be discussed, I think I have a right to know what is to be
discussed .... " Larimer then asked Heflin directly "By
the way what is it that you have to discuss." To this
Heflin said, "We will think of something."
At this juncture a highly material conflict in testimony
emerges. Larimer claimed that he told Heflin ". . . in
that case, I want a grievance man, or an assistant griev-
ance man." To this, according to Larimer, Heflin said
that he did not have such a right, and that Larimer re-
sponded that he did. Bucci testified that, in the course of
this entire transaction, Larimer, while having asked for a
"witness" earlier, did not at any time on March 8 request
a union representative. Hefnin corroborated Bucci to the
extent possible.
Passing this conflict for the moment, it is clear that
Larimer left work that day, denying Bucci the opportu-
nity to talk to him privately.
The next day, March 9, at the close of the shift, Bucci
approached Larimer and told him he wanted to see him
in the office of Foreman George Koch. Larimer in-
formed that he would repeat his question of the day
before; namely, what did Bucci want to discuss. Bucci
then instructed him to go to Koch's office. Larimer re-
plied, according to his own testimony, "I told you yes-
terday, until you can tell me what it is you have to dis-
cuss, I'm not going into George Koch's office .... " Ac-
cording to Bucci, at this point Larimer for the first time
requested union representation, whereupon Bucci indi-
cated that it was not necessary. Bucci again directed
Larimer to the office and, when the latter again refused,
Bucci told him that he was again being insubordinate,
and could receive further discipline for this. Bucci then
gave Larimer a discipline slip that had been prepared
previously, advising that this was for Larimer's insubor-
dination of the day before. That slip provided for a 5-day
suspension subject to discharge. 1 6 As heretofore indicat-
ed, on March 15 the suspension was converted to a dis-
charge.
With respect to the General Counsel's claim that the
discipline was motivated by Larimer's union activity
and/or his protected conduct in the form of grievance
filing and OSHA citations, the record does not convinc-
ingly establish that Respondent's action in this regard
was based upon anything other than what had transpired
between Larimer, Bucci, and Heflin on March 8. His ac-
tions on that date, even under his own account, entailed
a highly provocative display of insubordination, resulting
in complete frustration of his foreman's instructions. Any
assumption that this conduct was merely asserted as pre-
text to mask a disciplinary reprisal for Larimer's past ef-
forts to enforce the contract or insure compliance with
OSHA standards is so lacking in substantiation on this
record as to amount to reversal of management judgment
on little more than abstraction. Thus the timing of the
discipline in relation to past arbitrations and OSHA cita-
16 See G.C Exh. 9(a).
" See G C. Exh. 9(b)
597
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions is not suspect, 8 and evidence of animus with re-
spect to such activities was not convincingly established
on the record.'s Also lacking is evidence that Respond-
ent condoned conduct similar to that manifested by Lar-
imer on March 8, with respect to any other employee. In
sum, I find that the General Counsel failed to establish
by a preponderance of the record that the action taken
against Larimer on March 9 was in any manner related
to his union activity, to his past efforts to enforce the
contract through the grievance procedure, or to his
OSHA complaints.
Yet the inquiry proceeds, for the General Counsel
contends that the suspension and discharge violated Sec-
tion 8(a)(l) of the Act since the discipline interfered with
Larimer's protected right to insist upon union representa-
tion. In N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251
(1975), the Supreme Court approved Board policy to the
effect that the Act, by virtue of Section 7 thereof, guar-
antees employees the right to union representation at an
interview required by an employer if(I) the employee re-
quests such representation and (2) if he reasonably be-
lieves the investigation will result in disciplinary action
against him. Respondent argues that neither of these con-
ditions was met herein. In addition, Respondent observes
that the subsisting collective-bargaining agreement af-
fords employees union representation only where re-
quested to meet with managers other than their immedi-
ate supervisor and, based thereon, argues that the right
to union representation asserted by Larimer herein has
18 With respect to Larimer's grievance activity, the record does not
evidence that he had filed a grievance, except as to the matters involved
in this proceeding, at any time since August 22, 1978. The most recent
arbitration involving a grievance filed by Larimer resulted in an award
issued on January 10, 1979, which upheld the Employer's position in
denying the grievance. With respect to his OSHA involvements, it ap-
pears that Larimer initiated action by that agency on three occasions,
once in 1975, once in September 1978, and again on February 13, 1979
OSHA citations did result from this latter complaint, but they were not
issued until after his suspension.
'1 The General Counsel adduced testimony from employee George E
Murr, Jr., in an apparent effort to establish that Larimer was victimized
by harassment of his supervisor. Murr's testimony was vague and in part
based upon uncorroborated hearsay yet, even if accepted as proof that
Respondent's foremen did not view Larimer hospitably or with a spirit of
cooperation, that to which Murr attests was not specifically linked to any
protected activity. I am mindful of no principle under this Act warrant-
ing a presumption that negativism by supervisor toward an employee,
perforce, must have been derived from the latter's exercise of Sec. 7
rights.
Donald Conn. another employee called by the General Counsel, testi-
fied to an incident in September 1978. He claims that, while en route to
meet an OSHA inspector, he confronted Larimer who showed him a box
of garbage, and claimed that he had been instructed by his foreman and
general foreman to clean the shop up and that they did not allow him to
use a shovel and broom but instructed him to clean up by hand. Conn
asked Larimer if he was interested in filing a grievance; Larimer de-
clined. Conn subsequently confronted Heflin with what he had learned
from Larimer, and Heflin admitted that he told Larimer to pick up the
garbage by hand because Larimer would not be there long enough to use
a broom and shovel. No elaboration was sought as to the somewhat neb-
ulous remark Conn attributes to Hellin. Considering all the circum-
stances, I am not entirely convinced that Heflin's statement constituted an
admission that Larimer was being abused by the assignment in question.
In any event, here again, no nexus has been demonstrated with any pro-
tected activity.
been surrendered through express waiver during the col-
lective-bargaining process.2 0
On the critical question of whether Larimer actually
requested union representation prior to the invocation of
the discipline against him, I was inclined to believe the
testimony of Bucci and Heflin to the effect that no such
request was made on March 8. I credit Bucci that the
first such request was made on March 9, after the deci-
sion had been made to issue the suspension subject to dis-
charge.2t Thus, on the credible evidence, I find that,
prior to any request by Larimer for union representation,
he frustrated his supervisors' directives under conditions
beyond the protective ambit of Wcingarten.2 2 In addi-
tion, I find that the suspension was decided upon and,
without intercession of Section 7 rights, was leveled
solely at employee misconduct of an aggravated nature.
Apart from the foregoing, which alone is dispositive, re-
liance upon Weingarten, at least with respect to the sus-
pension, is misplaced on other grounds as well. For, con-
sidering the objective circumstances, there is no basis for
concluding that Larimer on March 8 held a reasonably
based belief that discipline would follow the meeting
sought by Bucci. Although Larimer afforded a quantum
of subjective testimony as to his state of mind and the
reason for his claimed apprehension, his lack of credulity
and the Supreme Court's admonishment against defer-
ence to subjective testimony 23 eliminate its probative
value. Nor do I find persuasive the General Counsel's
contention that Heflin's warning earlier on March 8 that
discipline would follow if Larimer engaged in distribu-
tion of campaign literature on company property fur-
nished an objective foreground from which such a belief
should be inferred. After this warning, Larimer is not
shown to have engaged in distribution violative of He-
flin's instruction, and hence this earlier warning stands in
isolation as a mere communication of what was expected
of Larimer, and hardly gives rise to a reasonably based
assumption that this would be the subject matter of the
conversation requested by Bucci. In sum, I find that the
General Counsel has failed to establish that the suspen-
sion of Larimer, based upon his misconduct of March 8,
interfered with rights conveyed to employees by virtue
of the pronouncements in Weingarten.
20 See G.C. Exh 6, Sec 8 B, marginal par. 8 7, p 43 In view of my
ultimate disposition, the "waiver" issue does not affect the result and that
issue need not be reached.
21 Contrary to the General Counsel the description of the events of
March 8, 1979, appearing in Resp. Exh 2 does not require rejection of
the testimony of Bucci and Heflin in this respect, which I believed. That
document consists of "minutes" of a third-step grievance meeting. As
minutes it would naturally consist of a summation of facts developed at
the particular grievance session covered. However, at that proceeding,
the only witnesses called were those offered in support of the grievance
Neither Bucci nor Heflin testified at that grievance meeting or otherwise
appeared. There is no evidence that they affirmed or adopted the content
of those minutes On the other hand, Larimer was a highly unreliable
witness. His tendency to afford argumentative and patently untrue testi-
mony is established throughout this record. Further, in this respect, it is
noted that an affidavit prepared by Larimer shortly after March 9 makes
no mention of any request for union representation. See Attachment 3 to
Resp. Eh 2.
22 See Lennox Industries. Inc., 244 NLRB 607 (1979): "IT]The right to
· . assistance at an interview where discipline is reasonably feared is
triggered only upon a request for such representation."
23 See N.L.R.B. v Weingaren, supru, at fn 5
598
UNITED STATES STEEL. CO)RPORATION
However, the discharge of March 15 turns upon other
considerations. There is no evidence that Respondent
was of a mind automatically to convert the suspension to
a discharge upon expiration of the 5-day contractual
period required for such discipline. On the contrary, on
March 9, before Bucci delivered the suspension notice,
he threatened Larimei with further discipline, a gesture
hardly indicative of a present disposition to terminate.
Furthermore, the suspension notice on its face mentioned
discharge only in terms of possibility. On the entire
record, I find that it was Larimer's repeated refusal to
meet with Bucci on March 9 that led to his discharge on
March 15.
Unlike the predicate for the decision to suspend, it will
be recalled that Larimer did, during the March 9 con-
frontation, request union representation. However, not-
withstanding said request, no meeting transpired, and
Bucci simply delivered the discipline.
From my view of the precedent, whether the subse-
quent discharge involved an unlawful interference with
Weingarten rights turns critically upon the subject matter
of the private meeting requested by Bucci on March 9.
For Weingarten has no universal application to all meet-
ings between employees and supervision. The Board, at
least in principle, has adhered to the view that "Weingar-
ten should not be read to require a right of representa-
tion when the interview is simply to inform the employ-
ee that he is being disciplined." 'V.L.R.B. v. Certified
Grocers of California Ltd., 587 F.2d 449 451 (9th Cir.
1978); Alfred M. Lewis, Inc. v. N.L.R.B., 587 F.2d 403
(9th Cir. 1978). This is confirmed by two recent Board
Decisions, wherein it was held that a supervisor did not
violate Section 8(a)(l) by denying an employee request
for union representation where, in denying the request,
the supervisor simply informed the employee of disci-
plinary measures already decided upon, while engaging
in no type of "interchange which could be characterized
as an interview." See Amoco Oil Company, 238 NLRB
551 (1978); and K Mart Corporation, 242 NLRB 855
(1979). Consistent with the foregoing, it was the General
Counsel's burden to establish that, on March 9, Larimer's
disobedient refusal to repair with Bucci to the privacy of
an office actually involved the avoidance of discussion
that could fairly be characterized as an interview. Absent
such proof, the Act does not intercede to insulate Lar-
imer from discharge in consequence of his persistent re-
fusal to obey his supervisor. However, the record is
devoid of evidence as to precisely what was to transpire
at any such meeting. I am unwilling to infer that Bucci
remained concerned with the investigation of Larimer's
presence in Janeski's work area and his use of the tele-
phone. Larimer's serious misconduct on March 8 in re-
fusing to meet with Bucci would likely eclipse that rela-
tively minor matter, and I am not convinced that Bucci
wished to extend his probe of the former in any encoun-
ter with Larimer on March 9. On the other hand, since
the suspension had been previously decided upon, and as
the facts on which that discipline was based occurred in
the presence of Bucci, the more likely inference is that
he directed Larimer to the office on March 9 for the lim-
ited purpose of communicating said discipline in privacy.
Accordingly, the General Counsel has failed to establish
that Bucci instructed Larimer to go to the office of Fore-
man Koch to engage in an investigatory interview or for
any purpose other than to deliver the predetermined dis-
cipline. Hence, the latter's request for union representa-
tion was outside the protective gloss of Weingarten and
the discharge based solely upon an insubordinate refusal
to adhere to supervisor's command was not violative of
Section 8(a)(l) of the Act. I so find.
4. The post-discharge interference with distribution
Following his discharge, Larimer continued his cam-
paign in quest of union office. Pursuant thereto, on
March 28, Larimer appeared on company premises in an
area proximate to Respondent's guardhouse. While dis-
tributing his campaign literature, he was approached by
a guard sergeant who examined the material he was dis-
tributing and then asked Larimer to come to his office.
Larimer did so, and the guard made a telephone call, in
which he was informed that Larimer had been dis-
charged and was no longer employed by U.S. Steel. The
guard informed Larimer that, as a nonemployee, he was
not permitted to distribute literature without first obtain-
ing clearance. On March 29, Larimer sought to obtain
clearance from Herb Ellis, Respondent's superintendent
of employee relations. Ellis declined, and Larimer was
denied access to plant premises.
The General Counsel contends that Respondent there-
by violated Section 8(a)(1). I disagree. During the period
relevant to this allegation, Larimer was a nonemployee,
whose right to engage in otherwise protected activity on
company property was subject to the balancing test set
forth in N.L.R.B v. The Babcock & Wilcox Company, 351
U.S. 105 (1956), wherein the Supreme Court held that an
employer may lawfully impede nonemployee organizers
from intruding on its property unless the General Coun-
sel proves that no alternative means exist for communi-
cating with employees. No effort was made on this
record by the General Counsel to establish a right of
access under any such test. Instead, the General Counsel
challenges Respondent's action as application of a dis-
criminatory rule. Thus, the General Counsel relies on
testimony of Larimer and employee Donald Conn to the
effect that several years earlier "Junior Achievement,"
apparently a local beneficent organization, passed out
metal plates stating, "Irvin Works Buy American." It
also appears that, during the congressional election of
1978, a candidate for Congress was on company proper-
ty greeting employees as they entered and left the plant.
On another occasion, Skoal Chewing Tobacco was ob-
served passing out free samples on company property.
The General Counsel's evidence in this respect appears
isolated and hardly portrays Respondent's premises as a
public area on which all persons are freely welcome. As
a large employer, Respondent does have community re-
sponsibilities and the grant of access to outsiders in fur-
therance thereof should not be lightly regarded as the
fulcrum by which the right of nonemployees to engage
in otherwise protected activity on private property is en-
larged. Although I have my doubts as to whether such
evidence offers a material basis for challenging an em-
599
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer's assertion of rights as against nonemployees,2 4
that which exists hardly reflects the degree of wide-
spread access necessary to substantiate that Larimer was
the object of disparate application of Respondent's
policy. 25 Accordingly, I find that Respondent did not
violate Section 8(a)(1) of the Act by precluding Larimer
from engaging in distribution of campaign material on
company property during the period of his discharge.
5. The post reinstatement discrimination
On March 28, Larimer initiated a contractual griev-
ance in connection with his suspension and termination.
As heretofore indicated, as of April 11, that grievance
was settled under conditions providing for, inter alia, re-
instatement of Larimer without backpay. Larimer re-
turned to work on April 18.
The complaint alleges that, on May 2, Respondent vio-
lated Section 8(a)(l), (3), and (4) by removing Larimer
from his crane repair and inspection job and assigning
him to general repair job duties. On that date, Larimer,
with three coworkers, was assigned to perform repair
and inspection work in connection with what has been
referred to as number 3 crane. The crew, including Lar-
imer, went to the crane but, consistent with Respond-
ent's practice, Larimer attempted to seek out the fore-
man to have him sign a "safe-job procedure card." 26
Upon finding the foreman, John Porter, Larimer ob-
tained his signature to the job procedure card and re-
quested that Porter provide safety personnel for the
cranes operating on either side of the number 3 crane.
Larimer claims that he made this request because the
crew had to "inspect in and around the tracks of the
crane and so forth." Porter advised that safety men
would not be provided and referred Larimer to Foreman
Ed Fisher. Larimer attempted to contact Fisher by radio
but had no success for about an hour. Fisher finally ap-
peared, whereupon he was informed by Larimer that no
safety men had been provided at crane 3. Fisher told
Larimer that, as the cranes were "busy," the crew would
not work on crane 3 that day. Accordingly, he instruct-
ed the crew to go to crane 25. Parenthetically, it is noted
that, during the course of Larimer's efforts to obtain
safety men in connection with the inspection work to be
performed on crane 3, no work was performed on that
crane prior to the crew's reassignment.
At this point, according to the testimony of Larimer,
the crew went to crane 25. Larimer claims that he again
had difficulty finding the foreman in charge of that area
to have him sign the safe job procedure card. Being un-
successful, Larimer returned to the Number 25 Crane,
where he found General Foreman Heflin waiting for
him. Heflin told Larimer, "It's past 10 o'clock in the
morning . . . no work has been down yet . . . why
aren't you up on the crane. ... " Larimer indicated that
he had not obtained a signature to the safe-job-procedure
card, adding that he had to get safety men for the cranes
running on either side of crane 25. Heflin stated that Lar-
24 See, e.g., Hudgens v N L.R.B., 424 U.S. 507 (1976).
25 See, e.g., Uniflite. Inc., 233 NLRB 1108, 1111 (1977), and cases cited
at fn. 10 thereof.
2 This card is to be signed by the foreman in the area, apparently to
assure that the latter is mindful of the work to be done by the crew.
imer did not need safety men and Larimer disagreed.
Larimer argued that he had to check in and around the
tracks of the crane and underneath the end tie of the
crane and that he felt it was necessary to have safety
men. To this Heflin argued, "You don't need safety men
for inspection," charging that Larimer was refusing to go
on the crane. Larimer denied that he was refusing to go
on the crane but indicated that he would only work on
the walkways and not on the shafts that could turn.27 At
this point, Heflin interjected that "bumpers stops"2 8
could be placed on the rails so that the other cranes
could not enter the area adjacent to crane 25. Heflin, ac-
cording to Larimer, instructed him to get the guards
without telling him where they were. Larimer proceeded
to look for the guards but never located them.
Later that day, Heflin reassigned Larimer to the
"mesta spares area." Prior to said transfer, Larimer had
performed no work on crane 25 or crane 3 that day. Fol-
lowing this reassignment, Larimer continued to occupy
and to be paid at the class 16 rate except for an 18-day
period during which Larimer was suffering from a physi-
cal disability.2 9 While assigned to class 16 work in the
mesta spares area, Larimer was regularly assigned duties
distinct from those customarily performed by one hold-
ing the classification "inspection and repair millwright."
His work after May 2 consisted of cleanup, painting, and
working in shop repair.
Respondent contends that Larimer's reassignment was
actuated solely upon Larimer's refusal to meet the condi-
tions of his job. In this respect, it is noted that, in early
January 1979, the required duties of completing an in-
spection report were removed from Larimer's responsi-
bility because of his persistent inclusion therein of irrele-
vancies, including scurrilous editorialization of job condi-
tions. Larimer admits that this occurred and there is nei-
ther indication nor claim that this step was taken in
reprisal for activity protected by the Act. In testifying as
to his reasons for removing Larimer from crane inspec-
27 I discredit Larimer's testimony that he explained to Heflin that he
needed a safety man because he would probably have to work on bolts
on shafts that could rotate. I mistrusted Larimer generally, who im-
pressed me as prone to iject tailored facts to enhance his cause. I believe
that the dispute between Heflin and Larimer as to the necessity of signal-
men related exclusively to the need for signalmen for the performance of
inspection duties and in no way related to possible repair work
28 Bumper stops are rail clamps which, when applied to the rails, phys-
ically obstruct passage beyond that point.
29 On May 8, Larimer sustained an on-the-job injury. During the ensu-
ing period, Larimer was placed on modified work by company physicians
on two separate occasions. Consistent with company policy, it having
been determined that the disabling effects of the injuries reduced Lar-
imer's work capacity beneath the level of class 16 work, Larinmer was re-
duced to a lower paying class 2 position during these periods Other than
the incredible, self-serving, and conclusory testimony of Larimer, it does
not appear that this treatment was disparate or otherwise suspect I credit
Heflin that Larimer was reduced to a class 2 level solely because compa-
ny physicians forwarded modified work papers limiting Larimer's walk-
ing, standing, bending, and lifting restrictions which did not permit him
to perform his class 16 work I also credit the testimony of Heflin that
Tom Amen, another employee in the tractor shop who had sustained an
on-the-job injury, was not reduced because he was not put on any re-
stricted or modified work by company physicians, but simply required
daily treatment, after which, Amen was able to perform his regular trac-
tor repair functions. Thus, I find that the reduction in rate classification
afforded Larimer was based upon legitimate considerations stemming
from his disability as determined by company physicians.
600
UNITED STATES STEEL CORPORATION
tion and repair work, Heflin referred to this part of Lar-
imer's work history, and also pointed out that the May 2
incident occurred against the background of continuing
delays, provoked by Larimer through his persistent rais-
ing of problems. Heflin observes that it was well known
that safety men are not provided for inspections and, de-
spite this, Larimer refused to work first on crane 3 and
then on crane 25 in the face of this policy. In sum, Heflin
described the incident of May 2 as follows, "[It] . . .just
reached the limit, that I would rather have him off the
inspection crew, and rather have him in the spare parts
area, so the rest of the crew could work, it was 10:30 in
the morning, and absolutely no work has been per-
formed, and that was it . . . because I did not know
what delays was going to be next."
The General Counsel's contention that this reassign-
ment was based on Larimer's union or other protected
activity or his action in filing an unfair labor practice
charge and assisting in the investigation thereof is based
on little more than naked claim. Apart from the reasons
specified by Heflin, if this reassignment had any basis in
past history, I would find it more closely related to Lar-
imer's refusal to abide by his foreman's instructions on
March 8 and 9. Further, the intervening adjustment of
Larimer's grievance which resulted in his reinstatement
is hardly suggestive of a lingering animus based on past
grievance actions, arbitrations, or OSHA complaints.
In any event, it is concluded that the reinstatement
was triggered solely by Larimer's insistence on signal-
men as a condition for working on crane 3, and his con-
tinued demands for signalmen on crane 25. The position
taken by Larimer involved individual action. He neither
acted as a spokesman for nor in concert with the other
members of his crew in demanding signalmen. This
demand was made as a precondition for the performance
of the preliminary task of inspection.3 0 Larimer's cause
is by no means aided by fact that, at crane 25, Larimer
was given permission by Heflin to obtain railguards. At
that juncture, Larimer had already manifested his unwill-
ingness to work unless signal men were provided, caus-
ing at least an hour delay in starting work on crane 3.
Heflin, if interested in getting the job done, had to find a
way of working around Larimer's objection, and I be-
lieve this was the course he adopted in voicing no objec-
tion to the use of railguards.
Nor can it be maintained that Larimer's actions of that
day were protected by Section 7 of the Act because they
were justified by contract or practice. Section 14-C of
the governing collective-bargaining agreement provides
as follows:
An employee or group of employees who believe
that they are being required to work under condi-
tions which are unsafe or unhealthy beyond the
normal hazard inherent in the operation in question
shall have the right to: (1) file a grievance in the
30 The General Counsel's contention that Larimer did not refuse to
perform work is rejected It is clear, front Larimer's on testimony, that
no work was performed on crane 2. and that he waited at least an hour
in his effort to contact Foreman Fisher in order to obtain the sign;lmen
that he insisted upon. Larimer's subsequent agreemenlt to ork with rail
stops did not excuse the earlier delays he caused
third step of the complaint and grievance procedure
for preferred handling in such procedure and arbi-
tration and/or (2) relief from the job or jobs, with-
out loss to their right to return to such job or jobs,
and, at management's discretion, assignment to such
other employment as may be available in the plant
Section 107 of the departmental safety rules in the plant
provides as follows:
If any hazard exists involving the safety of crane re-
pairmen, signal men (safety men) must be provided
in the cranes adjacent to the exposed side or sides
of the crane under repair. The number, position,
and duties of the signal men (safety men) shall be
the responsibility of the authorized person in charge
of the repair job.3 2
Thus, standards governing safety considerations appli-
cable to crane inspection and repair do not condone a
work stoppage in the case of an employee who himself
unilaterally decides that a safety hazard exists.3 :' The op-
tions are to work the job and file a grievance or to seek
relief from the job by requesting reassignment. Yet the
work delay caused by Larimer and the resulting disci-
pline were not unprecedented. Twice before he had chal-
lenged discipline invoked because of protestations that
his work on a crane involved a hazardous condition in
justification. Once, in these two instances, he successfully
invoked section IC of the collective-bargaining agree-
ment in defense of his action 3 4 and on the second occa-
sion he was unsuccessful. 3 5 In this instance, the record
does not support a finding that Larimer's conduct on
May 2 was consistent with a contractually conferred
II See, G C Exh. , p. 129.
a2 See, G.C Exh. 7(b). Although Larimer testified that it was the
worker's responsibility and right under Section 107 to determine whether
signal men are needed, an arbitration award on his own grievance recites
as follows: "It is apparent from Rule 107 that Management personnel
have the discretion and responsibility of deciding the number, position
and duties of the safety men to be assigned " See G C Exh 5(b), p. 6
33 Larimer testified that it was his understanding that if an employee
feels that an unsafe condition exists he can refuse to do his assigned
work, until the condition is corrected to his satisfaction. Any such inter-
pretation is at odds with sec. 14-C of the bargaining agreement and, in
the light of Larimer's past experiences under that clause, it is difficult to
grasp the source of this "understanding."
34 See, G.C Exh 5(b) This arbitration award derives from Larimer's
grievance against discipline invoked by Respondent when Larimer ad-
hered to sec 14-C of the agreement and sought relief from a job on
which no signalman was provided. As indicated. Larimer's action on
May 2 was not excusable under the contract, and his refusal to work as
in support of a position which. from all appearances on this record, was
to the effect that, without qualification, signalmen w'ere to be prosided
on all inspection and repair jobs to be performed on overhead cranes ad-
jacent to other operating cranes. This view is at odds with sec 107 of the
departmental safety rules, which provides for such measures only if a
"hazard" exists and sec 106 thereof which provides for the use of rail
bumpers and red lights in the case of "major repairs" The above arbitra-
tion award did not override these limitations on the use of signalmen. and
specifically stated
For purposes of this case only, it is found that grievant was correct
in his allegation of the need for a safety man This decision is
not to be considered as supporting the Union's belief that Rule 107
require, the assignment of safety men in every instance, each case
must be determined on its own facts.
3a See, C Exh 5Se).
601
I)ECISIONS OF NATIONAL LABOR RELATIONS 13()ARD
right. As indicated, no provision in the contract author-
izes employees or groups of employees to engage in a
work stoppage because they determine that a hazardous
condition exists. Under the governing procedures, in the
event of the latter, the employees are afforded options
none of which permit a work stoppage, and neither of
which was invoked by Larimer on May 2. Furthermore,
as inspection and repair assignments on a regular and
routine basis require work on a crane adjacent to another
in operation, that recurrent phenomenon does not estab-
lish "conditions which are unsafe or unhealthy beyond
the normal hazard inherent in the operation in question.
It is concluded that Larimer, on May 2, acted alone
rather than in concert with other members of his crew,
while seeking the aid of signalmen. His action in that
regard was not sanctioned by the subsisting collective-
bargaining agreement and, indeed, the work stoppage
which resulted placed him in violation of section 4, mar-
ginal paragraph 4.7, thereof, 3 6 which binds "employees"
to refrain from conduct causing an "interruption or im-
peding of work. " ' 7 Accordingly, Larimer's resort to
"self help" on May 2 was not protected by the Act and,
as I find that the reassignment to the mesta spares area
was based thereon, Respondent did not violate Section
8(a)(l), (3), and (4) of the Act in that regard. I so find.
CONCILUSIONS OF LAW
1. Respondent, United States Steel Corporation, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Steel Workers of America, Local 227, AFL-
CIO-CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(l) of the Act by in
effect orally informing an employee that he would be
disciplined if he engaged in distribution of literature on
behalf of his candidacy for union office on company
property.
4. Respondent did not violate Section 8(a)(l), (3), or
(4) in any other respect.
5. The unfair labor practice found above is an unfair
labor practice having an effect upon commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
3 See, G.C. Exh. 6, p. 16.
"? Cf. Merlyn Bunney and Clarence Bunney, partners, d/b/a Bunne,
Bros. Construction Company, 139 NLRB 1516 (1962).
THI REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of the Act, it shall be
recommended that it be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the purposes and policies of the Act.
Based upon the foregoing findings of fact and conclu-
sions of law, and pursuant to Section 10(c) of the Act, I
issue the following recommended:
ORDER" 8
The Respondent, United States Steel Corporation,
Dravosburg, Pennsylvania, its officers, agents. succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Promulgating and threatening to enforce any rule
or provision prohibiting employees from distributing lit-
erature in nonworking areas on nonworking time in sup-
port of, or in opposition to, any candidate for union
office, or relating to the selection or retention of a labor
organization as the exclusive bargaining representative of
said employees, or relating to other matters involving the
exercise of Section 7 rights.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its plant in Dravosburg, Pennsylvania,
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the Regional
Director for Region 6, after being duly signed by a rep-
resentative of Respondent, shall be posted by it immedi-
ately upon receipt thereof and maintained by it for a
period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 6, within
20 days from the date of this Order, what steps Respond-
ent has taken to comply herewith.
13 In the event no exceptions are filed as provided by Sec 102 46 orf
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 10248 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall he deemed waived for all purposes.
39 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National l.abor Relations Board"
602