Walker Stainless, Inc.

National Labor Relations Board - Board Decisions

Aug 21, 2001

334 N.L.R.B. 1260 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1260
Walker Stainless, Inc. and Sheet Metal Workers In-
ternational Association, Local #18, AFL–CIO.
Cases 30–CA–14842 and 30–CA–14905
August 21, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On January 26, 2001, Administrative Law Judge John
H. West issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel and the Charging Party filed answering briefs.
The Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act when it discharged employee
Dennis Brockman. In exceptions, the Respondent argues
that it discharged Brockman for a serious breach of its
quality control procedures. For the reasons set forth be-
low, we find merit in the Respondent’s exceptions. We
shall therefore reverse the judge and dismiss the com-
plaint allegation concerning this discharge.2
The Respondent manufactures, among other things,
stainless steel pressure vessels at its New Lisbon, Wis-
consin plant. Many of these vessels must contain steel of
a high quality, as determined by standards promulgated
by the American Society of Mechanical Engineers
(ASME). ASME has given the Respondent a certificate
of authority to build pressure vessels, which the Respon-
dent stamps to let customers know that an authorized
builder has constructed them. To retain its certification,
the Respondent must have a third-party inspector on site
to review its calculations, drawings, tests, and other pa-
perwork to make sure that it adheres to proper quality
control guidelines.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We adopt the judge’s finding that the Respondent violated Sec.
8(a)(3) when it refused to administer a weld test to union organizers
Bechard and Blair and refused to consider them for employment on
August 19, 1999. We leave to compliance proceedings an evaluation of
the remedial consequences of the Respondent’s alleged post-violation
efforts to contact the organizers, and its subsequent hiring of Bechard.
Every 3 years, ASME sends a review board to the Re-
spondent to examine its records, auditing both the Re-
spondent and the third-party inspector.3
Internally, only the Respondent’s quality control de-
partment determines whether or not a piece of steel meets
ASME standards. Once quality control makes its deter-
mination, it will record the steel, identified individually
by a heat number, in a heat log, with a “Y” or “N” in an
“ASME” column. An employee who wishes to use a
particular piece of material in an ASME job must consult
the heat log. If the heat number is not found in the log,4
the employee must call quality control. Quality control
will then determine whether or not the material is good
for ASME.
The Respondent identifies the quality of material
through yellow and red tags. After an employee has as-
certained that material meets ASME standards, the em-
ployee signs a yellow tag, affixes it to the material, and
sends it to the shop floor. The signing of this yellow tag
is the last check in the quality control process. The yel-
low tag signifies to the fabricator of the vessel that
someone with quality control authority5 has verified that
the material meets ASME standards.
If, after checking the log or calling quality control, an
employee still cannot determine whether the material is
good for ASME, the employee must red-tag it. A red tag
denotes that the material is not good for ASME. As the
judge found, a red tag may also be used with material
that has just been shipped to the plant. In reference to
such material, the Respondent’s Quality Assurance Man-
ual states that “[m]aterial not in compliance, or with de-
fect or damage, will be rejected and tagged with the ‘red’
hold tag.”
In July 1999,6 Dennis Brockman was working as a
production material specialist for the Respondent. Part
of his job was to dispense steel to fabricators. In that
capacity, he was one of the few employees in the Re-
spondent’s plant with the authority to sign yellow tags.
The Respondent knew that Brockman had been promi-
nent in the Union’s unsuccessful organizing campaign a
year earlier. He was involved in an effort to renew that
3 Jobs that require material conforming to ASME standards are
called “ASME jobs,” and material suitable for use in an ASME job is
called “good for ASME,” or “code” material.
4 This is not uncommon, as there is a backlog between the receipt of
new material and the recording of heat numbers in the heat log.
5 Only 7 of the Respondent’s 400 employees in the New Lisbon fa-
cility had authority to sign yellow tags, including 2 employees at issue
here: Dennis Brockman and Dennis Roloff. In the case of flat bar,
Roloff did not have the authority to sign a yellow tag.
6 All dates are in 1999 unless otherwise indicated.
334 NLRB No. 131
WALKER STAINLESS, INC. 1261
campaign in early July. The record supports the judge’s
finding that the Respondent was generally aware of the
renascent campaign. It was also aware that Brockman
continued to support the Union. Indeed, in late July,
Brockman’s supervisor Brad Beck jokingly offered to
exchange two of the Respondent’s antiunion t-shirts for a
union shirt that Brockman was wearing.7
On July 13, the Respondent was building an 8-foot tall
pressure vessel for a company in Brazil. This was an
ASME job. Brockman asked the purchasing department
to order some more flat bar that the fabricator needed for
that vessel. Although, as the judge found, the steel was
ordered for a particular job, the purchase order did not
contain a specific job number.8 The purchase order did
require ASME-certified steel.
On July 14, receiving clerk Dennis Roloff examined
the material that the supplier had sent. Although the pur-
chase order specified ASME, the delivery receipt did not
indicate that the steel was good for ASME. Despite this
non-compliance with the purchase order, Roloff did not
red-tag the material. Either Roloff or Steve Day, a qual-
ity control technician, indicated at some time on a mate-
rial receiving record, however, that this material was not
ASME-certified.
Brockman was waiting for the material and wanted to
send it to the shop floor right away. On July 15, he
found the flat bar received by Roloff. Brockman saw
that the steel had arrived just a day earlier and was ex-
actly the size and quantity that he had ordered. Assum-
ing that this was what he had ordered, and assuming that
it was good for ASME, Brockman signed a yellow tag.
He did not check the heat log, nor did he call quality con-
trol.9 If Brockman had done the latter, quality control
would not have allowed him to sign a yellow tag for that
material.10 Because Brockman had signed a yellow tag,
the material was incorporated into the pressure vessel.
The vessel was finished, hyrdro-tested, and shipped to
Brazil.

7 Brockman also testified that he saw Beck in an area where
Brockman was distributing union cards. Although the judge inferred
that Beck must have seen Brockman, we find no need to rely on this
incident to establish the Respondent’s knowledge of Brockman’s con-
tinued support for the Union.
8 Without a job number, a purchase order does not, on its face, indi-
cate that the material is headed for a particular job, as opposed to inven-
tory.
9 The record shows that Brockman has called quality control many
times in the past.
10 This steel’s delivery receipt showed it was not ASME-certified. If
quality control had acceptable test results for that steel, it could have
still certified it if those test results showed that the material complied
with ASME standards. This material did not have accompanying test
results that would allow quality control to certify it.
On either July 29 or 30, Day was reviewing the paper-
work for the material used on the Brazil job. He discov-
ered that the fabricator had used steel which quality con-
trol had never certified for ASME. The heat number for
that material did not appear in the heat log, and no one
from quality control had given approval for its use. Day
inquired why the material had been used on the vessel,
and discovered that a yellow tag had been filled out by
Brockman. Day confronted Brockman, who admitted
that he had signed the yellow tag without making the
required inquiries in the heat log or with quality control.
Marshall Kuehl, the quality control supervisor, in-
formed Brockman’s supervisor Beck that Brockman had
signed a yellow tag without checking the heat log or call-
ing quality control. As a result, the Respondent had just
shipped a pressure vessel, stamped as ASME-certified,
that potentially contained non-ASME material. The Re-
spondent’s officials thought that they might either have
to ship the vessel back to its plant, or to send a crew to
correct the problem. Both corrective alternatives would
have entailed significant expense. After tracing the steel
back to its manufacturer, however, quality control per-
sonnel eventually acquired test results for that material.
They determined that the flat bar did, in fact, meet
ASME standards. Therefore, no expensive rework was
necessary.
On August 4, after conferring with Human Resources
Director Kathy Sletten, Beck discharged Brockman. The
Respondent’s termination notice stated that the reasons
for the discharge were Brockman’s signing of a yellow
tag without any kind of check beforehand, and the Re-
spondent’s belief that it would have to spend a great deal
of time and money to rework the vessel. Beck admitted
at the hearing that by the time he discharged Brockman,
he had already learned that no rework would be neces-
sary because the Respondent had located acceptable test
results to determine the fitness of the material.
The judge found, for reasons detailed in his decision,
that the General Counsel had met the initial Wright
Line11 burden of proving unlawful motivation for the
discharge of Brockman. The judge then found that the
Respondent had failed to carry its burden of proving that
it would have discharged Brockman even in the absence
of his protected union activity. In this regard, the judge
emphasized that receiving inspector Roloff did not red-
tag the noncompliant shipment of steel, as the company’s
manual (supported by the credited testimony of Beck)
required. Roloff received no discipline. Brockman, how-
11 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). See also Manno Electric,
321 NLRB 278, 280 fn. 12 (1996).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1262
ever, was discharged. The judge found that the Respon-
dent’s failure to discipline Roloff demonstrated disparate
treatment of Brockman, and thus underscored the unlaw-
ful motivation for his discharge.
For purposes of our review, we assume, arguendo, that
the General Counsel did meet the initial Wright Line
burden with evidence sufficient to warrant the inference
of unlawful motivation for Brockman’s discharge. In
rebuttal, the Respondent has come forward with proof
that the alleged discriminatee engaged in misconduct
warranting discharge, and that it relied on this miscon-
duct. But the General Counsel has also presented evi-
dence of disparate treatment. In such a case, an em-
ployer may still meet its Wright Line burden by showing
that “the disparity in discipline between alleged dis-
criminatees and the General Counsel’s comparators is
attributable to differences in work history, to the severity
of misconduct, or to some other factor unrelated to union
activity.” Avondale Industries, 329 NLRB 1064 (1999)
(emphasis added). Contrary to the judge, we find that
significant substantive differences between Roloff’s and
Brockman’s respective errors preclude a finding that
Brockman was the subject of disparate treatment.
We begin with the extreme seriousness of Brockman’s
misconduct. He was the last person in the Respondent’s
quality control chain who could prevent the use of unac-
ceptable steel in an ASME job. Brockman admitted that
he had a duty to first check the heat log to see if the steel
he wanted to use was listed there, but he did not. He also
admitted that, if he could not find the material listed in
the heat log, he had a duty to call quality control, but he
did not. He further testified that only quality control, not
he, was competent to determine a piece of material’s
suitability for ASME use; yet he simply assumed the flat
bar he found on July 15 was good for an ASME fabrica-
tion. It is also uncontroverted that after Brockman signs
a yellow tag, the fabricator does not check to see if that
material really does comply with ASME, but only looks
to see that the yellow tag has been filled out correctly.
After Brockman knowingly signed the yellow card
without taking the necessary steps to assure that the steel
was ASME certified, there was no turning back. The
pressure vessel would now contain material that could be
non-code, which Brockman admitted would be unsafe.12
Although the Respondent was able, after the fact, to de-
termine that the material did meet ASME standards, this
in no way minimizes the potential danger and liability
that Brockman created. Furthermore, ASME requires the
Respondent to use ASME-certified steel for certain jobs,

12 According to Day, an employee of 32 years, no one ever before
signed a yellow tag without the necessary quality control check.
and monitors the Respondent’s compliance in this regard.
Brockman’s conduct directly circumvented the Respon-
dent’s efforts to follow ASME guidelines.
Roloff’s error of omission was far less serious than
Brockman’s error of commission. Roloff’s error came at
the beginning of the process, and he did not have the
same responsibilities that Brockman had. Roloff had no
obligation to check the heat log or to call quality control.
Roloff was receiving material into the plant, not releas-
ing material for fabrication in a specific job. Certainly,
his failure to red tag the flat bar permitted Brockman to
make his mistake, but Roloff’s oversight in no way signi-
fied that the material in question was ASME certified.
Furthermore, it was not uncommon for Roloff to receive
and process steel that could be used in non-ASME jobs.
Beck, whose testimony the judge credited, stated that if
Roloff “just passed on” steel that was not ASME certi-
fied, but was supposed to be ASME certified, he could be
subject to discipline, but neither Beck’s testimony nor
any other evidence in the record suggests that any disci-
pline was mandatory in these circumstances.
Based on the foregoing, we find that the failure to dis-
charge any employee other than Brockman for conduct
resulting in the potential inclusion of noncertified metal
in an ASME fabrication does not show disparate treat-
ment.13 We therefore find that the Respondent would
have discharged Brockman even in the absence of his
protected union activity because he yellow-tagged and
sent the steel to fabrication without following the critical
quality control assurance procedures for ASME jobs.
We conclude that the Respondent lawfully discharged
Brockman for this unprecedented offense.
ORDER
The National Labor Relations Board orders that the
Respondent, Walker Stainless, Inc., New Lisbon, Wis-
consin, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling job applicants that they cannot take a weld
test because they are from the Union and not bona fide
applicants.
(b) Refusing to consider job applicants because they
are union organizers.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
13 We reject as unfounded speculation the judge’s suggestion that
Day and purchasing department personnel were also at fault and should
have been subject to discipline.
WALKER STAINLESS, INC. 1263
(a) Place Jeff Bechard and Todd Blair in the positions
they would have been in absent discrimination, for con-
sideration for future openings, consider them for the
openings in accord with nondiscriminatory criteria, and
notify Jeff Bechard, Todd Blair, Sheet Metal Workers
International Association Local #18, AFL-CIO, and the
Regional Director for Region 30 of the Board of future
openings in positions for which Bechard and Blair ap-
plied or substantially equivalent positions.
(b) Within 14 days after service by the Region, post at
its facility in New Lisbon, Wisconsin, copies of the at-
tached notice marked “Appendix.”14 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 30, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since August 19,
1999.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT tell job applicants that they cannot
take a weld test because they are from the Union and not
bona fide applicants.
WE WILL NOT refuse to consider job applicants be-
cause they are union organizers.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL place Jeff Bechard and Todd Blair in the
positions they would have been in absent discrimination,
for consideration for future openings, consider them for
the openings in accord with nondiscriminatory criteria,
and notify Jeff Bechard, Todd Blair, Sheet Metal Work-
ers International Association Local #18, AFL–CIO, and
the Regional Director for Region 30 of the Board of fu-
ture openings in positions for which Bechard and Blair
applied or substantially equivalent positions.

WALKER STAINLESS, INC.

Paul Bosanac, Esq. and Angela B. Jaenke, Esq. for the General
Counsel.
Michael H. Auen, Esq. (Foley & Lardner), of Madison, Wis-
consin, for the Respondent.
William H. Ramsey, Esq. (Previant, Goldberg, Uelmen, Gratz,
Miller, & Brueggman), of Milwaukee, Wisconsin, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. A charge was
filed on August 6, 1999,1 in Case 30–CA–14842 by Sheet
Metal Workers International Association Local #18, AFL–CIO
(Charging Party or Union) and it was amended on October 28.
A charge was filed on September 29 in Case 30–CA–14905 by
the Union. On December 20 an Order consolidating these cases
and a complaint was issued. The consolidated complaint al-
leges that Walker Stainless (Respondent or Walker) violated (a)
Section 8(a)(1) of the National Labor Relations Act (Act), by
Kathy Sletten telling applicants Jeff Bechard and Todd Blair
that they could not take weld tests because they were from the
Union and not bona fide applicants, and (b) Section 8(a)(1) and
(3) of the Act by discharging its employee Bennis Brockman on
August 4, and by failing to consider Bechard and Blair for hire
on August 19. The Respondent admits that Bechard and Blair
on August 19 (1) were not allowed to take a welding test and
Sletten questioned whether they were bona fide job applicants,
and (2) Sletten did not consider them to be serious applicants
only on that day. Otherwise the Respondent denies violating the
Act as alleged.
1 Unless indicated otherwise, all dates are in 1999.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1264
A hearing was held on February 28 and 29, 2000, in Maus-
ton, Wisconsin. On the record, including the demeanor of the
witnesses, and after due consideration of the briefs filed by
counsel for the General Counsel and the Respondent in April
2000, I make the following
FINDINGS OF FACT
Jurisdiction
The Respondent, a Delaware corporation, with offices and
places of business in New Lisbon and Elroy, Wisconsin, is
engaged in the manufacturing of various stainless steel prod-
ucts. The complaint alleges, the Respondent admits, and I find
that at all times material, the Respondent has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
Facts
The Respondent has about 400 employees at New Lisbon
and about 120 employees at its Elroy facility.
Brockman, who became a full-time employee of the Respon-
dent in 1987, contacted the Union in October 1997, and union
meetings were held beginning in early 1998. Brockman solic-
ited signatures on union authorization cards at the New Lisbon
facility and he distributed union handbills. In 1998, there were
postings that identified Brockman and others as union support-
ers.2 Brockman told Supervisors Ron Larson and Sletten, who
is the Respondent’s director of human resources, about the
postings, which he turned over to them. Sletten asked supervi-
sors and lead men about the three pages. During 1998,
Brockman and about 19 other employees at New Lisbon wore
union T-shirts.3

2 GC Exh. 4. The first and second pages of the exhibit read as fol-
lows:
Dennis you should
Not even have a job
Here.
Union is insurance for the lazy to keep their jobs
Stop take a look at the people who want the union. They are all fat,
lazy or stupid

Dennis B. = fat, lazey [sic]
Vern = fat, lazey [sic]
Marty = fat, lazey [sic]
Tod S. = fat
Mark = Stupid, lazey [sic]
Dave P. = Stupid, lazey [The word ‘stupid’ was circled.]
Randy W. = fat, lazey [sic]
the list goes on and on
if you don’t like your job quit!
Union cry babys [sic]
I hear you don’t like it when I called some of you fat, lazey
[sic] and stupid. You know what they say. “Only the true herts”
[sic]
Fat, lazey [sic], stupid union lovers
The third page of the posting reads as follows:
VOTE UNION AND WATCH THE FAT, LAZY
COCKSUCKERS STAND AROUNG ALL DAY WATCHING
YOU WORK AND NOTHING HAPPENS TO THEM! [Empha-
sis in original.]
3 Sletten testified that Brockman also wore a union T-shirt in 1999.
Brockman testified that he distributed union T-shirts during
lunch and coffeebreaks and after work and some employees
picked the T-shirts up at his house; that the first page of the
above-described postings was posted all over the bathroom
stalls in the special area, the second page was on his desk, and
the third page was attached to his computer; and that he told
Larson and Sletten about the postings but he did not hear back
from either one of these individuals.
Jeff Bechard, who is an organizer for the Union, testified that
Brockman contacted him about organizing the Respondent’s
employees; and that Brockman was the key person when the
Union needed to pass out information to the Respondent’s em-
ployees.
The Union lost the Board election, which was held at the Re-
spondent’s two facilities on October 15, 1998, General Coun-
sel’s Exhibits 2 and 3. Its objections were overruled.
Brockman was the union observer in New Lisbon.
Portions of the Respondent’s employee handbook dated May
1999, General Counsel’s Exhibit 5, read as follows:
A Word About Unions

. . . . We strongly believe that a union will not contribute any-
thing good or positive to our relationship. We also know that
the best way to continue our mutual success is to do it ‘on our
own’ without interference from a union. [p. 4.]

The performance evaluation is part of the merit pay system.
Pay increases are based, in large part, on the performance of
the employee. The written performance evaluation document
becomes part of your personnel file in the company, and may
be used to make decisions regarding promotion, retention or
other employment decisions.

On May 7, Bechard mailed a notice to the Respondent’s em-
ployees, General Counsel’s Exhibit 24, indicating that there
would be employee meetings again, and asking for employee
input regarding the location of the meetings.
On July 14, Bechard mailed a notice to the Respondent’s
employees indicating that there would be a union meeting on
July 21, General Counsel’s Exhibit 22.
Company T-shirts were passed out with the words “On our
own in July 1999. Sletten testified that the Company held
meetings on July 14 and 15, and company T-shirts with “On
our own” on them were handed out to employees; and that was
the first time since the election that this kind of T-shirt was
handed out. Sletten testified that the T-shirts were handed out
at an appreciation lunch because Walker was finishing up the
first implementation phase of a “lean” manufacturing process;
that the lunch was planned in April 1999; that since July 1999,
Walker has been giving out “On our own” T-shirts to new em-
ployees when they start; and that the “On our own” T-shirts
were distributed in the spring of 1999 in conjunction with
events involving the implementation of the “CDS lean manu-
facturing process.” On cross-examination Sletten testified that
“On our own” means “we can do things on our own, we do not
need a union here; and that these T-shirts are routinely handed
out to new employees.”
On July 15, a shipment of two 1-by-5-inch flat bars was re-
ceived at the Respondent’s New Lisbon facility. Dennis
Roloff, who was the receiving clerk under quality control, was
WALKER STAINLESS, INC. 1265
the individual who was responsible for receiving shipments
which came into the New Lisbon facility. Brockman testified
that he had performed (for almost a year) the job that Roloff
was performing on July 15; that the purchase order comes with
the material in a sealed envelope when the material is shipped;
that the purchase order for the involved material was something
that the receiving clerk, Roloff, would have seen; that the in-
volved purchase order number is SP150324; that the supplier’s
delivery receipt, General Counsel’s Exhibit 14, which comes
with the shipment, does not indicate that the material is SA36
and, therefore, you could not tell if the material was ASME
certified; that when he worked the receiving job, if the delivery
receipt did not come in the same time as the purchase order, he
would call the purchasing agent and the supplier could fax a
copy of the test report in about 30 minutes; that when he
worked as receiver if the delivery receipt did not match the
purchaser order, the first thing he would do would be to put the
material off to the side so nobody could get their hands on it;
that General Counsel’s Exhibit 15, which is dated July 13,
1999, is a material certification from the supplier which Roloff
would have seen; that General Counsel’s Exhibit 16 is a certifi-
cation dated “6/11/99” from Niagara Lasalle Corp. and the
supplier, J.T. Ryerson and Son; that the certification goes to the
receiver; that as of July 15, he did not see this paperwork; that
General Counsel’s Exhibit 17 is a material receiving record,
dated July 15, which was filled out by the receiver, Roloff; that
all of this paperwork, General Counsel’s Exhibits 13, 14, 15,
and 16, goes to quality control; that on the material receiving
record “NO” is circled on the line for “MATERIAL OK PER
SECTION II” which means that the material was not shown to
be ASME certified; that on July 15, he certified that the mate-
rial which he gave to the fabricator was ASME certified5; that
on July 15, Roloff brought the material down to him; that he
knew that the fabricator needed the material right away and the
material would not be in the heat log, General Counsel’s Ex-
hibit 18, right away; that the purpose of the heat log is to indi-

4 It has a P.O. order date of “7/13/99,” and it describes the item as “CS
FLAT BAR 1 by 5 inches SA 36, Vendor Part #FBRCS10000500.”
This copy of the original purchase order is attached to the GC’s Exh.
27. The quantity listed is 24 feet @ $6.15 for a total price of $147.60.
Sometime after the material was received “TYPE: CD 1018,
HT#H7387” was added to the purchase order. A copy of the revised
purchase order was received as GC’s Exh 13.
5 The Respondent’s position statement, dated November 9, was re-
ceived as GC Exh. 26. As here pertinent, a portion of the position
statement reads as follows:
Dennis Roloff took the information from there three sheets,
plus Purchase Order 15032, and completed the “Material Receiv-
ing Record” (W006). He recorded: the “Type: CD 1018;” The
“Heat# 7387;” the manufacturer, “Niagara LaSalle;” the Purchase
Order Number; that “SA36” material was requested; and the
marking painted on the steel; ‘561439011.” Most important, he
circled “NO” as to “material OK per Section II.” The “no” mark-
ing means it is not ASME material, and it does not meet Section
II standards. [Emphasis added and footnote omitted.]
As noted below, Roloff testified that he did not speak to the attorney
who signed this position statement until January 17, 2000, he did not
circle the “NO” on the involved material receiving record, and he did
not write on the material receiving record that SA36 material was re-
quested.
cate whether the steel is good for ASME use; that part of his
duties on July 15, was to check the heat log to see if the mate-
rial was ASME certified; that he did not check the heat log on
July 15, to see if the involved material was ASME certified
because he knew that it would not be there and that it takes 5 to
7 days to update the heat log; that Steve Day in quality control
prepares the heat log; that when he received the involved mate-
rial on July 15, it was not red tagged and it was not indicated to
him in any way that it was not ASME certified; that when he
worked as the receiver he put red tags on material and put it off
to the side if there was a question as to what the material was;
and that the Respondent did not have any of the required – by-5
inch flat bar in stock and they were waiting for this material.
On July 21, there was a union meeting at the American Le-
gion Club in New Lisbon.
Brockman testified that after the July 21 union meeting, he
handed out union authorization cards during lunch and coffee-
breaks and after work; and that he saw Supervisor Brad Beck
and leadman Todd Bunker in the area when he was handing out
union authorization cards.
Sletten testified that the Respondent has a policy of progres-
sive discipline in some cases depending on the severity of the
incident; that progressive discipline includes oral warnings,
written warnings, suspensions, and discharge; and that
Brockman had been suspended for performance but she could
not recall the date or what the performance issue was.
According to the testimony of Brockman, about 1 week be-
fore his discharge he had a conversation with Beck. Brockman
testified that he was wearing a union T-shirt with a rip and
Beck, in kind of a joking manner, asked him if he wanted to
trade the union T-shirt in for two of the Company’s “On our
own” T-shirts; and that he declined Beck’s offer jokingly stat-
ing, “[Y]ou are telling me that the union shirt is worth more
than two of the ‘On our own’ shirts.”
Brockman, who according to Sletten’s testimony was a pro-
duction material specialist, was discharged on August 4. The
position is not part of the quality control department but it is an
extension of the quality control function. Part of Brockman’s
job was to dispense steel to fabricators.6 Sletten testified that
Production Supervisor Beck told her that Brockman was termi-
nated “[f]or failure to make the necessary checks to determine
that what he was issuing to the floor was, in fact, ASME certi-
fied and for certifying it as such”7 (Tr. p. 47); and that Beck
explained to her that the tag for the material “had been properly
filled out and then the steel which was improper, which was not
certified, which had been sent to the production floor and in-
corporated into a pressure vessel [tank].”
Brockman’s termination form, General Counsel’s Exhibit 7
(which is also an attachment to the Respondent’s position
statement, GC Exh. 25), which is dated “8/4/99,” indicates, as
here pertinent, as follows:

6 A position description, which was represented by the Respondent
to be that of Brockman when he was discharged, was received as GC
Exh. 6. The description was enclosed with the Respondent’s position
statement dated September 22, GC Exh. 25.
7 ASME is an acronym for the American Society of Mechanical En-
gineers which sets standards for steel used in pressure vessels or tanks.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1266
on work order # 14696, failed to check that the material for
the job was ASME code material. The job was manufactured
without ASME material, costing a lot of time & money to re-
work. Dennis knows this is a very important step in insuring
that our products meet legal requirements and customer
needs.

Based on discussion with Brad Beck, termination is recom-
mended.

This document was not given to Dennis. Terminated by Brad.
[Emphasis added.]

Bradley Beck signed the form and next to his signature “8–10–
99” appears. Two other signatures on the form (one for witness
and Sletten for human resources) are dated August 4. Sletten
testified that she wrote “The job was manufactured without
ASME material, costing a lot of time & money to re-work.”
(Emphasis added.); that the job did not have to be reworked;
that there was no money involved in rebuilding the unit; that it
was her understanding at the time that it cost a lot of time and
money to rework; that when she subsequently learned that it did
not cost a lot of time and money to rework, she did not add this
to the termination form or write this down on any other docu-
ment; that she was involved in the decision to discharge
Brockman and she acted in conjunction with Beck; that her
decision was based on the error, the seriousness of the error that
was made, and the fact that Brockman issued material without
checking and the material was not certified; that Brockman
should have checked the “heat treat log”; that if Brockman had
looked at the log he would have seen that the material was not
listed and was not ASME certified; and that she was aware that
when employee Vern Whipple dropped a tank while driving a
fork lift, it was determined that he was not at fault and he was
not discharged.
Beck, when called by the General Counsel, testified that he
made the decision to discharge Brockman; that he told
Brockman on August 5, that he was discharged; that Brockman
was discharged because he sent material to the fabricator that
was not ASME checked; that Brockman was supposed to insure
that the involved material was ASME certified by filling out the
yellow tags that traveled with the ASME material; that the yel-
low tags are not included with the documentation that comes
from the foundry into the Respondent’s facility; that Brockman
was supposed to check the “heat log” to determine if the mate-
rial was ASME certified; that the person who cuts the material
after checking to make sure he has the right material, fills in the
“heat log”; that quality control prepares the “heat log”; that
quality assurance is responsible for printing out the “heat log”;
that after Brockman passed the involved material on to the
fabricator, no one checked to see if it was ASME certified be-
cause Brockman is the final check; that after the storage tank on
which the involved material was used was shipped, someone
checked to determine if ASME certified material was utilized;
that at the time of Brockman’s discharge, the involved tank had
been shipped; that the tank had an overseas destination but he
did not know where the tank was at the time it was determined
that there was an error; that he did not know when the involved
material came into the Respondent’s facility; that he signed
General Counsel’s Exhibit 7, Brockman’s termination form, on
August 10, and at the time he believed that it was accurate; that
although the form indicates “costing a lot of time & money to
rework,” there was no reworking on the job; that man hours
were spent tracking down the material back to the foundry but
he did not have the exact man hours; that by August 10, he
knew that the material was actually ASME certified; that Gen-
eral Counsel’s Exhibit 12 is the yellow tag which Brockman
billed out on July 15;8 that the “SA36” is the designation for
ASME certified; that the only papers he reviewed in connection
with Brockman’s discharge were the “yellow tag” and General
Counsel’s Exhibit 19, which is a certification “THAT THE
STEELS HAVE BEEN TESTED IN ACCORDANCE WITH
SPECIFICATIONS”9; that the Respondent has someone who
accepts the material shipped to its New Lisbon facility and that
individual has the responsibility to accept or reject materials
which are not in conformance with the purchase order, placing
a red tag on material that is not ASME certified; that ASME
certified material had been requested for the involved job and if
the material coming in was not ASME certified, the individual
who received that material should have placed a red tag notice
on the material; that this should have been done before the ma-
terial went to Brockman; that he did not check and he did not
know whether the individual who received the steel and passed
it on to Brockman put a red tag on it before passing it on to
Brockman; that the individual who received the steel which was
supposed to be ASME certified but was not, and just passed it
on was not doing his job and could have been subject to disci-
pline; that when he discharged Brockman he told him that “[i]t
took four employees three days of research to get the material
ASME certified” (Tr. p. 92); that Brockman then asked him if it
had anything to do with his being a union supporter and he told
Brockman “[a]bsolutely not”; that he did not know as of the
date that Brockman was discharged that the material was
ASME certified; that in view of the fact that he told Brockman
when he discharged him that it took four employees 3 days of
research to get the material certified, he knew when he dis-
charged Brockman that the material was ASME certified; and
that when Brockman was discharged he, Beck, knew that there
was no rework to be performed and that there was not time and
money spent reworking.
In response to questions of the Respondent’s counsel, Beck,
testified that he did not set up the quality assurance or quality
control system at Walker and he was not trained in how the

8 The printed portion of the tag reads as follows:
ASME MATERIAL
P.O. NO.:________________JOB NO.:_________________
HEAT NO.:_________________________________________
[ ]ACCEPTANCE BY:______________DATE:___________
above “ASME MATERIAL” the following is handwritten: “At-
ten. Mike R.” In the space below “ASME MATERIAL” the fol-
lowing is handwritten: “2 pcs. 75” Lg. [long] of 1”x5” C.S. [car-
bon steel] Flat Bar SA36.” The following purchase order, job and
heat numbers are written, respectively, on the form: “Sp15032,”
“14696,” and “H7387.” There is a check in the box on the last
line of the form, “D. Brockman” appears on the “ACCEPTANCE
BY:” line, and “7/15/99” is written on the “DATE:” line.
9 In a block stamped on the form the date of “JUL 08 1996” appears.
In the “REMARKS” section of the form the following is written:
“Meets specs for SA 36-A98 MMK 8/6/99.”
WALKER STAINLESS, INC. 1267
system operates; that the problem with the ASME material
released by Brockman on job number 14096 was brought to his
attention by quality assurance manager Marshall Kuehl; that
Kuehl told him that he did not have the information showing
whether the material that was delivered to the fabricator was
ASME; that Kuehl told him that Brockman failed to check that
the material delivered to the fabricator was ASME material;
that he believed that the tank involved was headed for Brazil;
that the tank had been shipped by the time Brockman was ter-
minated; that the involved material should have been ordered
for specific job and not for stock; that he wrote Respondent’s
Exhibit 1 which is an e-mail he sent to Sletten on August 10,
regarding the reason for Brockman’s discharge;10 and that
Brockman could not rely on the absence of red tag to assume
that it was ASME material but rather he had to check the heat
log and if it is not in the heat log he was supposed to check
further.
Subsequently Beck testified that he had no personal knowl-
edge regarding how many people were involved in determining
that the material was ASME certified and he did not know how
long it took them to reach this determination; and that this was
information he was given by Kuehl.
The following appears in Respondent’s Exhibit 4,

Walker’s Quality Assurance Manual:

4.13 Materials purchased to ASME specifications for jobs
will be checked by the Receiving Inspector, verified with the
purchase order and recorded in the Receiving Log . . . . The
Receiving Inspector will record P.O. number on M.T.R. and
C. of C. and tag base material and package with the ASME
Identification Tag (Exhibit [the yellow tag]) and enter re-
quired information such as date received, purchase order
number, vendor, location number, test/heat number and job
number. Material will be stored in the designated warehouse
‘hold’ area.

4.14 Materials purchased to ASME specifications for stock
will be checked by the Receiving Inspector, verified with the
Purchase Order and recorded using Material Receiving Re-
cord (M.M.R.) [sic] form . . . . The Receiving Inspector will
record Purchase Order Information on M.R.R. form and ac-
tual material markings and thickness of sheets and plates. He
will then mark M.R.R. form for acceptance or rejection of
material and sign form. After inspection of material the
[R]eceiving Inspector will add Walker[‘]s purchase order
number to the material. Material will then be put into stock.

10 The memorandum reads as follows:
We have A.S.M.E. material sheets we have to check our material
against so we are ensured that the right material is used for A.S.M.E.
jobs that required this material. We had a job [#14696] that the mate-
rial was not checked the wrong material was used. Mr. Brockman has
been doing this job long enough to know that this is s very important
step in our process. This was a hugh mistake that took a lot of time to
sort out and make right. From past records their has been perform-
ance issues with Dennis Brockman this was the one of many that
broke the camels [sic] back.
On redirect by counsel for the General Counsel Beck testified that he
did not know for a fact whether the material was checked by
Brockman.
The M.R.R. form is given to Q.C.L.T. for attachment to the
mill test report.

To use stock material for a job the heat number & P.O. num-
ber will be verified and recorded in the Receiving Log with all
necessary information and a ID identification tag . . . . [the
yellow tag] will be made out and attached to material. The
Receiving Log & ID tag will not be signed without confirma-
tion from the Q.C.L.T. that the required M.T.R. is acceptable.
Signing of Receiving Log & ID tag will release material for
job.

4.15 Material not in compliance, or with defect or damage,
will be rejected and tagged with the ‘red’ hold tag . . . . Non-
acceptable material will not be used for ASME code vessels
unless corrected and accepted by the Q.C.L.T. Any welded
repairs will be performed with the prior concurrence of the
A.I. Non-conformities noted during receiving or fabrication
shall be documented on the Non-Conformity Report or Mate-
rial Receiving Record Form . . . . The A.I. will be notified of
proposed disposition.

Marshall Kuehl, who is the quality control lead technician
and who is in charge of quality control, testified that in July and
August 1999, Steve Day and Tim Meyer worked for him; that
Day basically had the same job as he does and Meyer is the
shop inspector; that the involved tank was a pressure vessel, 72
inches in diameter and about 8-feet tall; that the tank was to be
delivered by sea over Milwaukee, Wisconsin, to Brazil; that
Walker was required to go through third-party inspection by
Hartford Insurance on the tank; that Walker has a certificate of
authority from ASME to build tanks where over 15 pounds of
pressure and vacuum are involved; that every 3 years a review
board from ASME comes to Walker and reviews its quality
control system, including its past records, to make sure that
everything was done correctly by Walker and the third-party
inspection; that the involved tank was not at the facility when
he got involved; that “SA36” is an ASME specification; that
the involved flat bar was required to be ASME material be-
cause it was used for reinforcing; that the person who releases
the material “from stock” (Tr. p. 205) is supposed to check the
heat number, the PO, the heat log or call the quality control
department and verify that the quality control department has
acceptable test reports for the material; that the heat log will
indicate whether the material is ASME certified; that approxi-
mately 50 percent of Walker’s production involves non-ASME
jobs; that Walker’s Quality Assurance Manual, Respondent’s
Exhibit 4, covers the procedure for releasing stock material to
the floor; that once a material is released to the floor, Meyer
only verifies that the markings on the material (the heat and PO
numbers) match the markings on the yellow card and that the
yellow card is signed; that Meyer signed the inspection sheet
(also referred to as the ASME traveler) for the involved mate-
rial, Respondent’s Exhibit 2, on July 16; that “after” (Tr. p.
212) the job is finished, his office verifies, by pulling the
“MTRs” (metallurgical test reports),11 Respondent’s Exhibit 3,
11 As noted below, quality control technician Day testified that
“MTR” is the acronym for material test report. And par. 4.14 of R. Exh.
4 refers to a “mill test report.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1268
that the material used was what was called for on the drawing;
that Respondent’s Exhibit 5 is the specification requirements
for SA-36; that when Day “was reviewing the MTRs he came
across the ones for the support bars that we did not have an
MTR for” (Tr. p. 215), namely heat number H7387; that Day
told him that he did not have an MTR for the involved material
and he was going to go through purchasing to get it; that pur-
chasing had to go back to the Mill to see if they could get an
acceptable MTR; that if the bar stock did not meet ASME re-
quirements, the support bars would have to be replaced; that
when Day told him that they were missing a material test report
for H7387 he told Beck that they had a tank that was probably
going to have to be brought back or they would have to send a
crew out to fix the problem if they could not get the test reports;
that the test report would be an acceptable MTR with the SA-36
specifications showing all the testing that had been done on the
material at the mill; that his department investigated, retrieved
the yellow card, determined that the materials were released,
and Meyer followed the procedures as far as verifying that the
items were marked correctly; that it was determined that the
mistake was made by Brockman; that this kind of mistake is
important because Walker has procedures that are written and
the ASME and National Board expect Walker to follow them
strictly in order to maintain its certificate of authorization; that
this mistake has never happened before; that Walker received
an acceptable test report about a week or a week and a half after
the problem was found (see the last page of R. Exh. 3.); that he
initialed the test report and dated his initials “8/6/99”; that he
told Beck that they would not have to bring the tank back or go
and repair it; that he believed that he told Beck that Brockman
was the one who released the material; that under the quality
control procedures if somebody wants to release code material
to the floor and they cannot find the heat number or purchase
order on the log, they are supposed to call him or Day and they
would determine if they had an acceptable mill test report; that
a red tag is used if material comes in specifically for a job it
would be red flagged while they were waiting for a test report;
and that if the material is ordered with an SA-36 but it does not
come in with an indication that it is SA-36, the receiver is not
supposed to do anything with a red tag

because over half of our vessels (tanks) are non-code. Most
of our material is ordered off from a part number, including
this one. And when that part number is broken down as far as
sending out a purchase order it gives out the specifications
and it automatically includes an ASME spec because we try
to maintain material on hand that can be used for ASME, but
we know—and we do have a lot of inventory that cannot be
used. [Tr. 222–223.]

It is noted that Walker’s involved original purchase order de-
scribes the material as Walker part number FBRCS10000500
and as CS FLAT BAR 1-by-5 inch SA36, Vendor Part
#FBRCS10000500. It is also noted that the involved delivery
receipt, General Counsel’s Exhibit 14, specifies, as here perti-
nent, reads as follows:

CUST ORDER REFERENCE DESCRIPTION
SP15032 561439 01 01 001 CD 1018
PR 1xFLTx10FT8/12FT
DATE 07/13/99 Green
T/R WITH SHIPMENT PART#FBRCS10000500
SALESREP # 522 EXT. 0239 HEAT# H7387

Kuehl further testified that he wrote the following on the de-
livery receipt, General Counsel’s Exhibit 14: “Dennis Roloff,
delivery receipt of the 1 by 5 inches bar. CD 1018 is refer-
enced. Material was accepted because it was ordered for non-
ASME use.” As noted above, Walker’s involved purchase order
specified, as here pertinent, “SA-36” which indicates that it is
ASME material. Kuehl testified that he made this note in con-
nection with his investigation of the problem; that only seven
people in the plant have the authority to sign yellow tags be-
cause Walker wants to maintain a strict line to make sure that
only acceptable ASME materials are used;12 that on the in-
volved material receiving record, General Counsel’s Exhibit 17,
Roloff would not have circled “NO” on the “MATERIAL OK
PER SECTION II” line since quality control fills out that par-
ticular line; that Roloff is not expected to fill out that particular
line because the receiver is not expected to be familiar with all
of the required markings for ASME and quality control verifies
that the actual markings do meet the ASME requirements;13 and
that this particular line does not involve the review of the mate-
rial test report.
On cross-examination Kuehl testified that he did not see
whether Roloff circled the “No” on the involved material re-
ceiving record and he does not know; that he or Day usually
circles the “No” or “Yes” but he did not have specific recall of
doing it himself or seeing Day do it on the involved form; that
in the Respondent’s attorney’s November 22 letter to the
Board, General Counsel’s Exhibit 27, it is correctly indicated
that everything below this line of this form is filled out by the
quality control department; that form “WOO01A” attached to
the aforementioned November 22 letter is the original purchase
order for the involved material;14 that since there were two
different heat numbers for the involved item on the inspection
sheet that would suggest that there was not enough material on
hand and as a consequence more material had to be ordered for
that particular job to be completed; that one of the two pieces
on the involved yellow tag was taken out of inventory and did
meet ASME standards; that Roloff, as receiving inspector,
should have known if the material that comes in is in confor-
mance with the purchase order; that the purchase order indi-
cates that “SA-36” material was ordered; that “SA-36” on the
involved purchase order indicates that the material should have
been ASME certified; that Roloff should have known that
certifications were required on the involved material if it came
in as “SA-36”; that Roloff, as receiving inspector, is in a
position to know if the material that comes in is in conformance
with the purchase order; that if the material is strictly going to
be used for ASME “it has to have the test report markings, all
be for inventory, our have to be correct. But if its going to
12 One of the seven is Roloff.
13 According to the testimony of Kuehl, the following should be on
the material or on a tag attached to the material: the heat number, the
type, purchase order, and the manufacturer.
14 It contains the same information as GC Exh. 13, except it does not
contain “TYPE: CD 1018, HT#H7387” under the description of the
item.
WALKER STAINLESS, INC. 1269
be correct. But if its going to be for inventory, our policy a lot
of times . . . . [is] to accept it and put it in the stock. Even if it
doesn’t” (Tr. 233); that Roloff still has to put the heat number
and any other markings on there have to remain on it; that
Roloff has the purchase order when the shipment comes in; that
Roloff would have looked at the involved purchase order which
indicates “SA-36” when the involved shipment was received;
that when Roloff saw that the shipment did not indicate “SA-
36” he would go back to purchasing and purchasing would
come to him if purchasing decided to keep the material and if
they knew that it definitely used for ASME but if its for inven-
tory, a lot of times they do not; that “[a] lot of times when they
[the Purchasing Department] get that steel it’s because it’s to be
used for a specific job” (Tr. 236); that Walker also has blanket
steel that’s for just inventory; that the involved purchase order
was not for a specific job; that he was not 100 percent sure that
Walker purchases all of its 1-by-5 inch flat bar to meet SA-36
specifications but they try to order almost all of their steel to
ASME specifications; that he is not aware of Walker ordering
non-SA-36 1-by-5 inch bar;15 that he thought that Roloff would
have received General Counsel’s Exhibits 14 (the delivery re-
ceipt), 15 (the material certification), and 16 (the certification)
with the involved shipment; that General Counsel’s Exhibits
14, 15, and 16 would not indicate whether the material is
ASME certified because the quality control department does
not have initials on it anywhere at that point; that when the
involved shipment came in, Roloff would have known that it
was not SA-36; that he did not believe that the material
Brockman released had a red tag on it before he got it; that the
Receiving Inspector is the one who puts a red tag on the mate-
rial if one is required; that at some point (described by the wit-
ness as “later”) he asked Roloff to retrieve the delivery receipt;
that he wrote on the delivery receipt, General Counsel’s Exhibit
14, “Dennis Roloff, delivery receipt of the 1-by-5 inch bar.
CD1018 is referenced. Material was accepted because it was
ordered for non-ASME use”; that it is not entirely correct that
the purchase order for this particular shipment indicates that it
was for ASME use because while it was ordered to SA-36
specification, that does not tell what it is going to be used on;
that SA-36 means that it is ASME certified; that the purchase
order, therefore, specifies that the Company was ordering

15 GC Exh. 28 is a “MATERIAL REQUEST SHEET” which reads,
as here pertinent, as follows:
Name: M. Rusch
Items requested: 1X5x75-2pcs . . . .
Date: 7/9/99
Deadline time: 7/12/99 A.M.
Location/Deliver to: Sand Blast then Door #2
Quantity: As listed
Time that the form is filled out: 300 PM
ASME. Y N [the “Y” was circled]
The material will still have to be bought to the . . . . toolroom
to be written up and signed off. This question is asked only to
provide information as to whether or not the material is ASME
qualified.
Work Order No. #: 14696
Notes: Material for supports on . . . . and Bottom head.
At the top of the involved yellow tag the following appears:
“ATTEN. MIKE R.”
ASME certified; that nonetheless he wrote on the delivery re-
ceipt that it was ordered for “non-ASME use [b]ecause I had
been told that this had been brought in for maintenance to use.
The material was not for use in the shop. That’s why I wrote
that” (emphasis added); that he was not sure when he wrote this
note on the delivery receipt but it was after the material was
used on the tank; and that the mill test on the involved material,
Respondent’s Exhibit 3 (GC Exh. 19 is a copy of the same
document.), was presented to him by Day and he did not know
whether the document was faxed or mailed to Walker.
On redirect, Kuehl testified that in 1999 if material came in
for stock it is signed off, with a yellow tag, when the material is
requisitioned from the shop and not when its received; that no
one can fill out a yellow tag and certify that the material is
ASME material without finding the heat log index or contacting
quality control; that the receiving inspector is not in a position
to determine whether a particular piece of steel, in fact, meets
ASME certification requirements without checking the heat log
or calling quality control; that quality control makes the entries
in the heat log; that the Receiving Inspector has to compare the
material ordered to the material received; that the line on the
material receiving record which specifies “MATERIAL OK
PER SECTION II: YES NO” signifies that quality control has
accepted the actual markings that they’ve documented as meet-
ing the requirements for that specification; that this line on the
material receiving record speaks to a requirement that the
ASME material be marked a certain way in accord with Section
II; that the Quality Assurance Manual, Respondent’s Exhibit 4,
has no application to material that is not ASME code material;
that CD1018 is not an ASME code material; that usually SA-36
is marked on the material by means of a tag or it is painted on;
that if the receiving inspector looked at the material and there
was no SA-36 marked on it, the person would conclude that the
material “probably [is] no good for ASME” (Tr. 259); and that
even with the designation of SA-36 on the material, quality
control has to review MTRs after the material markings have
been verified and checked out before it can be used for ASME.
On recross, Kuehl testified that no one at Walker could just
look at a piece of steel and determine that it is ASME certified;
that in order for anyone at Walker to determine if the material
is ASME certified, they would have to look at paperwork; that
Walker does not do its own testing but relies on the markings
on the material as well as documentation;16 that paragraph 4.15
in the Quality Assurance Manual, material not in compliance,
(quoted above) deals with materials which are not in compli-
ance with ASME standards but “that deals with material more
so that was ordered for a job specific than it does for stock” (Tr.
262); that the manual deals with the treatment of material that
comes in that is not ASME only if it came in for an ASME tank
and Walker had to reject it; that if Walker fills out a purchase
order for ASME material, and the material that came in is non-
ASME rated, the receiving inspector has to notify the purchas-
ing department because it is not in conformance with the pur-
16 Kuehl testified that Walker takes the material test report supplied
to it by the mill with the incoming steel and compares it to the informa-
tion on the ASME code and if it matches or exceeds, the material test
report accepted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1270
chase order; that he did not know if Roloff contacted the pur-
chasing department in connection with the material involved
here; and that he did not speak to anyone in the purchasing
department as part of his investigation of this matter and no one
in the purchasing department contacted him about this ship-
ment.17
Subsequently, Kuehl testified that he told Beck that there
were four people involved as far as backtracking, namely him-
self, Day, and purchasing but he did not know if he told Beck 3
days; that if Brockman had spoken to quality control before
releasing the involved material, and if Walker wanted to use the
involved material (it was ordered as SA-36 which was ASME
certified) for an ASME application, Walker would have gone
through the same procedure it went through, namely going back
to the mill to get the test report; that so as far as anyone’s time
is concerned, that time would have been lost one way or the
other; that while he testified earlier that CD1018, which is how
the involved material was described, is not ASME code mate-
rial, in this instance the mill had done enough tests so that it
could be certified as SA-36; that “he believed” that Roloff told
him that the involved material was brought in for maintenance
to use; and that he did not verify this, he did not speak to any-
one in maintenance or purchasing to determine if maintenance
had ordered it.
On further redirect, Kuehl testified if Brockman had called
quality control regarding the involved material, the material
would not have been released; that rather than pursue another
test report quality control would have first asked if they had
other material to use; that if they did not have other material to
use then quality control would have went through purchasing
just as it did; that he was not aware of whether they had other
material that could be used; and that General Counsel’s Exhibit
14 indicates that each of the two bars involved was 10-feet long
and he was not sure what the designation “24 by 4 inches” on
the delivery receipt meant.
Steven Day, who worked in quality control in New Lisbon in
July and August 1999, testified that he was a quality control
technician and he did not supervise anyone; that one of his jobs
was to take material test reports that came in with materials and
check them to make sure that proper chemicals or proper physi-
cals are there and then he enters the information into the com-
puter log, specifying heat number, a purchase order number,
whatever size the material was, the type of material (i.e., 304,
316, or carbon steel), and then indicate “yes” or “no” as to
whether it was good for ASME use; that a yellow tag certifies
that material can be used for the job it is assigned to; that the
person who signs the yellow tag is supposed to look at the heat
log to determine if the material is suitable for the proposed use;
that if the heat number is not in the heat log, the person is sup-
posed to call him or Kuehl so that they can check the material
test report on the involved material against the carbon steel

17 Kuehl testified as follows:
JUDGE WEST: I’m sorry. A question. Did you speak to peo-
ple in purchasing as part of your investigation?
THE WITNESS: I didn’t. I think—I’m not sure, I think Steve
Day did, but I really didn’t get involved as getting [sic] us a test
report.
specifications; and that if after he checks the material test report
it is determined that the material is not okay for ASME use,

[w]e’d say they could not use it. Very seldom would we—we
have a red tag system that could be used, but we don’t
normally use that a lot for raw material because we use a lot
of the material for other jobs that aren’t ASME, and so when
you put a red tag on something that normally ends up setting
the material aside and nobody uses it for anything because it’s
got a red tag on it. [Tr. 283.]

Counsel for the Respondent then elicited the following testi-
mony:

Q. Okay. The red tag would be affixed after some-
body determined it was not code material?

A. Right. Right. [Tr. 283.]

Day further testified that Respondent’s Exhibit 8(a) is an exam-
ple of the Respondent’s ASME certified material receiving log
initialed by Brockman specifying the name of Marshall, who is
in quality control, and the Respondent’s Exhibit 8(b) is the page
from the certified material receiving log which covers the in-
volved material initialed by Brockman which does not also
specify the name of someone in quality control; that Brockman
did not call him to release the involved material; that after the
job is completed, a material test report for each of the heat
numbers in the traveler (or the quality control manufacturing
check list) is checked to make sure that it is acceptable ASME
material; that when he reviewed the heat numbers, he could not
find a material test report to correspond to heat number H7387
which is the heat number for the involved material; that he
found the documentation for material in a folder for material
that he has not had a “chance to review the MTRs yet. . . . [and
he] and he found this H7387 in that folder” (Tr. 293), and he
determined that it was not acceptable SA-36 material; that he
then told Kuehl that they had a problem and he spoke to
Brockman to see if he had an additional material test report for
the involved material; that when he told Brockman that they
had a mistake and that the material was not proper material for
the tank, he thought Brockman said that they needed the mate-
rial, and it was ordered properly so when it came in, he released
it; that he would have told Brockman that he did not have the
authority to release material without the material test reports
being okayed; that at the time only he and Kuehl had the au-
thority to okay a material test report and certify that something
was code; that Brockman’s releasing the involved material
without calling quality control was a violation of the quality
control system and “[i]t could be a big mistake” (Tr. 296); and
that he could not think of a prior situation where a yellow tag
was written out without checking.
On cross-examination, Day testified that he believed that the
material which Brockman released on July 15, had just come
into the facility; that he suspected that the material was in re-
sponse to a purchase order requesting material that was ASME
certified because the majority of the material that Walker orders
is ASME certified but he had “no way of really knowing for
sure if that purchase order was for . . . .” ASME certified mate-
rial (Tr. 298); that in looking at the purchase order, attached to
General Counsel’s Exhibit 27 while he testified at the hearing
WALKER STAINLESS, INC. 1271
here he could tell that the purchase order was a request for
ASME material because it specifies “SA-36”; and that if a
shipment arrives in response to this purchase order and it is not
ASME certified, the Receiving Inspector is responsible for
notifying

[e]ither quality control—probably first he would maybe notify
purchasing that material that was ordered isn’t exactly what
was—and normally as far as quality control being notified
that it came in wrong, no, not really. We would find that out
after he would turn in the material receiving record or some-
thing like that. [Emphasis added.]

Day further testified on cross-examination that the purchasing
department would not contact quality control after Roloff con-
tacted them; that Roloff then did something to indicate that the
involved material was not ASME material in that he filled out a
portion of the material receiving record, General Counsel’s
Exhibit 17; that as of July 15, Roloff knew that the material was
not in conformance with the purchase order;18 that nonetheless
Roloff did not have any obligation to do anything besides call-
ing the purchasing department; that purchasing would only
know what the purchasing order indicates and that is that it has
to be SA-36;19 that while he spoke with Brockman about this
matter, he did not speak with anyone in the purchasing depart-
ment regarding the investigation of this matter and with respect
to whether there was any additional documentation for the in-
volved material after it had been used for the tank; that he did
not speak to Roloff after the material was used to determine if
there was additional documentation; that he probably (with a
high degree of certainty) circled the “No” on the “MATERIAL
OK PER SECTION II:” line of the involved material receiving
record, General Counsel’s Exhibit 17; that he could not posi-
tively testify that he circled this “No”; that Roloff could have
circled this “No” but he doubted it; that he wrote “Meets re-
quirements of Sec II Div-1” before the material receipt forms
were copied and distributed to be filled out and he did not sign
the involved material receipt form because the material did not
meet anything so he just circled “No” that it was not good; and
that he could not answer 100 percent that he circled “No.”
Subsequently Day testified that the involved tank was hydro
tested on July 23; that he believed that the tank was shipped out
the day after it was tested, it had to go pretty quickly, and
Brockman told him that they needed the involved bar to finish
the tank because it was a rush; that he did not verify for him-
self that it was a rush; that more than likely the tank had been
shipped out of the facility before he started reviewing the
documents; that it is standard operating procedure for the pa-
perwork to be forwarded to the vendee after the tank is shipped;
and that Walker tries to review all the paperwork before the
tank leaves so that if there is a problem, it can be corrected
while the tank is still in the plant.
Roloff testified that he was the receiver in July and August
1999, at the involved New Lisbon plant; that he signed the

18 Counsel for the Respondent stipulated that (a) “the purchase order
identified the material that Brockman released,” (b) the involved yellow
tag references that purchase order, and (c) the material Brockman re-
leased came in on that purchase order.
19 As indicated above, SA-36 is ASME certified.
delivery receipt, General Counsel’s Exhibit 14 and stamped it
“RECEIVED JULY 14 1999”; that he was the one who re-
ceived the involved shipment, which consisted of two pieces
totaling in length about 24 feet; that he did not write “ordered
SA36” on the “Material Certification” which came with the
involved shipment; that he received General Counsel’s Exhibit
16, a “CERTIFICATION” with the involved shipment; that he
did not write “SA36” on the material receiving, record on the
line for “PO # INFORMATION: SPEC” and he does not know
who did; that normally he does not get or see the purchase or-
der form; that the involved purchase order does indicate
“SA36”; that when the involved material was received he told
one of the two purchasing people, he was not sure which one,
that he felt that the material was for maintenance because
maintenance had ordered that type of material to do
maintenance work; that he “thought” that he had this
conversation with purchasing; that when he received the
involved material he “recognized that this type is not the
normal type for stock . . . . [b]ecause that—the only time we get
that [CD 1018] in is for the maintenance department” (Tr. 323);
that someone in purchasing told him “we might as well keep it
because this probably is for use for maintenance department”
(Tr. 324); that he does not look at Walker’s purchase order
when he unloads the truck to see if Walker is receiving what it
ordered; that when he filled out the “MATERIAL RECEIVING
RECORD” he placed the material on a “ASME hold cart” in
the hold area; that it remains on the ASME hold cart in the hold
area until the material receiving record is completed, “[i]t goes
through Marshall Kuehl and Steve Day and they determine
whether it is or is not good for ASME hold” (Tr. 326); that the
“material cannot be removed from that cart until such time as it
has been—material receive and record has went through
Marshall Kuehl and Steve Day and they have checked it and
when it comes back whether it is good for ASME or it’s not
good for ASME we then mark it” (Tr. 327); that whether bar
complies with ASME certification or not, it is placed on the
same kind of cart until it is checked in with the material
receiving record and it is determined whether it is good for
ASME, then it is marked and only then can it be put away into
the inventory; that he did not circle the “NO” on the line of
involved material receiving record indicating “MATERIAL OK
PER SECTION II: YES NO”; that to his knowledge when he
received the involved material it was not marked in any way
“SA-36”; that he took the documents he received with the
shipment to quality control; that after he put the material on the
cart or after he spoke to someone in the purchasing department,
he did not have some obligation to put a red tag on the material
“because it is on a hold cart it doesn’t need to have any sort of a
red tag on it. A red tag means a hold that no one is to use that
material because there is something wrong with it, some
problems. The hold cart is the same thing.” (Tr. 330–331;
emphasis added.) On cross-examination Roloff testified that after the material
is placed on a hold cart

[t]he paperwork is processed and once the material receiving
record is given to the two gentlemen to check, they check this
material and they will stipulate either it is ASME certified or
it’s not and at that time I take the record with me and mark the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1272
material with the heat and the case of bar stock, the heat, the
PO and the type, minimum markings. (Tr. 331–332.)

Roloff further testified that after the documentation went
through Kuehl and Day, he marked the involved material with
the heat number, the PO, and the type; that he did not have
direct knowledge whether the involved material was passed on
to Brockman; that he can type the purchase order number into
his computer and it shows him what the amount is and what the
material is and he inputs the actual amount received; that with
respect to whether “SA36” would be indicated in his computer,
he would have to move the description field further open to see
any more description other than the part number; that the
“SA36” would be there but normally he does not see it unless
he opens the computer screen up further; that Kuehl contacted
him about a problem with the involved material, asking him to
see a copy of the delivery receipt and they looked at the mate-
rial receiving record; that Kuehl asked him if it had been
marked and he told Kuehl that it had; that the hold cart with the
involved material on it would have been right near the area
where Brockman works; and that the area where Brockman
works is not designated solely for ASME material.
On redirect, Roloff testified that the involved material had
the purchase order number on a tag when it arrived at Walker’s
facility; that he wrote “CD 1018” on the material; that he took
the involved documents to Quality control on July 15; that
“[o]n the 15th [of July he spoke with] . . . . Steve Day [in Qual-
ity control] [and] . . . . [h]e wrote this . . . . this material receiv-
ing record and he checked it and he said that it did not meet
ASME Day when he gets this, he has all the specifications for
ASME, and he reviewed that material receiving record and he
said that it did not meet what we need to have for ASME” (Tr.
344); that Day, “I believe,” circled the “NO” on the involved
material receiving record; that General Counsel’s Exhibit 16 is
called a certification; that quality control does not do a com-
parison of the actual numbers on a certification to the carbon
steel specifications; that Day takes the material test report and
determines whether or not it meets the carbon steel specifica-
tion set by ASME; and that Kuehl and Day take the material
test report and determine whether or not it meets the carbon
steel specifications set by ASME.
Subsequently Roloff testified that most of the CD 1018 that
comes in for maintenance comes in with a job number; that the
involved shipment came in with only a part number which
caused him to question to make sure that it was for mainte-
nance; that when the involved shipment raised a question in his
mind, the first thing he did was to go to the purchasing depart-
ment; that when he went to the purchasing department they told
him that it was probably for use by the maintenance depart-
ment; that he could not remember which of the two in purchas-
ing he “got a hold of”; that he received the shipment late in the
day on July 14, and the following morning he went to Purchas-
ing; that since he spoke with the person in purchasing over the
telephone he could not say that the person either physically
pulled out the involved purchase order or retrieved the informa-
tion that was in the computer with respect to the purchase or-
der; that he did not go to purchasing regarding the involved
material but rather he called them on the telephone20; that he
did not go to maintenance and ask them if they ordered this
item; and that he has no personal knowledge whether anyone in
the purchasing department went to maintenance and asked them
if they had ordered this item.
Sletten testified that early in the first week of August 1999,
she had discussions with Beck and Seufzer about the termina-
tion of Brockman; that Brockman’s discipline record was re-
viewed and it was noted that he had 3 suspensions and 13 writ-
ten warnings; that Walker follows progressive discipline in
some cases but before Brockman’s discharge there had been
termination(s) without a prior suspension but she could not
remember how many; that Walker does not have any kind of an
automatic rule about suspension in connection with discharge;
that it was her understanding that Brockman created a serious
problem because he was the final checkpoint in the process;
that the election observer for the Union at Walker’s Elroy facil-
ity is still employed by Walker; that named employees other
than Brockman wore union T-shirts in 1998 and 1999; and that
she did not have any knowledge in 1999 of anyone passing out
union authorization cards or anything on behalf of the Union
before Brockman’s discharge.

20 As here pertinent, Roloff testified as follows:
JUDGE WEST: Okay. So when it raised a question in your
mind as to whether it was for maintenance the first thing you did
was you went to the purchasing department?
THE WITNESS: Yes.
JUDGE WEST: This is the same purchasing department
which issued a purchasing order for CS flat bar one by five SA–
36, is that correct?
THE WITNESS: Yes.
JUDGE WEST: And notwithstanding that, when you went to
this purchasing department and said I have a question about this
shipment they said to you we agree with you, that is for mainte-
nance?
THE WITNESS: They felt that it was probably for use for the
maintenance department.
JUDGE WEST: Who in purchasing told you this?
THE WITNESS: I—there’s two people there and I’m sorry I
can’t remember which one I got a hold of.
JUDGE WEST: Did the person that you were speaking with
on the 14th, you went that same day on the 14th?
THE WITNESS: No, on the 15th, when I wrote this.
JUDGE WEST: You went the 15?
THE WITNESS: Yes.
. . . .
JUDGE WEST: The following morning as opposed to the af-
ternoon you went to purchasing?
THE WITNESS: Yes.
JUDGE WEST: You spoke with someone in purchasing, you
raised your concern?
THE WITNESS: Okay. The person you were speaking with,
did they pull up either the physical document or did they go to the
computer and pull up—retrieve the information that was in the
computer with respect to the purchase order?
THE WITNESS: I can’t tell you that. That was over the
phone.
JUDGE WEST: It was over the phone do you didn’t go to
purchasing, you called them on the telephone?
THE WITNESS: I called them on the telephone, yes.
[Tr. 347–348.]
WALKER STAINLESS, INC. 1273
On cross-examination Sletten testified that the 13 written
warnings go back as far as February 19, 1987; that she believed
that Beck reviewed Brockman’s file; that the problem with the
involved material was serious because Beck thought that it was
going to take a lot of time and money to rework the tank; that it
was her understanding that Walker was going to have to send a
team out to where the tank was located or have the tank shipped
back to be rebuilt; that as of August 4, she did not know if the
tank had to be reworked; that she could not recall if the three
suspensions during Brockman’s employment history were all
for absenteeism21; and that as indicated in General Counsel’s
Exhibit 25, the three suspensions were for absenteeism and
Brockman never had a suspension for performance.
Brockman testified that Beck told him that he wanted to
meet with him and when he went to Beck’s office, Beck told
him, in the presence of Dawn Seufzer, that he was going to
have to let him go because of his job performance in that the
flat bar used on the ASME tank that went out was not ASME
material; and that he asked Beck if this was about the union
activity, about the Union, about FMLA; and that Beck said
“No.”
On cross-examination Brockman testified that the only peo-
ple who can sign a yellow tag in the involved plant are those
who have been trained by quality control; that the purpose of
signing a yellow tag is for the person releasing the material to
certify that the material being sent to the floor meets code; that
the yellow tag indicates that someone has in fact checked; that
the heat log indicates whether a particular piece of material is
ASME certified; that he did not see the purchase order or the
material receiving record before filling out the yellow tag; that
the only way that it is established that the material is ASME
certified is if it is on the heat log; that there is one other way to
establish that the material is ASME certified and that is to tele-
phone Kuehl or Day in quality control and ask them to check
and give their approval if it is ASME material; that the material
is not supposed to be released to the floor if the information is
not on the heat log; and that he released the involved material
without checking the heat log or telephoning Kuehl or Day.
On redirect, Brockman testified that when the involved mate-
rial was delivered “[i]t came in immediately and they knew I
needed it so they rolled it down to me. He [Roloff] must have
filled this [the material receiving record] out and rolled it [the
flat bars] down to me and I cut it. They were waiting for it.”
(Tr. 170–171.)
Subsequently Brockman testified that he assumed that the
involved material was ASME certified because (1) there was no
red tag on it or anything else on it to indicate to him that it was
not ASME material, (2) non-ASME material is not usually kept
in his area (3) the involved material was brought directly to
him, (4) the involved material was not placed in stock and he
did not pull it out of stock, and (5) he personally had tele-
phoned purchasing agent Ritch Rosbaum and told him that he
needed the ASME certified 1-by-5-inch flat bar.

21 As noted above, Sletten originally testified that Brockman had
been suspended for performance.
On August 19, the Respondent held a job fair at its New Lis-
bon location.22 Sletten testified that she happened to be at the
front door of the facility when two union organizers appeared at
the door; that she recognized the two organizers, Bechard and
Blair; and that they had union T-shirts on. Both of the organiz-
ers filled out applications. General Counsel’s Exhibit 9 Kathy
Sletten also testified that she recognized her voice on a tape
recording, General Counsel’s Exhibit 10, the words on the tape
recording are the words she said, and she was speaking with
Jeff Bechard at the time of the tape recording on August 19. A
transcript of the tape recording was received in evidence as
General Counsel’s Exhibit 11. As here pertinent it reads as
follows:

KATHY: All set?
JEFF: Yep.
KATHY: Okay.
JEFF: Do we get to, uh, take a tour of the facility?
KATHY: No, we’re not giving tours.
JEFF: Oh, some of the guys got took out.
KATHY: One guy took a weld test (couple of words
unclear)
JEFF: Oh, could I take a weld test?
KATHY: No.
JEFF: How come?
KATHY: Because, you guys know why you’re here.
You’re not here to apply for jobs.
JEFF: I’d like to work here.
Kathy: Well, we’ll check this over and maybe give you
a call.
JEFF: Can—do you have to do something special to
take a weld test? Is there some written—
KATHY: Are you already a welder?
JEFF: Yeah.
KATHY: Well I’m not going to give you a weld test.
I’m not
going to take you down on the floor.
JEFF: Why not?
KATHY: Because you are here from the Union and
I’m just not going to do that. You’re not here for—
JEFF: I’d like—
KATHY:—job.
TODD: Did, uh, these other guys get interviews?
22 the announcement of the job fair was received as GC Exh. 8. As
here pertinent, it reads as follows:
JOB FAIR
Thursday, August 19
Walker
Stainless Equipment Company
625 State Street, New Lisbon, WI
Stop by and see us on Thursday, August 19. you can fill out
an application, speak with a Walker Representative, and find out
why Walker is one of South Central Wisconsin’s leading employ-
ers.
We will be accepting applications and doing interviews dur-
ing the following times:
9:00 to 11:00 a.m.
and 5:00 to 7:00 p.m.
. . . .
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1274
KATHY: I’d wish you’d leave now. I think you came
up here you—
JEFF: I’d like to—
KATHY: —filled out an application
JEFF: —I’d like to—
KATHY: I’m not going to do it.
JEFF: So you’re you’re—preferential treatment then.
KATHY: Yeah.
JEFF: Thank you.
KATHY: If you want to call it that.
JEFF: Okay, thanks.
KATHY: Okay.
JEFF: And your name’s, your name’s Kathy, right?
KATHY: Yes.
JEFF: Okay. Thank you.

Bechard testified on cross-examination that when he testified
at the trial here he was working at Walker’s; that in August
1999, after Brockman was terminated, he filled out an applica-
tion at a job fair at Walker; that he was not given a welding test
or an interview on the day he filled out the application; that
subsequently Sletten telephoned him and asked him to com-
plete the selection process; that he filed a charge against
Walker with the National Labor Relations Board (Board) and
then stopped in and asked if his application was still good; that
he was hired by Walker and he had been working for 2 weeks
when he testified at the trial here; that the job fair was held on
August 19, and Sletten telephoned him during the week of Au-
gust 22, and left a message on his answer machine, inviting him
to come in for an interview and welding test; that he canceled
the appointment to take a welding test on September 3, indicat-
ing that he did not live in the area and he did not want to make
a special trip down to Walker; and that he was interviewed and
took a welding test after he stopped at Walker and asked if his
application was still active.
Sletten testified that two people took welding tests on the
day of the job fair; that one, Rutkowski, had already inter-
viewed and was scheduled to come in that day for a welding
test, and he was not there as part of the job fair; that another
man, Phil Hawley, had a welding test but she was not involved
in him getting a welding test and she did not know at the time
that he had gotten the test; that welding tests were not part of
the plan for that day; that no one was interviewed on the day of
the job fair; that some of the people who came to the job fair
were called back later and invited for interviews and a couple
were called back for welding tests; that the job fair was on
Thursday August 19 and she telephoned Bechard and Blair the
following Monday; that she believed that she left messages
inviting them to come back for an interview and weld test; that
while Blair left a message that he would call and set up a time,
he never came in for an interview and welding test; that Be-
chard asked her what type of job was available, agreed to come
in for an interview, and then canceled the interview because it
was too far out of his area; that she had subsequent voice mail
exchanges with Bechard and eventually he came in for an in-
terview and welding test; and that Bechard pushed back his
start date with Walker and he started on February 14, 2000.
Analysis
As set forth by the Board in Fluor Daniel, Inc., 304 NLRB
970 (1991):

In Wright Line, 251 NLRB 1083, enfd. 662 F.2d 899
(1st Cir. 1981), cert denied 455 U.S. 989 (1982), [ap-
proved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983)] the Board set forth its causation test
for cases alleging violations of the Act turning on em-
ployer motivation. First, the General Counsel must make a
prima facie showing sufficient to support the inference
that protected conduct was a “motivation factor” in the
employer’s decision. Once accomplished, the burden then
shifts to the employer to demonstrate that the same action
would have taken place notwithstanding the protected
conduct. It is also well settled, however, that when a Re-
spondent’s stated motives for its actions are found to be
false, the circumstances may warrant an inference that the
true motive is an unlawful one that the respondent desires
to conceal. The motive may be inferred from the total cir-
cumstances proved. Under certain circumstances the
Board will infer animus in the absence of direct evidence.
That finding may be inferred from the record as a whole.
[Footnotes omitted.]

In order to establish a prima facie violation of Section 8(a)(1)
and (3) of the Act, the General Counsel must establish union
activity, employer knowledge, antiunion animus, and adverse
action taken against someone involved or suspected of in-
volvement which has the effect of encouraging or discouraging
union activity. Inferences of animus and discriminatory moti-
vation may be warranted under all the circumstances of a case,
even without direct evidence. Evidence of false reasons given
in defense may support such inferences.
The General Counsel has established that Brockman engaged
in union activity and the Respondent knew about it before he
was discharged. Brockman was the employee who originally
contacted the Union. While it was not demonstrated that the
Respondent was aware of this fact, Brockman was an observer
for the Union at the Board election, he solicited signatures on
union authorization cards, and he distributed handbills.
Brockman also was the one who brought the antiunion postings
to the attention of management. Brockman headed the employ-
ees listed on one of the postings. Brockman wore union T-
shirts before and after the October 1998 Board election. Indeed
after the union organizer wrote employees twice about a meet-
ing to discuss renewed interest in bringing a Union into the
Respondent’s facilities and held a meeting with the employees
on July 21, Beck approached Brockman in late July 1999, and
asked him if he wanted to trade the union T-shirt in for two of
the “On our own” T-shirts. While this was done in “kind of a
joking manner,” Beck was asking Brockman if he was willing
to give up a symbol of support for the Union and wear a symbol
of support against the Union.23 In effect Beck was asking

23 On brief counsel for the Respondent argues as follows:
Brockman testified after Brad Beck. Beck was not recalled to respond
to his testimony because the General Counsel introduced General . . .
[Counsel’s Exhibit 25], one of the Respondent’s position letter. Those
WALKER STAINLESS, INC. 1275
Brockman, at about the same time that the Respondent was
taking the position that there was a problem with the involved
tank and deciding what to do, if he was willing to abandon his
support for the Union. He was not.
Beck did not deny Brockman’s testimony that sometime af-
ter the July 21 union meeting Beck was in the area when
Brockman was handing out union authorization cards.24
Brockman was active again and the Respondent’s management
through Beck knew it.
With respect to antiunion animus, the General Counsel, on
brief, contends that Sletten expressed animus August 19, when
she told Bechard and Blair that she was not going to give them
a weld test because they were from the Union. The Respondent
on brief argues, as here pertinent, that the handbook statement
is not enough to prove animus; that nothing in the conversation
Beck had with Brockman about trading his union T-shirt for
two company “On our own” T-shirts is remotely connected to

position statements were admitted without restrictions. (R. 45–46)
Beck’s denial of this conversation is at . . . [GC Exh. 25, p. 4].
First, Beck was called by the General Counsel as an adverse witness.
The Respondent never called Beck as a witness to deny this conversa-
tion. Nothing precluded the Respondent from calling Beck as a wit-
ness. Second, the assertion that “Beck’s denial of this conversation is
at GC Ex. 25, p. 4” is false. Beck did not sign the position statement.
What is on p. 4 of the GC Exh. 25 is an assertion of the Respondent’s
attorney. This is the same attorney who now claims that he was mis-
taken in asserting in a position statement that Roloff circled the “NO”
on the GC Exh. 17, the material receiving record. Roloff testified that
he first spoke with the attorney some time after the position statement
was forwarded to the Board. So, this same attorney was apparently
willing to make the assertion about Roloff without even speaking to
him. And third, it is well established Board law that a lawyer’s position
letter can be received as an admission if it contains a statement or
statements conflicting with the party’s position. McKenzie Engineering,
Co., 326 NLRB 473, 485 fn. 6 (1998). While admissions in a position
statement can be received and weighed against the client, a party may
not affirmatively rely on its own assertions in position statements.
Position statements are heresay, except to the extent they contain ad-
missions which are by definition not heresay, Rule 801(d)(2) of the
Fed.R.Evid. Brockman’s uncontroverted testimony about this conver-
sation is credited.
24 The Respondent’s attorney on brief argues that the evidence is that
neither Beck nor Sletten “saw him [Brockman] passing out union litera-
ture. [GC Exh. 27, p. 4.]” (R. Br. 5.) First, Brockman did not alleged
that Sletten “saw him.” Second, the attorney’s position statement reads
as follows:
I did not make an effort to determine if, in fact, the two
named individuals actually saw Brockman do anything. I stopped
asking questions when Kathy Sletten and Brad Beck both told me
they were not told of any such activity. Mr. Beck made the deci-
sion to terminate Brockman. Ms. Sletten reviewed the decision.
[Emphasis added.]
Consequently the attorney’s position statement does not even support
his assertion on brief. The position statement refers to what Beck was
told, not what he saw. Third, as noted above, position statements are
heresay, except to the extent they contain admissions. If the Respon-
dent wanted Beck to deny Brockman’s testimony, Beck should have
been called as a witness by the Respondent. Hew as not. Brockman’s
testimony about Beck being in the area is uncontroverted. Undoubtedly
Beck was not called as a witness by the Respondent and asked a direct
question regarding this matter because he could not deny Brockman’s
testimony. Brockman’s testimony is credited.
antiunion animus; that the August 19 incident with Sletten and
the two organizers is inconsequential and de minimis, and, as to
animus, there is no indication of animus toward employees who
are interested in a union or evidence of animus towards the
union itself but rather is a statement that the two union organiz-
ers are likely there to be disruptive;25 and that there is insuffi-
cient evidence of animus in the record. Although the pertinent
portion of the Respondent’s employee handbook does not rise
to the level of an unfair labor practice, this, in conjunction with
(a) the practice initiated in July 1999, of giving new employees
“On our own” T-shirts,26 (b) the Respondent telling two union
organizers on August 19, that they could not take weld tests
because they were from the Union and not bona fide appli-
cant’s, and (c) failing to consider the two union organizers for
hire on August 19, rises to the level, in my opinion, of substan-
tial evidence of antiunion animus sufficient to warrant the in-
ference that the Respondent would unlawfully terminate an
employee because of his union support, activities, and his con-
tinuing attempt to organize the Respondent’s employees. The
General Counsel has established that the protected conduct was
a motivating factor in the Respondent’s decision to terminate
Brockman.
In my opinion the Respondent has not shown that it would
have terminated Brockman even if he did not engage in a con-
tinuing attempt to organize the Respondent’s employees. Gen-
eral Counsel on brief contends that Brockman was treated dis-
parately in that while Day knew that the material was not
ASME certified he did not notify Brockman of that fact; that
either Roloff was at fault for failing to call the nonconforming
steel to Brockman’s attention, or Day was at fault for noting on
the material receiving record that the steel was not ASME certi-
fied, but then letting Roloff hand it off to Brockman; that Beck
testified that Roloff could have been subject to discipline; that
Brockman’s error turned out to be a “paper work” error; and
that the Respondent would have gone through the same process
of verification if Brockman had contacted quality control on
July 15, so there was no extra cost to the Respondent. The
Respondent on brief argues that there is no evidence of dispa-
rate treatment in that Roloff did not do anything wrong since he
checked with the purchasing department about the material not
being what was ordered and was not told to send it back; that
25 There was nothing to justify such a conclusion. The obvious con-
cern was that if they were hired they would engage in an attempt to
organize the Respondent’s employees. That is what “salting” is all
about.
26 It is one thing to have an antiunion statement in an employee
handbook. It is quite something else to give each new employee an
antiunion T-Shirt. This is something different than an employer mak-
ing available antiunion T-shirts to its employees during a union orga-
nizing drive (as opposed to giving the employees the antiunion T-shirts
and noting who takes them). Here the Respondent is giving each indi-
vidual new employee an antiunion T-shirt whether or not he or she
wants it. This is an indication that the Company excepts new hires to
be antiunion. This conduct infringes on the right of new hires to decide
whether or not they will support union representation. New hires can
remain silent and accept the antiunion T-shirt whether or not they be-
lieve in union representation. Or new hires can reject the antiunion T-
shirt and this rejection would indicate to the Respondent that the new
hire more than likely would be for union representation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1276
Roloff was not involved in ordering this material, there is noth-
ing to suggest he knew how, when or where it was to be used,
or that Brockman was in a hurry for this material; and that the
General Counsel cannot use Roloff as an example of disparate
treatment.
The involved material was not ordered for stock. Although
there was no job number on the purchase order, the purchasing
department knew who requested that the material be ordered.
Brockman testified that he dealt with purchasing agent Ritch
Rosbaum with respect to ordering the involved material, and he
told Rosbaum that he needed ASME certified 1-by-5-inch flat
bar. Brockman needed a limited quantity. The shipment only
involved two pieces totaling less than 25 linear feet.
Brockman’s uncontroverted testimony that Walker did not have
any of the required 1” x 5” flat bar in stock and they were wait-
ing for this material, it was a rush, is credited.27 As Beck testi-
fied, the involved material should have been ordered for a spe-
cific job and not for stock.28 Was this a mistake on the part of
the purchasing department? Rosbaum did not testify to explain
why the purchasing order did not specify a job number. Indeed
no one from purchasing testified about this or a number of other
questions which were left open on the record.29
Beck, Kuehl, and Day all agree that Roloff as receiving
inspector was responsible for checking the shipment against the
purchase order. As noted above, Beck testified that the receiv-
ing inspector, Roloff, has the responsibility to accept or reject
materials which are not in conformance with the purchase or-
der, placing a red tag on material that is not ASME certified;
that ASME certified material had been requested for the in-
volved job and if the material coming in was not ASME certi-
fied, the individual who received that material should have
placed a red tag notice on the material; that this should have
been done before the material went to Brockman; that he did
not check and he did not know whether the individual who
received the steel and passed it on to Brockman put a red tag on
it before passing it on to Brockman; and that the individual who
received the steel which was supposed to be ASME certified
but was not, and just passed it on was not doing his job and

27 As Kuehl testified, while he was not aware whether or not Walker
had other material that could be used for the involved job, since there
were two different heat numbers for the involved item on the inspection
sheet (traveler), that would suggest that there was not enough material
on hand and as a consequence more material had to be ordered for that
particular job to be completed.
28 Also Roloff testified that he believed that the material was for
work that maintenance was doing.
29 Such questions include, but are not limited to, why was no job
number placed on the purchase order, did Roloff come to or did he
telephone the purchasing department when the involved material was
received, when Roloff spoke to someone in the purchasing department
did they look at the purchase order to determine that ASME was spe-
cifically requested, was there any other documentation in the purchas-
ing department which would indicate that Brockman had them order the
involved material, did someone in the purchasing department tell
Roloff that the material was for maintenance, on what basis did they
determine that the involved material was for maintenance, did anyone
in purchasing spend any time in locating an acceptable metallurgical
test report for the involved material, and, if they did, how was this
communicated to Kuehl or Day.
could have been subject to discipline. Roloff was not disci-
plined over this matter. Roloff attempted to get around this by
explaining that he does not look at the full purchase order since
this would require him to make an adjustment on his computer
to get the full screen. Rather he was satisfied to only look at
the part number and speculate, without checking with mainte-
nance, that it was ordered as non-ASME material for a mainte-
nance job. In response to a number of questions, Roloff was
initially willing to testify that he went to the purchasing de-
partment on July 15, about the involved shipment. Only when
the obvious question was asked, namely didn’t the purchasing
department look at the full purchase order when you brought
this to their attention, did Roloff change his testimony and as-
sert that he did not go to the purchasing department but rather
he called them. Roloff maintained that he did not write “SA36”
on the material receiving record. Roloff realized that there was
a problem with the shipment. He also did not fully deny that
the material should have been red tagged.
Rather, as noted above, he took the position that he did not
have some obligation to put a red tag on the material “because
it is on a hold cart it doesn’t need to have any sort of a red tag
on it. A red tag means a hold that no one is to use that material
because there is something wrong with it, some problems. The
hold cart is the same thing.” (Tr. 330–331; emphasis added.)
Walker’s own rules (4.15) require that material not in compli-
ance . . . . will be rejected and tagged with the ‘red’ hold tag”
Beck appreciated this. Kuehl tried to get around the rule by
asserting that the material was ordered for non-ASME use.
And his assertion that the receiving inspector is not supposed to
do anything with a red tag if the material is ordered SA36 but
does not come in with an indication that it is SA36 not only
flies in the face of the rule but is contrary to Roloff’s testimony.
Roloff appreciated that something had to be done. Roloff took
the position that placing the material on a hold cart in a hold
area was the equivalent of a red tag. Day appreciated the fact
that a red tag should be affixed after somebody determines that
the shipment is not code material but he unconvincingly testi-
fied that while there is a red tag system that could be used, it is
not normally used a lot for raw materials. In other words, Day
apparently takes the position that the rule is not normally fol-
lowed. That is a strange approach in a situation where Walker
is trying to justify terminating Brockman for not following a
rule.
Also strange is the fact that, on the one hand, Roloff testified
that on July 15 he spoke with Day in quality control about the
involved material and Day checked it and said that it did not
meet ASME. On the other hand, Day testifies that, after the
tank has been shipped, he found the involved Heat #H7387
document in a folder for material that he had not had a “chance
to review the MTRs yet.” Would not Day have reviewed the
Heat # H7387 document on July 15, when according to Roloff,
Day decided that the material did not meet ASME?30
While Roloff testified that he believed that Day circled the
“NO” on the material receiving record, Day testified, as noted
30 If the Heat #H&387 document in the folder for material that he
had not had a “chance to review the MTRs yet’ was not a copy of GC
Exh. 16, then what material did the document cover?
WALKER STAINLESS, INC. 1277
above, that he probably (with a high degree of certainty) circled
the “NO” on the “MATERIAL OK PER SECTION II:” line of
the involved material receiving record, General Counsel’s Ex-
hibit 17; that he could not positively testify that he circled this
“NO”; that Roloff could have circled this “NO” but he doubted
it; that he did not sign the involved material receipt form be-
cause the material did not meet anything so he just circled
“NO” that it was not good; and that he was not 100-percent
sure he circled the “NO.” Day neither specifically corroborated
Roloff regarding meeting with him on July 15, about the in-
volved material nor did he deny this meeting.
As noted above, one of the Respondent’s position statements
indicates that Roloff circled the “NO.” Also, as noted above,
Roloff denies circling the “NO.”
Strangely Beck eventually testifies that he knew that the in-
volved material was ASME at the time he told Brockman that
he was terminated on August 4. Yet the handwritten date by
Kuehl on the involved “CERTIFIED MILL TEST REPORT” is
August 6. Kuehl testified that the test report might have been
faxed or mailed, and it might have been received the day before
he signed it on August 6. There is no fax number on the copy
introduced into evidence. If Beck was relying on a verbal as-
surance given before Walker allegedly received the acceptable
mill test report, he did not indicate this to be the case. Kuehl
testified that he and Day compared the data on the mill test
report to the carbon steel specifications and he signed it.
Again, his signature is dated August 6. Day did not specifically
corroborate Kuehl about the August 6 comparison and he did
not sign the mill test report.
While Beck and Kuehl testified about four people spending
time trying to locate an acceptable mill test report, and Beck
testified that he was relying on the statement of Kuehl, Kuehl
and Day testified that they did not speak with anyone in the
purchasing department regarding the investigation of this mat-
ter. If that was the case, on what basis did Kuehl testify that he,
Day, and two people in purchasing were the four involved in
this endeavor? When Day twice testified that he did not speak
to anyone in purchasing with respect to the investigation of this
matter and with respect to whether there was any additional
documentation for the shipment, he did not corroborate Kuehl
who testified that Day went through purchasing to get an ac-
ceptable mill test report. At one point Kuehl testified that
“Steve Day went through purchasing [contacting the manufac-
turer of the steel bar]. They worked to get acceptable test re-
ports.” (Tr. 219.) As noted above, at another point when
Kuehl was asked if he contacted anyone in the purchasing de-
partment as part of his investigation, he answered, “I didn’t. I
think—I’m not sure. I think Steve Day did, but I didn’t really
get involved as getting [sic] us a test report.” No one from
purchasing testified about what role, if any, they may have
played in getting an acceptable test report.
The involved purchase order specified SA36 which is ASME
certified material. The delivery receipt from Ryerson, General
Counsel’s Exhibit 14, indicates as here pertinent “T/R WITH
SHIPMENT.” The involved “JOSEPH T. RYERSON & SON,
INC.” Material Certification, General Counsel’s Exhibit 15, as
here pertinent, indicates as follows:
. . . .
Item Instructions
SEND CERTS WITH SHIPMENT
TEST REPORTS W MATL ON ALL ITE
MS
CERTIFIED
Part Number
FBRCS10000500
. . . .
This document certifies that the material described above was
shipped on your order and that the attached data is a true copy
of the test report furnished by the producer with said material.

The only other document which the Respondent’s witnesses
refer to, and which was introduced into evidence regarding the
shipping documents received with the shipment, is a one page
document titled “CERTIFICATION,” General Counsel’s Ex-
hibit 16.31 As designated by the SA36 on the purchase order,
ASME material was ordered. The material certification sent
with the shipment, General Counsel’s Exhibit 15, refers to the
purchase order and then refers to “CERTS” and a test report.
Since only two certs were referred to by the Respondent, appar-
ently the Respondent is taking the position that one of the
“CERTS” is the test report referred to in the material decertifi-
cation, General Counsel’s Exhibit 15. If that is the case, why
wasn’t this indicated on the material receiving record, General
Counsel’s Exhibit 17, on the line designated “MTRs
RECEIVED:”?
The Respondent’s witnesses tried to leave the impression
that the involved shipment was not the material required to
reinforce the bottom head on the involved tank. For the reasons
specified above, it has been found that Walker did not have the
material in stock and it had to be ordered. If the involved
shipment was not the material for the tank, Walker did not pro-
duce another purchase order covering the involved 1” x 5” flat
bar. And if the other order was canceled because it was no
longer necessary, Walker did not produce the documentation
showing the cancellation. Again no one from the purchasing
department testified so these questions remain unanswered.
The involved shipment was the material that was meant to be
used for the involved tank. Assuming arguendo that an accept-
able test report did not accompany the shipment on July 14,
Walker would still have had to spend whatever time it alleges it
did locating an acceptable MTR.
If the Respondent’s witnesses are to be believed, Roloff, al-
though it is his job, does not check the full purchase order so
that he can claim that he did not determine that while the pur-
chase order specified ASME, that is not what he received.
Since Roloff changed his testimony to make sure he was not
present when someone in purchasing had to resolve the prob-

31 This document does refer to Heat H&387 and it specifies numbers
under what appears to be symbols, as here pertinent, for the elements
carbon, manganese, phosphorus, sulphur, and silicon. Just before the
signature line on the document the following is indicated: “WE
CERTIFY THE CHEMICAL RESULTS AND/OR ATTACHED
PHYSICAL TESTS WERE DETERMINED BY STANDARD
METHODS AND ARE CORRECT AS CONTAINED IN THE
RECORDS OF THE CORPORATION.” But the “CERTIFICAION”
does not appear to give the tensile strength or yield point which are
required for ASME material.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1278
lem by looking at the purchase order and any other notations
indicating who asked for the material and why, and no one in
purchasing testified, we do not know why they were satisfied to
speculate, as alleged, that the shipment was meant for mainte-
nance. And since Day had to be shown the purchase order by
the General Counsel on the witness stand before he changed his
testimony that he had no way of really knowing for sure if the
involved purchase order was for ASME material, it would ap-
pear the he never saw the purchase order before. As he eventu-
ally conceded, the purchase order did request ASME material
because it specifies SA36.
With the evidence at hand and with the lack of evidence one
would expect, one must wonder whether an acceptable MTR
did originally accompany the involved shipment.32 But for the
sake of argument lets assume that an acceptable MTR did not
accompany the shipment on July 14.
The material is ordered for a specific job but the purchasing
agent does not place the job number on the purchase order.
Why not? The shipment comes in and Roloff apparently does
not check the full purchase order as he is supposed to. Why
not? If he had checked the full purchase order, he would have
seen that the shipment was not in compliance. At that point he
should have placed a red tag on the shipment. The rule, 4.15,
speaks to a red tag and not a hold cart which could be used for
any flat bar whether ASME or not. Allegedly the purchasing
department is satisfied to speculate instead of checking the
purchase order and finding out why the material was ordered.
Brockman testified that he personally spoke with purchasing
agent Ritch Rosbaum and told him that he needed that ASME
certified 1” x 5” flat bar. The purchase order specifies
“RITCH” under “Buyer” so how difficult could it have been to
determine what the material was ordered for? Neither Ros-
baum nor anyone else from purchasing testified at the trial here.
Day never specifically corroborates Roloff that he met with him
on July 15, about the involved shipment. And Day never un-
equivocally testified that he, and not Roloff, circled the “No”
on the involved material receiving record. Roloff unequivo-
cally testified that, contrary to the Respondent’s attorney’s
position statement, he did not circle the “No.” If Roloff did not
and if Day did not, then who did? Day does not unequivocally
concede that he determined on July 15 that the material did not
meet ASME requirements. And Day did not testify that he was
aware on July 15 that the purchase order called for material
which met ASME requirements. But he did testify that the
material for the involved part number has to be SA36 (or
ASME certified).
As noted above, Brockman testified that he assumed that the
involved material was ASME certified because (1) there was no
red tag on it or anything else on it to indicate to him that it was
not ASME material, (2) non-ASME material is not usually kept
in his area (3) the involved material was brought directly to
him, (4) the involved material was not placed in stock and he

32 Kuehl testified that Day gave him the involved acceptable mill test
report. Day did not testify as to how or when he got the acceptable mill
test report. And, as noted above, Day testified that he did not speak
with anyone in the purchasing department regarding the investigation
of this matter and whether there was any additional documentation for
the shipment.
did not pull it out of stock, and (5) he personally had tele-
phoned purchasing agent Ritch Rosbaum and told him that he
needed the ASME certified 1-by-5-inch flat bar. Brockman’s
testimony is credited. I found Brockman to be a credible wit-
ness. While what Brockman did is understandable under the
circumstances extant at the time, it is not acceptable because he
did not follow Walker’s rule regarding checking with quality
control when the heat number is not in the log. But Brockman
is not alone. If one accepts the Respondent’s scenario,
Roloff’s, purchasing’s, and perhaps Day’s approach leave
something to be desired as far as Walker’s rules and common
sense are concerned. As Beck testified, the receiving inspector
should have placed a red tag on the involved material since it
was not in conformance with the purchase order, that this
should have been done before the material went to Brockman
and if the receiving inspector did not place a red tag on the
material and just passed it on to Brockman, the Receiving In-
spector could have been subject to discipline. Roloff was not
disciplined regarding this matter. No one in the purchasing
department is disciplined. Day is not disciplined. So accepting
the Ccompany’s scenario for the sake of argument, the only one
involved in this matter who is disciplined is Brockman. Once
the General Counsel makes a prima facie showing, the burden
of going forward is on the Respondent. The Respondent must
show that it had a business justification for the discharge, that it
would have discharged the involved employee even if he was
not engaged in union activity. The Respondent has not made
this showing. The Respondent chose for whatever reason not to
call Rosbaum or someone else from the purchasing department
to answer a number of obvious questions. The Respondent
chose to treat Brockman disparately. In my opinion, Brockman
was discharged because there was a renewed attempt to organ-
ize Walker’s employees, Beck saw Brockman passing out un-
ion authorization cards, and Beck ascertained that Brockman
was not willing to switch his allegiance and wear antiunion T-
shirts. The Respondent violated the Act in discharging
Brockman.
In my opinion, Walker also violated the Act in telling Be-
chard and Blair on August 19 that they could not take weld
tests because they were from the Union and not bona fide ap-
plicants, and in failing to consider Bechard and Blair for hire on
August 19. As indicated above, in its answer to the complaint
the Respondent admitted that Bechard and Blair were not al-
lowed to take a welding test on August 19, and Sletten ques-
tioned whether they were bona fide applicants; and that only on
August 19 Sletten did not consider Bechard and Blair to be
serious applicants.
Since NLRB v. Town & Country Electric, 516 U.S.85 (1995),
no lawful purpose is served by an employer telling a union
organizer that he can not be a bona fide applicant for employ-
ment with the employer because he works for a union. Sletten
was not a credible witness. She was not truthful with respect to
what was said between herself and Bechard on August 19.
Sletten did not tell Bechard on August 19, that he would not be
given a weld test because weld tests were not being given that
day. Rather, Sletten told Bechard he would not be given a weld
test because he was there from the Union and he was not there
for a job. I do not credit Sletten’s testimony that no one was
WALKER STAINLESS, INC. 1279
interviewed on the day of the fair. Sletten’s testimony is belied
by Walker’s own ad in that it indicates, in part, as follows:

Stop by and see us on Thursday, August 19. You can fill out
an application, speak with a Walker Representative, and find
out why Walker is one of South Central Wisconsin’s leading
employers.
We will be accepting applications and doing interviews
during the following times:
9:00 to 11:00 a.m.
and 5:00 to 7:00 p.m.
[Emphasis added.]

As pointed out by the Board in FES, 331 NLRB 9, 15
(2000):

To establish a discriminatory refusal to consider, pur-
suant to Wright Line, supra, the General Counsel bears the
burden of showing the following at the hearing on the
merits: (1) that the respondent excluded applicants from a
hiring process; and (2) that antiunion animus contributed
to the decision not to consider the applicants for employ-
ment. Once this is established, the burden will shift to the
respondent to show that it would not have considered the
applicants even in the absence of their union activity or af-
filiation.

If the respondent fails to meet its burden, then a viola-
tion of Section 8(a)(3) is established.

Here, Sletten excluded Bechard and Blair from the hiring proc-
ess on August 19. She let them fill out applications but she
would not allow them to take a weld test and they were not
interviewed. One need only read the transcript of the August
19 conversation set out above to see that antiunion animus con-
tributed to the decision not to consider the applicants for em-
ployment. Contrary to the Respondent’s argument on brief,
what Sletten said was not “a statement that two otherwise full-
time paid organizers are likely there to be disruptive.” (R. Br.
29.) Rather Sletten said what she said because she realized that
Bechard and Blair are union organizers and if given the oppor-
tunity, they will organize employees. On August 19 Walker,
through Sletten did not intend to give them the opportunity.
Undoubtedly, subsequently someone explained to Walker that
it really had no choice. It had to treat them as bona fide appli-
cants. But what we are focusing on is their treatment on Au-
gust 19. On August 19, the Respondent violated the Act by
telling Bechard and Blair that they could not take weld tests
because they were from the Union and not bona fide job appli-
cants, and by failing to consider them for hire on that date.
CONCLUSIONS OF LAW
1. Walker Stainless, Inc. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
telling applicants Jeff Bechard and Todd Blair that they could
not take weld tests because they were from the Union and not
bona fide applicants.
4. The Respondent violated Section 8(a)(3) and (1) of the
Act by discharging its employee Dennis Brockman on August
4, 1999, and by failing to consider Jeff Bechard and Todd Blair
for hire on August 19, 1999.
5. The Respondent’s unfair labor practices described above
affect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices within the meaning of Section 8(a)(1) of the
Act, I shall recommend that the Respondent be ordered to cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the purposes of the Act.
Having found that the Respondent unlawfully discharged
Dennis Brockman, it will be recommended that the Respondent
be ordered to reinstate him to his former position and make him
whole for any loss of earnings and benefits he may have suf-
fered as a result of the Respondent’s unlawful conduct, in the
manner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).

As indicated in FES, supra at 15:

The appropriate remedy for such a violation [refusal to con-
sider] is a cease-and-desist order; an order to place the dis-
criminatees in the position they would have been in, absent
discrimination, for consideration for future openings and to
consider them for the openings in accord with nondiscrimina-
tory criteria; and an order to notify the discriminatees, the
charging party, and the Regional Director of future openings
in positions for which the discriminatees applied or substan-
tially equivalent positions.15

[Recommended Order omitted from publication.]
______________________
15 Respondents will be required to provide such notification until the
Regional Director concludes that the case should be closed on compli-
ance.