West Virgina Steel Corp.

National Labor Relations Board - Board Decisions

Dec 20, 2001

337 N.L.R.B. 34 (N.L.R.B. 2001)

34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
West Virginia Steel Corporation, a wholly-owned
subsidiary of Raleigh Mine & Industrial Supply,
Inc. and United Steel Workers of America,
AFL–CIO–CLC. Case 9–CA–36690
December 20, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
On November 3, 1999,1 Administrative Law Judge
Benjamin Schlesinger issued the attached decision. The
General Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief.
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,2 and conclusions
only to the extent consistent with this Decision, and to
adopt the recommended Order as modified.3
The judge found that the Respondent violated Section
8(a)(1) of the Act by engaging in surveillance of Bobby
Bonnett Jr., by informing employees that they would not
receive a pay raise because of their concerted and pro­
tected activities, by implying that employees should re-
sign if they continued to engage in union activities, and
by interrogating employee Frank A. Honaker. The judge
also found that the Respondent violated Section 8(a) (3)
and (1) by permanently laying off Bonnett because he
supported the Union. There were no exceptions to these
findings.
The judge dismissed similar allegations that the Re­
spondent acted unlawfully by permanently laying off
employees Honaker and Dallas L. Spurlock. The Ge n­
eral Counsel has excepted to the judge’s dismissal of
these allegations. With respect to Honaker, the judge
found that even assuming that the Respondent had
knowledge of Honaker’s union activities, the General
Counsel had failed to prove that the Respondent selected
Honaker for layoff at least in part because of those activi­
ties. The judge found further that Honaker would have
been laid off even in the absence of his protected con-
1 All dates are in 1999, unless otherwise indicated.
2 The General Counsel has excepted to some of the judge’s credibil­
ity findings. The Board’s established policy is not to overrule an ad­
ministrative law judge’s credibility resolutions unless the clear prepon­
derance of all of the relevant evidence convinces us that they are incor­
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In the absence of exceptions, we find it unnecessary to pass on the
judge’s statements contained in fn. 14 of his decision concerning the status
of employee Frank Honaker.
3 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric, 335 NLRB 142 (2001).
duct. With respect to Spurlock, the judge found that the
General Counsel did not show that the Respondent knew
about Spurlock’s union activities at the time he was laid
off, and therefore the judge concluded that the Respon­
dent did not violate the Act. We agree with the judge’s
conclusion as to Honaker. 4 As explained below, we find
that a remand to the judge for further findings regarding
Spurlock is necessary for resolution of this issue.
In his decision, the judge found that Spurlock’s inclu­
sion in the complaint is based solely on his attendance at
the March 14 union meeting, “for he does not appear to
have engaged in any other union activities.” The judge
further found that “there is an utter void in demonstrating
that Respondent had even an inkling that Spurlock was a
Union supporter.” Having thus found that the Respon­
dent had no knowledge of his union activity, the judge
dismissed the complaint allegation regarding Spurlock.
The General Counsel argues that the evidence estab­
lishes a prima facie case of discrimination against
Spurlock and that the Respondent failed to show that it
would have permanently laid off Spurlock in the absence
of his union activity.5 In arguing that the Respondent
had knowledge of Spurlock’s union activity, the General
Counsel relies on Spurlock’s testimony. First, Spurlock
testified that he had a conversation with Foreman David
Farmer6 on March 12 in which Spurlock
asked him if he knew about the [March 14] Union
meeting, and he said, no. I said, well, you know, I
thought maybe you’d want to know. We’d discussed
it, Frank Honaker and myself, and we thought it would
be best that we would say something to him, give him a
chance if he wanted to be part of it. David Farmer said
that he didn’t know anything about it. In the conversa­
tion he told me that [employee] Bill Smith had done
told him about it, and that he had done told [day shift
plant foreman] Larry Adkins about it. (Tr. 129.)
Second, Spurlock testified that he had a conversation
with Foreman David Farmer on March 15. Spurlock
testified:
[a]bout 1:45 we’s walking up through the plant to­
gether, gathering up stuff for the Warehouse trailer,
which is shipped to the Charleston Plant. I asked him
4 Member Walsh adopts the judge’s dismissal of the allegation that
the Respondent violated Sec. 8(a) (3) and (1) by laying off Honaker
based solely on the absence of evidence establishing that the Respon­
dent was aware of Honaker’s union activities.
5 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
6 The Respondent does not dispute that Foreman Farmer is a 2(11)
supervisor. The judge, however, found that Farmer was a low-level
supervisor who had no involvement in the layoff decision, and credited
Farmer’s testimony that he did not inform other supervisors or manag­
ers of Honaker’s union activities.
337 NLRB No. 3
WEST VIRGINIA STEEL CORP. 35
how he felt about the Union and he said, anything to
better yourself. (Tr. 131.)
Contrary to Spurlock’s testimony that he spoke to
Farmer on March 12, Farmer testified that before the
March 14 union meeting took place, Honaker was the
“first” and “only” person to mention anything in his
presence about the meeting. (Tr. 502.) Farmer also testi­
fied that he could not recall any conversation with
Spurlock on March 15. (Tr. 499.)
The judge did not specifically address the apparent
conflict in the testimony of Spurlock and Farmer con­
cerning a March 12 conversation in which the union
meeting may have been discussed. The judge failed to
make a credibility resolution as to whether the conversa­
tion took place. Additionally, assuming arguendo that
the conversation did occur, the judge made no finding, as
he did with respect to Honaker,7 that Farmer told no one
in upper management that Spurlock invited him to a un­
ion meeting. Finally, the judge made no finding
concerning a March 15 conversation between Spurlock
and Farmer, which (especially if Spurlock is credited
with respect to an earlier, March 12 conversation) may
also tend to show the Respondent’s knowledge of
Spurlock’s support for the Union.
We remand this proceeding to the judge to resolve
these issues involving the Respondent’s knowledge of
Spurlock’s union activities.8 In remanding, we direct the
judge to analyze the evidence he previously overlooked
and make findings thereon, matters uniquely within the
province of the judge. If on remand the judge finds suffi­
cient evidence of the Respondent’s knowledge of
Spurlock’s union activities, then he should continue with
an appropriate analysis of this case under the Board’s
Wright Line test and determine if the General Counsel
and the Respondent have met their respective burdens.9
7 The judge credited Farmer’s testimony to the extent that he never
told anyone in management that Honaker invited him to a union meet­
ing.
8 The Board may infer knowledge of an employee’s protected activ­
ity from circumstantial evidence. That circumstantial evidence may
include, inter alia (a) the timing of the adverse employment action, (b)
the employer’s general knowledge of union activities, (c) the em­
ployer’s antiunion animus, and (d) disparate treatment. See, e.g.,
Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), enfd. 97 F.3d
1448 (4th Cir. 1996) (mem.).
9 As the Board explained in Regal Recycling, Inc., 329 NLRB 355,
356 (1999) (fn. omitted):
Under the test set out in Wright Line, in order to establish that the
Respondent unlawfully discharged the . . . employees based on
their union activity, the General Counsel must show by a prepon­
derance of the evidence that the protected activity was a motivating
factor in the Respondent's decision to discharge. Thus, the General
Counsel must show that the employees engaged in union activity,
that the Respondent had knowledge of that activity, and that the
Respondent demonstrated antiunion animus. Once the General
Therefore, we shall remand this issue for the judge to
make the appropriate analysis.
None of the other issues in this case are implicated by
remanding the Spurlock allegation for further considera­
tion and there is no reason to delay the resolution of
those issues pending the outcome of the limited remand.
Accordingly, we have decided it is appropriate to issue a
final Order with respect to the 8(a) (1) independent viola­
tions, the 8(a) (3) and (1) Bonnett layoff violation, and
the dismissed Honaker allegations.
ORDER
The National Labor Relations Board adopts the rec­
ommended order of the administrative law judge, as
modified below, and orders that the Respondent, West
Virginia Steel Corporation, a wholly owned subsidiary of
Raleigh Mine and Industrial Supply, Inc., Charleston,
West Virginia, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as modi­
fied.
1. Substitute the following language for paragraph
2(b).
“(b) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable, place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
2. Subsitute the following paragraphs for the last para-
graph of the Order.
IT IS FURTHER ORDERED that the complaint allegations
regarding Frank Honaker are dismissed.
IT IS FURTHER ORDERED that the issue of whether the
Respondent violated Section 8(a) (3) and (1) of the Act
by permanently laying off Dallas Spurlock is severed
from the rest of the proceeding and remanded to the ad­
ministrative law judge for appropriate action as noted
above.
IT IS FURTHER ORDERED that the administrative law
judge shall prepare a supplemental decision setting forth
the credibility resolutions, findings of fact, conclusions
of law, and a recommended Order, as appropriate on
remand. Copies of the supplemental decision shall be
served on the parties, after which the provisions of Sec­
tion 102.46 of the Board’s Rules and Regulations shall
be applicable.
Counsel has made the required showing, the burden shifts to the
Respondent to demonstrate that it would have taken the same ac­
tion even in the absence of the protected union activity.
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. Substitute the attached notice for that of the admin­
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we 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
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT engage in surveillance of our employees
and monitor their activities.
WE WILL NOT inform our employees that a pay raise
that had been approved would not be granted because of
their concerted and protected activities.
WE WILL NOT interrogate our employees about their un­
ion support or union activities.
WE WILL NOT imply that our employees should resign
if they continued to engage in union activities.
WE WILL NOT permanently lay off or otherwise dis­
criminate against our employees for supporting the
United Steel Workers of America, AFL–CIO–CLC, or
any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the National
Labor Relations Act.
WE WILL within 14 days from the date of the Board’s
Order, offer Bobby Bonnett Jr. full reinstatement to his
former job, or if that job no longer exists, to a substan­
tially equivalent position, without prejudice to his senior­
ity or any other rights or privileges previously enjoyed.
WE WILL make Bobby Bonnett Jr. whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, with interest.
WE WILL within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw­
ful discharge of Bobby Bonnett Jr., and WE WILL within 3
days thereafter notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
WEST VIRGINIA STEEL CORPORATION A
WHOLLY-OWNED SUBSIDIARY OF RALEIGH MINE
& INDUSTRIAL SUPPLY, INC.
James E. Homer, Esq., for the General Counsel.

Forrest D. Roles, Esq. (Heenan, Althen & Roles), of Charles-

ton, West Virginia, for Respondent.
Waymon D. Free, Organizer, of Walton, West Virginia, for the
Charging Party.
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge. On
Monday, March 15, 1999,1 Respondent West Virginia Steel
Corporation, a wholly-owned subsidiary of Raleigh Mine &
Industrial Supply, Inc. (Respondent), permanently laid off three
of its employees, Bobby Bonnett Jr., Frank A. Honaker, and
Dallas L. Spurlock, 1 day after they had attended an initial
meeting of employees with the Charging Party, United Steel
Workers of America, AFL–CIO–CLC. The complaint2 alleges
that Respondent violated Section 8(a)(3) and (1) of the National
Labor Relations Act (the Act), 1947, as amended, 29 U.S.C.
Sec. 151 et seq., first, by selecting these three employees for
layoff, and, second, by laying them off permanently and not
recalling them.3 Respondent denies that it violated the Act in
any manner.
Jurisdiction is conceded. Respondent, a corporation, has
been engaged in the fabrication of steel products at its Charles-
ton, West Virginia facility, where it fabricates plate for coal
sumps, water tanks, and tube tresses and its Poca, West Vir­
ginia, facility (River plant), where it fabricates structural steel
used to construct buildings. During the 12 months that preceded
the issuance of the complaint, Respondent purchased and re­
ceived at its two facilities goods valued in excess of $50,000
directly from points outside West Virginia. I conclude that
Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. I also conclude
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
Bonnett instigated the Poca plant employees’ organizing
drive, contacting a representative of the Union in February by
telephone, and meeting with him on February 24 or 25, when
1 All dates refer to 1999 unless otherwise stated.
2 The relevant docket entries are as follows: The Union filed its un­
fair labor practice charge on April 1 and amended it on May 5. The
complaint issued on May 20. The hearing was held in Charleston, West
Virginia, on July 22, 23, and 29.
3 Despite much evidence at the hearing and substantial argument in
his brief about the bona fides of Respondent’s need for any layoff, the
General Counsel contends in his brief:
The Administrative Law Judge is urged to note that Counsel for
the General Counsel is not alleging as a violation of Section
8(a)(3) the Respondent’s decision to have a general layoff. It
very well may be that the new owners felt there was a valid basis
for a layoff. But, in the instant case, Counsel for the General
Counsel is contending that the Respondent’s selection of the dis­
criminatees for the permanent layoff to be violative of Section
8(a)(3).
WEST VIRGINIA STEEL CORP. 37
they decided to call a meeting of the employees at a Hardee’s
restaurant on the third Sunday from then, March 14. In prepara­
tion for that meeting, Bonnett distributed a union pamphlet at
the facility and elsewhere that the union representative had
given him, captioned “YOU Need a Union NOW, More Than
Ever”; and Bonnett spoke about the upcoming meeting not only
with his fellow employees, but also with one supervisor. After
Bonnett began distributing the pamphlet, Larry Adkins, Re­
spondent’s day shift plant foreman, began to watch Bonnett
more closely, following him around the plant, to the mainte­
nance room, and even to the restroom. On March 14, Bonnett
and eight other employees, including Honaker and Spurlock,
met with the union representative and explained their com­
plaints about their workplace. The union representative told
them what was needed to get the Union and how to get an elec­
tion. The employees agreed to meet again the following Sunday
or two Sundays from then, March 28.
Whether that second meeting was held was not revealed.
What was important was that, the day after the first meeting,
near the end of the shift, Bonnett, Honaker, and Spurlock were
called into the office of Troy Stover, the Poca plant superinten­
dent, who advised them that they had been permanently laid off
because Respondent had to reduce its work force. Stover, who
selected the employees for layoff, specifically told Honaker and
Spurlock that he had no problem with their work. There was yet
a fourth employee who was laid off, Allen Foster Jr., who had
been hired a month before, on February 15. Because he did not
attend the meeting, and thus, did not engage in any union or
protected activities, at least as appears in this record, the com­
plaint does not allege that Respondent violated the Act by lay­
ing him off.
The inclusion of Spurlock in the complaint is based solely on
his attendance at the meeting, for he does not appear to have
engaged in any other union activities. The only unusual fact
about Spurlock is that his wife filed a complaint with the Occu­
pational Safety and Health Administration (OSHA) about the
Poca facility, which resulted in the finding of various viola­
tions, about which more later. For the present, the General
Counsel’s case was premised, in part, on Respondent’s alleged
notion that Bonnett, not Spurlock, was the cause of the OSHA
inspection and that was one of the reasons that Respondent
believed Bonnett must have been an activist, and thus, a union
supporter. Other than the OSHA complaint, there is an utter
void in demonstrating that Respondent had even an inkling that
Spurlock was a union supporter. I conclude that, without such
knowledge, the complaint regarding Spurlock has not been
proved, and I will dismiss it. FPC Moldings, Inc. v. NLRB, 64
F.3d 935, 942 (4th Cir. 1995), enfg. 314 NLRB 1169 (1994).
Honaker and Bonnett present far different cases. Although
all of Respondent’s higher-ranking management and supervi­
sors testified that they had no knowledge that the employees
were engaged in any union activity until 1 or 2 weeks after the
March 15 layoff, that testimony could not be truthful. One of
Respondent’s supervisors, paint rack foreman, David Farmer,
and other employees testified that it was well known in the plant
that the employees were talking about the fact that there was
going to be a union meeting. Indeed, Honaker invited Farmer to
attend that meeting and Bonnett invited cutting department fore-
man Matthew Neely III. (Both were low-level supervisors, and it
was rumored that Farmer, for one, was paid hourly. Thus, the
employees thought that they were actually employees, not super-
visors.) It seems likely, therefore, that others in Respondent’s
chain of command either learned of the employees’ union senti­
ments from a supervisor or from being in the plant.4
That would apply particularly to Adkins, who, while denying
that he followed Bonnett around the plant when Bonnett began
his organizing activities, defended himself by noting ,his regu­
lar practice of walking throughout the shop so that he would be
available for anybody that needed help. I find it probable that
Adkins learned of the employees’ union activities during those
walks. I also find it likely that he saw or overheard Bonnett as
he distributed the union pamphlet or talked with other employ­
ees and thus started to watch Bonnett carefully. In so finding, I
reject Respondent’s contention that Bonnett, in making this
claim, suffered from paranoia. He seemed to me a bright per-
son, unlikely to concoct testimony about Adkins’ actions after
Bonnett began to distribute the pamphlet. In that respect, I con­
clude that Respondent violated Section 8(a)(1) of the Act by
watching Bonnett and monitoring his actions in order to dis­
suade him from engaging in union activities. Capitol EMI Mu-
sic, 311 NLRB 997, 1006 (1993), enfd. mem. 23 F.3d 399 (4th
Cir. 1994).
In sum, I find that Respondent had ample knowledge that the
employees were engaging in union activities, and, from Ad­
kins’ monitoring of Bonnett’s activities, that Bonnett was a
leader of the movement. That is not to say that Respondent
knew what Honaker was doing, because I believe Farmer’s
testimony that he did not tell anyone that Honaker invited him
to the meeting. That being so, there is nothing else in the record
that proves that Respondent, other than a very low level super-
visor, who had nothing to do with the layoff,5 knew that
Honaker favored the Union or that he even attended the union
meeting. Furthermore, except for inviting Farmer to the meet­
ing, Honaker, like Spurlock, only attended the union meeting.
He did not otherwise engage in any union activities or advocate
bringing in the Union.
Respondent defended its selection of Honaker for layoff on
two grounds. One was that it wanted to rid itself of employees
who performed jobs that required little skills, in the hopes of
maintaining and hiring employees who were more skilled and
able to fill in at those positions for which little skills were re­
quired. Honaker was a sandblaster, a lower skilled job;6 and
4 According to Spurlock, Farmer, while first insisting that he did not
know about the meeting, said that Bill Smith, the quality control em­
ployee, had told Farmer about it and that “he had done told Larry Ad­
kins about it.” It is unclear from this testimony whether it was Smith or
Farmer who allegedly spoke with Adkins. I make no finding.
5 Farmer was totally surprised when he learned of Honaker’s and the
others’ layoffs.
6 The most skilled job was in maintenance, requiring the employee
to fix and maintain all the machinery, saws, and cranes. Next in skill
were the fabricators or layout fitters, who are experienced in reading
blueprints, tack welding, and cutting with torches, and quality control
employees. Next were some machine operators, such as the one who
operates a Cox set drill. The next are the cutting crew and the angle
master or angle machine operators. The welders and saw operators
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent’s witnesses testified that, while he had performed
higher skilled jobs from time to time, he had done so inade­
quately, so that he was removed from those jobs and assigned
to his present job which he had been doing for almost 8 years.
There is nothing in the record that disproves Respondent’s con­
tention. Rather, it is supported by the fact that Honaker’s posi­
tion was never filled by an employee who was to perform sand-
blasting exclusively. Rather, other employees with more skills
filled in on this lesser skilled position as needed, and then re-
turned to their more skilled jobs.
The second reason for selecting Honaker, Respondent con-
tends, was that he had a “horrible” work record. That probably
is exaggerated, but Honaker did have his problems with having
accidents, although none too severe that he was placed on dis­
ability or that Respondent had to fill in for him, and problems
of getting along well with others, resulting in his assignment to
the sandblasting job, which left him isolated from the other
employees. And Honaker did have a record of discipline, some
somewhat ancient,7 and attendance and tardiness problems that
resulted in warnings and a suspension for excessive tardiness
for 3 days as recent as a month before he was laid off, February
10, when he was warned that if his conduct continued, he
would be discharged. Thus, even had Respondent had knowl­
edge that Honaker attended the union meeting and supported
the Union and even had Respondent selected him for layoff for
that reason, Respondent still showed other reasons for its selec­
tion of Honaker.
Furthermore, because the General Counsel has essentially
conceded that Respondent was justified in laying off employ­
ees, a fact that I would have found in any event, there was no
showing by the General Counsel of the person who should have
been laid off, if Honaker had not. For example, there might
have been the claim that Richard Miller, hired in November
1998, was the sandblaster on the second shift who had less
seniority and Respondent should have selected that person,
instead of Honaker. The General Counsel did not prove that
Miller was less qualified at his job or that he did or did not
attend the union meeting.8 Accordingly, I conclude that the
General Counsel did not prove that Respondent selected
Honaker because he engaged in union activities and, even if
there were such proof, I conclude that Respondent laid off
Honaker for reasons that did not violate the Act and that it
would have taken the same action even in the absence of
Honaker’s protected conduct. Wright Line, 251 NLRB 1083
(both the 36 inch diameter and 52 inch bench saw) follow; and the least
skilled are the painters, sandblasters, and warehouse employees, includ­
ing helpers.
7 Honaker was warned on January 18 and December 14, 1990, for
substandard work, and was warned on July 22, 1991, for taking far
much time to grind material. He was given a warning for being late on
July 6, 1992, and was warned 11 days later when he became angry and
threw a caulking gun, almost hitting another employee. Honaker was
suspended for 3 days without pay for substandard work on August 6,
1992, was issued a warning about tardiness and absenteeism on June
17, 1996, and was given a verbal warning for horseplay on July 2,
1997.
8 Robert Farrell, a painter on the second shift, hired on August 7,
1998, does sandblasting, too.
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982); approved in NLRB v. Transportation Man­
agement Corp., 462 U.S. 393 (1983); Naomi Knitting Plant,
328 NLRB 1279 (1999); Manno Electric, 321 NLRB 278
(1996).
I reach the contrary conclusion regarding Bonnett, who had
been employed continuously for 5 years and had previously
been a layout fitter, a skilled job, on the night shift. Stover testi­
fied that Bonnett was removed from his position as a fitter be-
cause of low production, but there is nothing in Bonnett’s file,
as there was in the files of other employees who were not laid
off, indicating that he was ever warned about low production.
Nor is there any record that Bonnett was removed from his job.
Rather, I find truthful Bonnett’s testimony that he voluntarily
transferred from that job because he wanted to work on the day
shift and there was an opening on the day shift for someone to
run the warehouse. Not only was he accomplished as a fitter.
He performed and filled in on other skilled jobs, such as work­
ing the saws and operating the angle master, without adverse
criticism. He, unlike almost 90 percent of the employees, could
read blueprints, which was required for many of the skilled
jobs.
Respondent’s contention that Bonnett was a poor worker has
no substance. Stover testified that Bonnett was disciplined
much more frequently than the other employees. In Respon­
dent’s zeal to show how bad he was, Respondent added to his
personnel record a warning given to Bonnett’s father, who also
works at the plant. Furthermore, Stover’s testimony was not
based on fact, as he acknowledged that Michael and Richard
Bowles were each given two written warnings in 1998 and
1999 relating to their low production and inadequate work, yet
Stover did not even look at their files. On that basis, Stover
cannot claim the truth of his opinion of the disciplinary prob­
lems of Bonnett, as compared with the other employees, be-
cause he never compared them. In addition, Bonnett’s person­
nel record does not appear to be that horrid. The most serious
discipline resulted from Bonnett’s failure to work overtime on a
weekend in February, when he and three other employees—
none of them were laid off—were suspended for 3 days. Other
than that, Bonnett was given warnings for not wearing his
safety glasses on May 2, 1998; for excessive tardiness on June
17, 1996; and for tardiness on May 29, 1992.
Respondent’s criticism of Bonnett’s work was unsupported
by any written discipline. Other employees were given written
and verbal warnings. Adkins even thought enough of his own
failures to issue a written warning to himself, yet Bonnett’s file
is empty. Respondent’s witnesses also contradicted one another
in an attempt to embellish on Bonnett’s poor work habits.
Stover said that he had no problem with Bonnett’s accuracy in
performing his job, yet Adkins complained of mistakes, also
not documented. Finally, it appears that, on occasion, Bonnett
had a dispute with his supervisor, Neely; but, once again, there
is no documentary evidence that their relationship of about 10
months, even if difficult on occasion, represented a problem to
the proper functioning of the Poca facility or anything more
than the typical dispute that an employee might have with a
supervisor. If Neely had had as much difficulty with Bonnett as
he testified, surely Neely would have issued a warning of some
WEST VIRGINIA STEEL CORP. 39
sort. Yet, Bonnett’s personnel file was barren of any suggestion
that Neely was having problems with his employee. Indeed, in
early 1999, Neely told Bonnett that he had recommended a
raise for both him and another employee; and Stover confirmed
that fact, but said that he could not give any raises.
In sum, there is little to indicate the reason that Respondent
selected Bonnett for a permanent layoff rather than someone
else, particularly second shift warehouseman, Christopher
Burdette, who was hired a month before, on February 15 (the
same day as Foster, who was laid off solely because he was a
new employee),9 and instead of the person who assisted Bon-
nett on his shift, Rick Harris,10 who was hired in November
1998, took over Bonnett’s duties (with Neely), and had little or
no experience as a saw operator or a layout fitter operator or an
angle master machine operator or a drill operator or a plate
shearer, all the jobs that Bonnett had performed without warn­
ing or discipline. I conclude that Respondent selected Bonnett
for layoff because of his known union activities and am not
persuaded that he would have been selected before the less
senior employees in any event, had he not engaged in union
activities.
In so concluding, I do not rely on the General Counsel’s con­
tention that Respondent did not prove its need to lay off its
employees permanently, the implication being that an employer
has a right to lay off its employees only when it agrees to recall
them, if they should be needed again. The General Counsel
cites no Board decision that supports this contention; and I have
found no authority that declares a layoff unlawful on the sole
ground that it is permanent. The General Counsel belittles Re­
spondent’s claim that it wanted to secure a more skilled labor
force, claiming that that is merely a euphemism for employees
who are not union activists or supporters. Surely, however,
Respondent has the right to seek employees who are able to
perform skilled positions and who, when needed, are able to fill
in at jobs that are less skilled. A reading of Respondent’s June
pay recommendations demonstrates that Respondent was ready
to reward those employees who would move from job to job
and who were equipped to work at skilled positions and fill in
at less skilled positions when needed. Finally, Respondent has
hired no one to fill Spurlock’s or Honaker’s positions. Its only
new hires are skilled employees or temporary employees being
trained for skilled positions.11
9 Stover testified that he did not lay off Burdette, despite his lack of
skills, especially when compared to Bonnett, because Burdette was a
“fast learner” and Stover liked his “attitude.” I do not believe him. To
the extent that he may have liked Burdette’s attitude, he disliked Bon-
nett’s because of his union advocacy. By June 10, Burdette was still
working in the warehouse and was not employed in a skilled job.
10 Stover testified that Harris, too, “catch[es] on pretty quick” and
that he had the potential to move into fabrication because of “[h]is
attitude, self-confidence in himself.” When Stover laid off Bonnett, he
asked what was going to happen to Harris. Stover replied that he would
probably get Harris next. There is no credible evidence of a reason that
Stover did not lay off Harris first, except for Respondent’s illegal moti­
vation.
11 Each year, Respondent has hired temporary employees during the
summer months and laid them off afterwards.
There were several other unfair labor practices alleged in the
complaint, the first of which related to the OSHA inspection
that was held on February 23. When it was determined that
OSHA was going to recommend fines against Respondent
(OSHA issued a citation on March 2, with a potential fine of
$9420),12 Adkins told some employees that he had some good
news and some bad news: The good news was that they had
been awarded pay raises; the bad news was that they were not
going to get the raises because of the assessment of the fines by
OSHA. At least that is the version of Adkins’ narration by
some of the witnesses. Consistent with their testimony is
Stover’s testimony that he told Adkins to tell the employees
that “all pay raises would be frozen depending on the outcome
of the OSHA inspection fines and/or penalties.” Adkins and
Production Superintendent David Cooper testified differently,
to the effect that Adkins, pursuant to Cooper’s instruction, went
around the shop and told all the employees, even those who
were not due raises, that the raises were being held up not only
because Respondent did not know how the OSHA inspection
would affect Respondent’s financial condition but also because
business was slow.
That makes a profound difference. In the first instance, em­
ployees are clearly being advised that if they complain to
OSHA, that is, if they engage in protected activities, they are
going to suffer for it. But, if the withholding of the raise was
due to Respondent’s poor financial condition because of the
lack of work, then there is no violation. There were only two
employees whose testimony arguably supported Adkins.
Honaker recalled that the raise was going to be held up not only
because of the OSHA fine but also because “they didn’t know
where they stood at in the profit sharing. On how the profit
sharing was going to be.” Honaker also recalled that Adkins
mentioned Respondent’s “financial situation.” Jackie Chandler
testified that Adkins also said, “We don’t know if we have the
money to give out raises.” The testimony of both employees
indicates that Adkins was clearly relating the OSHA fine to
Respondent’s financial ability to pay the increase. In neither’s
recollection did Adkins relate that the raises were being held up
because of a lack of work. In light of Stover’s admission, I
discredit testimony to the contrary and credit those witnesses
who testified that Adkins’ mentioned only the OSHA fines.
Accordingly, I discredit Adkins’ testimony. In addition, Re­
spondent failed to elicit any proof that the fine reduced its as-
sets to such an extent that it was foreclosed from raising the
wages of the eight or nine employees to whom it planned to
give such increases. Accordingly, I conclude that Respondent
violated Section 8(a)(1) of the Act.
Another alleged unfair labor practice relates to my finding
that Respondent had knowledge of the employees’ union activi­
ties. According to most of the witnesses, including several
called by Respondent, S. Richard Smith, Respondent’s presi­
dent, spoke to the day-shift employees within a week of the
layoffs, exhorting everyone to be a team player and “if you
didn’t want to be on the team, you didn’t need to be there.”
Most of the witnesses could recall little else of what Smith said.
12 On March 19, Respondent informally resolved the violations,
agreeing to pay fines of $5400.
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Smith, however, did, in testimony that was unfortunately punc­
tuated by leading questions, he told the employees that he was
very sorry to have the layoff a week before, but it was neces­
sary for the company to continue. Business had not come in the
way management thought, despite the fact that it was doing
everything in its power to obtain work, even work that it was
taking at cost, with no profit, just to keep the employees work­
ing. “You can rest assured that we’re doing everything in our
power to get work in here and it don’t even have to be at a
profit. If we can get it in here at cost to keep us working,
“we’re doing that.” As to the present, Smith said that the books
were not yet closed and management could not figure out what
the profit sharing was going to be. As to the future, “surely
things were going to get better.”
Smith testified that he told the employees that they were the
company’s most important asset and that he would invest in
them as much as possible. He added that his philosophy was
that of a team. If he had a problem with the employees, he
would address it and, together, they would talk about it and
resolve it. On the other hand, if the employees had a problem
with management, they should come and talk to management,
who would listen and meet the employees halfway. If the em­
ployees did not feel that they were getting the right answer
from the supervisors or feel that they were being treated un­
fairly, they should take the problem to the next level; and if that
did not work, the door to Smith’s office was always open.
Above all else, he wanted the employees to be as happy as
management could make them, so that the company could take
care of its customers and take care of its future. When Respon­
dent’s counsel asked Smith whether he said anything about
employees who did not want to be members of the team, he
avoided answering, stating: “I told them that they should be
able to discuss their problems, I have opened every door, we
want you to come and talk, let’s get them resolved and let’s
move on.” I find that he made the remarks attributed to him by
almost all of the witnesses.13
Smith explained that he met with the employees to cheer
them up by looking forward together to the future. As he testi­
fied:
The purpose was to try to get everybody to understand that
things weren’t so bad, to get the spirits up a little bit, because
we didn’t have no work, we’d just had a layoff, we had a cou­
ple of other things going on, one of them was profit sharing,
that had not been done at that point.
But that could not have been the sole purpose. First, Smith
spoke only to the Poca employees. He did not speak to the em­
ployees at the Charleston facility, which suffered from the same
poor financial conditions as did the Poca facility. Second, there
was nothing about the suggestion of quitting that would pick up
the employees’ spirits. Nor was there any incident that would
have caused Smith to make the suggestion or that indicated
anyone’s failure to be on the “team,” except for two recent
facts: the holding of the union meeting and the complaint to
13 Even his son corroborated their test imony. The best testimony that
Respondent could elicit was that of two employees who denied that
Smith said anything to the effect that employees should resign because
of their union activity.
OSHA that Respondent (clearly Neely) may have attributed to
Bonnett. Smith’s remarks were aimed at one of those activities,
more probably the union activities, indicating that union activi­
ties were incompatible with continued employment. I conclude
that Respondent violated Section 8(a)(1) of the Act. Paper
Mart, 319 NLRB 9 (1995).
Finally, the complaint alleges that after Honaker was laid off,
he came back and reported that fact to Farmer, who immedi­
ately interrogated him about who was at the meeting, specifi­
cally asking for the names of the employees on the second shift
and asking whether one employee in particular, Dickie Jett, had
attended. Farmer said that Adkins had, for a long time, been
wanting to get something on Jett so that Respondent could get
rid of him. Farmer denied this interrogation, but I find no rea­
son that Honaker would make this up. Indeed, I found Farmer
to be thoroughly outside the loop and unaware of what man­
agement was doing or thinking. Thus, his lack of understanding
that Respondent was never restricted from discharging Jett,
who had engaged in one act in the past that all agreed was irre­
sponsible and extraordinarily dangerous. Nor did Farmer un­
derstand that Jett seemed to have reformed, and Respondent
considered him more valuable. Indeed, Jett was recommended
for a wage increase in June as a hard working, fully cooperative
employee. In sum, Honaker’s testimony is credible, and I find
that Respondent engaged in illegal and coercive interrogation in
violation of Section 8(a)(1) of the Act.14
The unfair labor practices that I have found constitutive un­
fair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. Specifically, having found that Respondent
discriminatorily laid off Bonnett, I will order it to offer him
reinstatement and make him whole for any loss of earnings and
other benefits, computed on a quarterly basis from date of his
layoff to the date of Respondent’s proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER
The Respondent West Virginia Steel Corporation, a wholly-
owned subsidiary of Raleigh Mine & Industrial Supply, Inc., its
officers, agents, successors, and assigns, shall
14 Technically, Honaker may not have been an employee, because he
was laid off minutes before. There is nothing to demonstrate, however,
that he was not paid for the whole day, so he was still on the payroll.
15 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recom­
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
WEST VIRGINIA STEEL CORP. 41
1. Cease and desist from
(a) Engaging in surveillance of its employees and monitoring
their activities.
(b) Informing its employees that a pay raise that had been
approved would not be granted because of their concerted and
protected activities.
(c) Coercively interrogating its employees about their union
support or union activities.
(d) Implying that its employees should resign if they contin­
ued to engage in union activities.
(e) Permanently laying off or otherwise discriminating
against its employees for supporting the United Steel Workers
of America, AFL–CIO–CLC, or any other union.
(f) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaran­
teed them by Section 7 of the National Labor Relations Act.
2. Take the following affirmative action necessary to effec­
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Bobby
Bonnett Jr. full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ­
ously enjoyed.
(b) Make Bobby Bonnett Jr. whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section of this
decision.
(c) Within 14 days from the data of this Order, remove from
its files any reference to the unlawful discharge, and within 3
days thereafter notify the employee in writing that this has been
done and that the discharge will not be used against him in any
way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per­
sonnel records and reports, and all other records including an
electronic copy of the records if stored in electronic form, nec­
essary to analyze the amount of backpay due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at its fa­
cility in Poca, West Virginia, copies of the attached notice
marked “Appendix.”16 Copies of the notice, on forms provided
by the Regional Director for Region 9, after being signed by
Respondent’s authorized representative, shall be posted by
Respondent immediately upon receipt 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 Respondent to ensure that the notices are
not altered, defaced, or covered’ by any other material. In the
event that, during the pendency of these proceedings, Respon­
dent has gone out of business or closed the facility involved in
these proceedings, Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by Respondent at any time since
February 23, 1999.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso­
far as it alleges violations of the. Act not specifically found.
16 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.”