Lyman Steel Co.

296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lyman Steel Company and James Green, Ray Norris, and Ronald Marek Lyman Steel Company and Enoch Gray and Exca- vating, Building Material, Construction Drivers, Race Track Employees, Manufacturing, Proc- essing, Assembling and Installer Employees, Local Union #436 of Lake, Geauga, Cuyahoga County and Vicinity, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Party in Interest Lyman Steel Company and International Union, Allied Industrial Workers of America, AFL- CIO. Cases 8-CA-11951, 8-CA-12184, 8-CA- 12290, 8-CA-12290-2, 8-CA-11969, 8-CA- 12003, 8-CA-12357, and 8-RC-10916 May 6, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On November 27, 1979, Administrative Law Judge Leonard M. Wagman issued the attached Decision in this proceeding. Thereafter, the Re- spondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Lyman Steel Company, Warrensville Heights, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent contends that the Administrative Law Judge's con- clusions, pertaining to the termination of employee Norris. reveal a bias and prejudice against the Respondent Upon careful examination of the Administrative Law Judge's D)ecision and the entire record herein, we are satisfied that this contention is without merit. 249 NLRB No. 40 DECISION STATEMENT OF THE CASE LEONARD M. WAGMAN, Administrative Law Judge: Upon charges filed by James Green in Case 8-CA- 11951, by Ronald Marek in Case 8-CA-11969, and by Enoch Gray in Case 8-CA-12003, the Regional Director for Region 8 issued an order consolidating cases, consoli- dated complaint, and notice of consolidated hearing on June 29, 1978, against Respondent, Lyman Steel Compa- ny. Thereafter, on July 12, 1978, the Regional Director for Region 8 issued an amendment to consolidated com- plaint, naming Excavating, Building Material, Construc- tion Drivers, Race Track Employees, Manufacturing, Processing, Assembling and Installer Employees, Local Union 436 of Lake, Geauga, Cuyahoga County and Vi- cinity, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Local 436, as a party in interest in Case 8-CA-12003. Thereafter, on September 7, 1978, the Regional Director isssued an order consolidating cases, complaint, and notice of consolidated hearing based on a further charge filed by James Green, an individual, in Case 8-CA-12184. The Regional Director issued a fur- ther order consolidating cases, complaint, and notice of consolidated hearing on October 30, 1978, upon addition- al charges filed by Ray Norris, an individual, in Cases 8- CA-12290 and 8-CA-12290-2 against Respondent. Final- ly, on December 7, 1978, the Regional Director issued an order consolidating cases, complaint, and notice of hearing upon a charge filed by International Union, Allied Industrial Workers of America, AFL-CIO, re- ferred to herein as AIW, against Respondent. The con- solidated cases captioned above allege that Respondent violated Section 8(a)(l), (2), (3), and (5) of the National Labor Relations Act, as amended (29 U.S.C. 151, et seq.), referred to below as the Act. The Respondent, by an- swers to the complaints and amendments, denied com- mission of any of the alleged unfair labor practices. AIW filed a petition for certification in Case 8-RC- 10916 on April 28, 1977. On May 24, 1977, pursuant to a Stipulation for Certification Upon Consent Election, the Regional Director conducted an election in the following unit at Respondent's Warrensville Heights, Ohio, plant: All production and maintenance employees and truck drivers excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. The tally of ballots shows that out of 36 eligible voters, 13 voted for Petitioner, AIW, 17 voted for Intervenor, Local 436, and I voted against both labor organizations. The challenged ballots of five employees were sufficient to affect the outcome of the election. Thereafter, pursu- ant to a settlement stipulation, approved by the Board and enforced by a judgment, the Board set aside the election of May 24, 1977, and directed the Regional Di- rector to conduct a second election at such time as he deemed appropriate. On September 22, 1978, the Regional Director con- ducted a second election among Respondent's production LYMAN STEEL COMPANY 297 and maintenance employees. The tally of ballots shows that of 30 eligible voters, 7 cast ballots for AIW, none cast votes for Local 436, and 16 cast votes against both labor organizations. The challenged ballots were insuffi- cient in number to affect the results of the election. On December 6, 1978, the Board directed a hearing on Local 436's and AIW's Objections 1, 2, 3, and 5 to con- duct affecting the election's results. The Regional Direc- tor consolidated the objections with the captioned unfair labor practice complaints in the instant case.' The hear- ing in this consolidated case was held before me in Cleveland, Ohio, on April 23, 24, and 25, 1979. Upon the entire record in these cases and from my ob- servation of the demeanor of the witnesses, and after having considered the briefs filed by the General Coun- sel and the Respondent, I make the following: FINDINGS OF FACT I. THE RESPONDENT'S BUSINESS Respondent, an Ohio corporation, engages in the fabri- cation of steel products at its Warrensville Heights, Ohio, plant. Annually, Respondent, in the course and conduct of its business operations, receives goods valued in excess of $50,000 at its plant directly from points lo- cated outside the State of Ohio. From the foregoing facts, which Respondent has admitted, I find that Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS AIW and Local 436 are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and Issues On April 25, 1977, one of Respondent's employees, Timothy McConnell, contacted AIW's regional director, Nick Serraglio, about organizing Respondent's employ- ees. The following day Serraglio met with McConnell and other of Respondent's employees. Thereafter, AIW undertook to organize Respondent's production and maintenance employees. On April 28, Respondent re- ceived a mailgram announcing the AIW campaign and identifying six employees as organizing committee mem- bers. By the end of April or in early May 1977, Re- spondent's president, Richard Green, received a letter announcing the AIW organizing drive and identifying 17 employees as members of AIW's organizing committee. On or about May 1, Respondent received AIW's writ- ten claim of majority status in a unit of its production and maintenance employees and requesting recognition and bargaining. Respondent has never acceded to that request. As of April 27, 1977, the date of AIW's letter demanding recognition and bargaining, AIW had signed authorization cards from 24 of Respondent's 34 produc- In his Report on Objections to Second Election the Regional Direc- tor found that both AIW and Local 436 allege: "[T]hat during the critical period the Respondent] threatened, interrogated, discriminated against employees because of their union sympathies and otherwise interfered with the conduct of the election." tion and maintenance employees. Nevertheless, on April 28, 1977, AIV,' filed a representation election petition in Case 8-RC-10916 seeking an election in a unit of Re- spondent's production and maintenance employees. In the meantime, beginning on or about April 29, 1977, Local 436 set about attempting to organize the same unit of employees. By May 14, 1977, Local 436 had obtained a number of authorization cards among Respondent's production and maintenance employees. Local 436 also intervened in the pending representation election in Case 8-RC-10916. During the few weeks leading up to the first election in Case 8-RC-10916, on May 24, 1977, Respondent as- sisted Local 436. Thus, prior to the first election, Re- spondent's vice president, Steven A. Green, asked em- ployee Daniel Sheehan to sign an authorization card for Local 436. Steven Green said he would make "it worth [Sheehan's] while." Earlier in the preelection period, Steven Green offered Sheehan $200 if he would sign a card for Local 436. On the date of the election, Steven Green telephoned employee Sheehan and berated him for failing to vote for Local 436. Steven Green said that he knew exactly how each employee had voted in the Board-held election. On May 25, Vice President Steven Green scolded Sheehan for not voting for Local 436. Following a heated exchange that same day, Vice President Green discharged Sheehan. 2 Shortly before the second election Respondent openly admitted partiality. Respondent's president, Richard Green, speaking to a group of his employees, in Septem- ber 1978, admitted that in the 1977 preelection campaign, "some of the members of management apparently decid- ed that between the AIW and the Teamsters, they would just as soon deal with the Teamsters." On April 27, 1977, employee Robert Burnett signed an AIW authorization card. During this first preelection campaign, Vice President Green solicited Burnett's sig- nature on a Local 436 authorization card. Burnett took the card, but did not sign it. Instead, he gave it to em- ployee James Rakowicz. The next day, Vice President Green asked Burnett for the card. Burnett replied that he had left it at home. A few hours later, Green offered a second Local 436 card to Burnett. Burnett asked Rakowicz to return the first card, which Burnett signed and gave to Vice President Green. During the pendency of the election of May 24, 1977, Vice Presidents Ellie Brothag and Steven Green repeat- edly asked Burnett which union he intended to vote for. Burnett responded that he would vote for Local 436. However, he intended to vote for AIW. On the evening of May 23, 1977, Vice President Green telephoned Burnett at home and sought to assure himself that Burnett would vote for Local 436. Steven Green told Burnett that, if Local 436 won the election, Re- spondent intended to terminate employees Tim McCon- nell, Terry McConnell, Jim Rakowicz, David Ciprian, Douglas Ciprian, and Graham Coghill. Green also 2 The findings regarding Vice President Steven A. Green's confronta- tions with employee Sheehan are based on Sheehan's uncontradicted tes- timony. LYMAN STEEL COMPANY 2q7. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warned that even if Local 436 lost, these employees might "be gone" within 1 year. On the day of the election, Vice President Ellie Brothag pressed Burnett to reveal his intended vote. After receiving his assurance that he would vote for Local 436, Vice President Brothag told Burnett that Re- spondent would reward him after the election. On the evening of May 24, after the election, Vice President Green telephoned Burnett and expressed doubt as to Burnett's vote. Vice President Green went on to say: "Because you didn't vote with us, we will have trouble out in the shop for the next year now." Early on the morning of May 30, 1977, Vice President Steven Green telephoned Burnett at home and told him that he believed that Burnett had lied about voting for Local 436 and that he wished that Burnett would quit. Burnett agreed to quit. However, on the following day, Burnett reported for work. Vice President Green came to Burnett's work station and repeated his wish that Bur- nett would quit. That same day, after one more unsuc- cessful attempt to pressure Burnett into quitting, Vice Presidents Green and Brothag fired him, giving as the reason "insubordination." 3 I find from former employee 4 John Verbic's uncontra- dicted testimony that, on one occasion during the union campaigns preceding the May 1977 Board-held election, Vice President Green instructed him to attend a Local 436 meeting. As an inducement, Green promised Verbic I hour's pay. Verbic attended the meeting and received $4 in cash from Vice President Green. I also find from Verbic's undenied testimony that, on the day of the May 1977 election, Vice Presidents Steven Green and Ellie Brothag questioned Verbic regarding his intention to vote for Local 436. Earlier in the same preelection period, it is undisputed that Brothag paid employee Verbic $20 to attend a AIW meeting and report to her who was there and what had occurred at the meeting. I also find from Verbic's unden- ied testimony that, about the same time, Brothag told Verbic not to sign an AIW card and assured him that Respondent "would take care of [him]" if he signed a Local 436 authorization card. In May 1977 Vice President Brothag came to employ- ee Enoch Gray at the plant and encouraged him to vote for Local 436. Also, prior to the May 1977 election, Vice President Green gave Gray $200 to induce him to vote for Local 436, and promised a further payment of $250 to be made to Gray after the election. Finally, although Gray was absent from work on the workday following July 4, 1977, Vice President Brothag, in a departure 3 My findings regarding Burnett's confrontations with Steven Green and Ellie Brothag and his treatment at Respondent's hands are based on Burnett's testimony. Brothag denied that she asked employees how they intended to vote or that she attempted to persuade employees to support Local 436. Howev- er, doubt was cast on her denials by the remarks of Respondent's presi- dent to groups of his employees in 1978 in which he admitted that Re- spondent's management had favored Local 436 during the previous year. More important to her credibility was her demeanor on cross-examina- tion. For, when cross-examined about her attitude toward Local 436, and about whether she talked to or questioned employees about Local 436, Brothag became evasive. I have therefore rejected her denials. Steven Green did not testify at this hearing. Respondent employed Verbic from March 20 until June 20, 1977. from Respondent's policy, paid him for both the holiday and the day on which he was absent.5 Prior to the May 1977 representation election, Re- spondent's hostility toward AIW also manifested itself in the form of threats and other coercive conduct. On May 19, 1977, President Green approached employee James E. Rakowicz, an AIW activist, at the plant and accused him of "trying to conduct a war against [President Green] and put him out of business." Rakowicz denied the accusations, adding that he was attempting to defend employee rights "in the shop." President Green warned that that was "where" Rakowicz would "pay for it." President Green threatened to do all that he could "to make every day at Lyman Steel as miserable as possible for [Rakowicz] .... " Green threatened to prevent Rakowicz from gaining employment elsewhere. Presi- dent Green warned Rakowicz that no matter which union succeeded in organizing the employees, Respond- ent would keep Rakowicz' hourly rate "at $6.90 and no overtime." In the same encounter, President Green turned his at- tention to employee Timothy McConnell. President Green warned that he had enough cause to discharge McConnell "after the election." He also said that he would make Rakowicz "sorry that [he] ever knew Tim McConnell." On June 10 President Green suspended Rakowicz pending an investigation. When Rakowicz questioned the suspension, President Green replied that it was for re- marks Rakowicz had made about Respondent, and be- cause of Rakowicz' attitude and work. On or about June 20, Respondent notified Rakowicz that he was terminat- ed. Terry McConnell signed an AIW authorization card on April 27, 1977, at Respondent's parking lot. On or about April 29, President Richard Green warned em- ployee Terry McConnell that, if the AIW succeeded in its organizing efforts, the employees would lose benefits such as cost-of-living increases, overtime, and the profit- sharing plan. President Green warned that all of the aforementioned benefits were gifts which came from Re- spondent, who could revoke them. Prior to May 1, 1977, Terry McConnell worked a standard 10-hour day and 8 hours per day on three out of four Saturdays. However, after May 1, 1977, and until his discharge on June 20, 1977, Respondent did not assign any overtime to Terry McConnell. On May 19, 1977, Respondent's vice presi- dent, Ellie Brothag, suspended Terry McConnell for 5 days, giving as the reason that he did not complete his work. On June 20, President Green terminated Terry McConnell, giving as the reason that Terry McConnell wrote obscenities on a plant bathroom wall." Soon after employee Michael DeFoor signed an AIW card on April 26, 1977, I find from his credible testimony I Enoch Gray seemed to be a candid witness giving his honest recol- lection. Therefore, my findings regarding his encounters with Vice Presi- dent Brothag and Green are based on his testimony. I My finding regarding James Rakowicz' confrontations with President Richard Green and Rakowicz' treatment at Respondent's hand were based on Rakowicz' uncontradicted testimony. I My findings regarding Terry McConnell's confrontations with Presi- dent Green and Vice President Brothag and his treatment at Respond- ent's hands are based on Terry McConnell's uncontradicted testimony. LYMAN STEEL COMPANY 299 that Vice Presidents Ellie Brothag and Steven Green in- terrogated him regarding his reasons and other employ- ees' reasons for wanting union representation. I find from President Richard Green's testimony that he became incensed upon learning that employee Ray Norris had filed an unfair labor practice charge against Respondent in Case 8-CA-11565. President Green ad- mittedly sought out Norris in Respondent's plant and upon finding him called him "trash," "a liar," and "two faced," all because Norris filed the charge. The foregoing incidents, together with other asserted incidents, were alleged as unfair labor practices in charges filed against Respondent by various individuals in Cases 8-CA-1113, 8-CA-11127, 8-CA-11137, 8-CA- 11160, 8-CA-11217, 8-CA-11481, and 8-CA-11565. These allegations, together with objections to conduct affecting the results of the representation election con- ducted on May 24, 1977, were treated in the settlement stipulation which the Board approved in a Decision and Order issued on May 15, 1978. In the same Decision and Order, the Board set aside the election and directed a second rerun election. In an order severing cases and notice of consolidated hearing issued on January 25, 1979, the Regional Director severed Cases 8-CA-1113, 8-CA-11127, 8-CA-11137, 8-CA-11160, 8-CA-11217, 8-CA-11481, and 8-CA-11565, from the cases captioned above. Since May 24, 1977, AIW and Local 436 have persist- ed in their efforts to organize Respondent's production and maintenance employees. The issues presented here are whether, in response to this union activity among its employees, Respondent has violated Section 8(a)(1) of the Act by: (a) offering to pay and paying employees to threaten and harass employees who were supporting AIW; (b) interrogating employees concerning their union activity and sentiment toward unions; (c) interrogating employees concerning the union activity and union senti- ment of another employee; (d) threatening employees with discharge and other economic reprisals if AIW achieved certification as their bargaining representative; (e) ordering employees to cease discussing with fellow employees AIW, union representation, and Respondent's past alleged unfair labor practices; (f) threatening em- ployees with discharge, loss of overtime, or other repri- sals because they support AIW or associate with known AIW supporters; (g) confronting employees with the fact that Respondent knew they had signed authorization cards on behalf of AIW; (h) maintaining, enforcing, or applying a too broad no-solicitation rule; (i) threatening an employee with reprisals for joining, assisting, or sup- porting AIW; (j) asking an employee to sign a statement that he had received an AIW authorization card from another employee during working hours; (k) asking an employee if he had any friends who were opposed to AIW and who were looking for employment, prior to the voting eligibility date for the second election in Case 8-RC-10916; (I) promising an employee a wage increase if AIW's organizing campaign failed; (m) engaging in surveillance or giving its employees the impression that their union activities were under surveillance; (n) threat- ening an employee with plant closure if AIW's organiz- ing campaign succeeded; (o) threatening that strikers would have no hope of reinstatement; (p) threatening an employee by saying that he was earning 2 per hour more than the going rate for his job in a union shop; (q) threatening an employee with loss of benefits if AIW's organizing campaign succeeded; (r) threatening an em- ployee with demotion to temporary status because the employee supported AIW; and (s) threatening employees with layoff if AIW became the employees' certified col- lective-bargaining agent. Also presented is the issue of whether Respondent vio- lated Section 8(a)(2) and (1) of the Act by telling em- ployees of its intention to pay employees to induce them to support Local 436. Further issues presented are whether Respondent vio- lated Section 8(a)(3) and (1) of the Act by: (a) suspend- ing the employment of James Green; (b) discharging em- ployee James Green; (c) eliminating employee Ronald Marek's overtime hours; (d) discharging Ronald Marek; (e) refusing to pay holiday benefits to employee Enoch Gray; and (f) discharging Ray Norris, because the four employees, respectively, supported AIW. The final issue presented by the pleadings is whether since April 27, 1977, Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize AIW as the exclusive bargaining representative of the production and maintenance employees at its Warrensville Heights plant. B. Interference, Restraint, Coercion, and Unlawful Assistance to Local 436 During the week preceding November 24, 1977, Vice President Ellie Brothag offered $50 each o,, employees Ronald Marek and Charles Rankin to induce them to start a fight with employee David Ciprian so that he might quit. She gave as a reason that Ciprian favored AIW and that the employees supporting AIW were "messing the Company up." Marek and Rankin rejected Brothag's offer.8 During the week following November 24, 1977, Vice President Steven Green approached Marek and Rankin and offered $100 to each of them as inducement to pro- voke a fight with David Ciprian. Marek and Rankin took up the offer. On December 2 and 3 Marek and Rankin carried out their project. On December 2, they warned Ciprian that he was tampering with their employment and that, unlss he ceased, he would be cut. As he spoke, Marek dis- played a razor-edged tool. On the following morning, Marek, Rankin, and several other employees approached Ciprian and accused him of trying to cause them to be fired. They warned him to stop such activity or face death. On December 3, following the last threat, David Ciprian quit his employment at Respondent's plant and never returned. 9 ' Brothag did not testify about the offer attributed to her by Ronald Marek's testimony. Instead she denied actually paying or knowing about any payments for harassment or physical attacks on employees. In any event, of the two, Marek impressed me as the more frank and forthright witness. I have therefore credited his testimony regarding this encounter with Brothag. 9 My findings regarding Ciprian's encounters with Marek and Rankin on December 2 and 3, 1977, are based on Ciprian's testimony. Marek's version was that he, Marek, grabbed Ciprian, shook him, and pushed him Continued LYMAN STEEL COMPANY 299 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD First, it appears the Brothag's attempt to enlist Marek and Rankin in her scheme to coerce David Ciprian may have predated the filing of the earliest of the unfair labor practice charges before me, captioned above as Case 8- CA-11951, by more than 6 months. In light of the 6- month limitation imposed by Section 10(b) of the Act,° I do not find Brothag's conduct to be violative of Sec- tion 8(a)(1) of the Act. However, I find that Respondent violated Section 8(a)(l) of the Act by Vice President Green's efforts to enlist employees Marek and Rankin in his plan to coerce employee Ciprian into withholding his support from AIW. On another occasion after the Ciprian incidents, Vice President Steven Green suggested that Marek and Rankin rid Respondent of AIW supporters Michael DeFoor and Ray Norris. I find that, by this suggestion, Respondent again violated Section 8(a)() of the Act. On or about May 1, Ellie Brothag approached employ- ee Marek and asked him if he had signed an AIW au- thorization card, adding that she had heard "that every- body had been signing AIW cards." Marek answered that he had not signed such a card. In view of Respond- ent's union animus, as evidenced by unfair labor prac- tices found elsewhere in this Decision, I find this interro- gation was coercive and therefore violative of Section 8(a)(l) of the Act. I I On or about May 5, Vice President Brothag confront- ed employee Nick Bertovich and said, "I thought I told you to get that card back." Bertovich answered that he had. Brothag responded that his name was the "first one on the list." At this point, Brothag turned to Marek who had signed an authorization card on the previous day and said, "I thought you said that you would never sign one." Marek did not respond. Brothag added "at least you could have given us a chance." And added "You will be sorry for this." 2 Given the context I find that, by her confrontation with Bertovich, Brothag sought to coerce that employee into revoking an authorization card which she believed he had executed. I find her remarks were coercive and interfered unlawfully with the employee's right under Section 7 of the Act to support a labor organization. Ac- cordingly, I find that by her remarks Respondent violat- ed Section 8(a)(l) of the Act. down and that Ciprian quit immediately after the assault. Marek appeared embarrassed as he provided this sketchy account. As Ciprian appeared to be more at ease as he provided a fuller and more logical description, I considered him the more reliable witness of the two. 10 Sec. 10(b) of the Act provides in pertinent part: . . That no complaint shall issue based upon any unfair labor prac- tice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made .... Marek testified that Brothag questioned him in April 1978. On direct examination by Respondent's counsel, Brothag, in response to a leading question, denied asking Marek about signing an AIW card in April. By her testimony, she did not exclude the possibility that she did so in May 1978. However, the General Counsel introduced authorization cards bearing dates no earlier than May 1, 1978. This circumstance per- suades me that Marek was inaccurate in his testimony. However, as Marek impressed me as the more candid of the two, I have credited his testimony that Brothag asked him if he had signed an AIW card, but find it more likely that she did so in early May 1978, rather than in mid or late April 1978. 1a My findings as to this incident are based on Marek's testimony. I also find that, by her remarks to Marek, Brothag warned that Respondent would punish him because he signed an AIW authorization card. By this threat, Re- spondent again violated Section 8(a)(1) of the Act. Later in May 1978, according to Marek's credited tes- timony, Brothag directed two employees to her office after confronting them in the plant with the assertion that they had signed cards. In the context of the renewal of union activity, I find that Brothag was referring to AIW authorization cards. By Brothag's conduct, I find Respondent interfered with, restrained, and coerced em- ployees in the exercise of their Section 7 right to support AIW, and thereby violated Section 8(a)(1) of the Act. Also in the spring of 1978, Vice President Brothag and Green instructed Marek not to leave his work area and not to speak to employee Ray Norris, Enoch Gray, or James Green, all of whom were AIW supporters. As early as the spring of 1977, AIW had advised Respond- ent that Raymond Norris and James Green were mem- bers of its organizing committee. On May 8, 1978, Re- spondent received a mailgram from AIW announcing that Marek, Green, and Gray were members of the AIW organizing committee. Vice Presidents Green and Brothag emphasized their prohibition with respect to Norris and warned Marek that its violation would result in termination. I find that Respondent prohibited em- ployee Marek from associating with fellow employees because he and they were AIW supporters. By this blan- ket prohibition against any conversations at the plant be- tween employees who were AIW supporters, Respond- ent violated Section 8(a)(1) of the Act. On May 2, 1978, Enoch Gray signed an AIW authori- zation card. On May 5, 1978, Respondent received a mailgram naming Gray as an AIW activist. Approxi- mately 1 week later, Brothag told Gray not to sign an AIW authorization card because he "was supposed to be with the Company, and when you change like that . . . every thing is going to change now." She mentioned something about Local 436 and told Gray that the Com- pany would give him $250 "if [he] would stay with the Company." In assessing these remarks I recall that in 1977 Brothag and Vice President Steven Green had pressed money upon Gray to gain his support for Local 436. Those ear- lier incidents give specific meaning to the encounter be- tween Brothag and Gray in May 1978. I find that, viewed in this context, Brothag's remarks amount to a further attempt to enlist Gray's support for Local 436. First, Brothag implied that Gray's change to AIW would affect his relationship with Respondent. In light of Re- spondent's manifest hostility toward AIW, Gray was likely to conclude that Respondent would punish him for supporting AIW. The offer of $250 "if [he] would stay with the Company" translates into the presentation of further inducement to abandon AIW and support Local 436, the union favored by Respondent. I find that by Brothag's implied threat and her implied promise of money, both designed to coerce Gray into deserting AIW in favor of Local 436, Respondent attempted to 1a My findings regarding this incident are based on Gray's testimony. - -- LYMAN STEEL COMPANY 301 assist Local 436 and thereby violated Section 8(a)(1) and (2) of the Act. On or about May 3, 1978, Respondent's employee Richard Hlad received an AIW authorization card from fellow employee Ray Norris, who Respondent knew to be an AIW activist. Hlad signed the card and returned it to Norris that same day. Approximately one-half hour after he had returned the authorization card to Norris, Vice President Brothag came to Hlad, stated that she had heard that he had signed an authorization card, and instructed him to retrieve the card from Norris and bring it to her. Brothag added that Norris was "no good and he would get [Hlad] in trouble." Brothag warned Hlad to "stay away from [Norris)." ' Hlad obtained his AIW card and gave it to Brothag. By demanding that Hlad revoke his AIW authorization card and warning him that Norris, who had solicited his signature, would get Hlad into trouble, Brothag made plain that Respondent would punish Hlad if he did not abandon AIW. I find therefore that Brothag violated Section 8(a)(1) of the Act by her warning, and by pressing Hlad to retrieve his AIW card and give it to her. I find that Brothag again transgressed when, in the same context, she asked Hlad to sign a statement that he had received the authorization card from Norris during working hours. For, by pressing Hlad to make an accusa- tion against a known AIW activist, Brothag was suggest- ing that Respondent was planning reprisals for those who actively supported AIW. By this suggestion that it would punish AIW supporters, Respondent once again violated Section 8(a)(l) of the Act. In August 1978, Hlad had further confrontations with Vice President Brothag regarding union activity. In one incident, Hlad asked Vice President Brothag if she would hire his friend, Karl Golias. Brothag responded by asking Hlad: "Would this boy vote for the Union or the Company?" In mid-August, Brothag asked Hlad to iden- tify employees who would "vote for the Union" so that she could press them to quit. Brothag's interrogation of Hlad regarding the union sentiment of a prospective employee, occurring in the context of revealed union animus, was coercive and thus violated Section 8(a)(l) of the Act. I also find that, by both her attempt to press Hlad for the names of union supporters and her threat to constructively discharge prounion employees, Brothag violated Section 8(a)(1) of the Act. During the first week of September, Vice Presidents Green and Brothag violated Section 8(a)(1) of the Act by telling employee Hlad that, in the May 1977 represen- tation election, Respondent "knew how everyone voted." From this assertion, it was likely that the listen- ing employee would have concluded that Respondent had engaged in surveillance of what was to have been a secret-ballot election. Thus, I find that, by these remarks, Respondent unlawfully restrained, coerced, and inter- fered with its employees' right to support a labor organi- zation. I further find that Steven Green and Brothag also vio- lated Section 8(a)(1) of the Act when they told Hlad that 14 My findings regarding Richard Hlad's encounters with Vice Presi- dent Brothag are based on his credible and undenied testimony Respondent intended to fire Raymond Norris, who was a known AIW activist, if Respondent lost the scheduled representation election. I5 On or about September 5, Hlad heard a rumor at the plant that, if "the Union" lost the election, Respondent would grant a $1 wage increase to its employees. When Hlad questioned Vice President Brothag about the rumor, she confirmed it, except that she did not know how much it would be. In confirming the rumor, Brothag, on Respondent's behalf, was promising employ- ees a wage increase if they withheld their support from AIW and Local 436. I further find, therefore, that Re- spondent thereby violated Section 8(a)(1) of the Act. On September 11, Vice President Steven Green sum- moned employees Hlad, Cook, and Golias to his office, where he told the three that he did not want a union in Respondent's plant. Steven Green went on to ask the three employees why they wanted a union. Vice Presi- dent Green also warned that, if a union succeeded in or- ganizing Respondent's employees and if they went on strike and no agreement was reached on a contract, Re- spondent "could get rid of [them] and bring in a whole [new] crew." He also warned that he personally had enough money "to get by" even if Respondent closed its plant. In his encounter with employees Hlad, Cook, and Golias, Vice President Green violated Section 8(a)(l) of the Act. First, Green's questioning of the employees as to why they wanted a union, coming in the midst of Re- spondent's manifestations of union animus, was coercive and therefore violative of Section 8(a)(1) of the Act. I also find that Steven Green's remarks about a strike and replacement strongly suggested that if the employees engaged in an economic strike, Respondent would termi- nate them permanently without hope of reinstatement. By this warning, Respondent again did violence to its employees' freedom to choose a labor organization as their exclusive bargaining representative, and again vio- lated Section 8(a)(l) of the Act. Finally, by remarking that he had enough money to tide him over "even after closing the plant," Vice Presi- dent Green strongly suggested that, if the employees voted for union representation, Respondent would retali- ate by closing its plant. By this threat, I find Respondent violated Section 8(a)(l) of the Act. On September 13, 1978, Vice President Ellie Brothag asked employee Hlad about the union sentiments of em- ployee Bob Cook. Brothag asked Hlad if he knew whether Cook was "for the Union or the Company." Hlad responded, "I am pretty sure he's for the Compa- ny." Brothag responded that, if Cook were prounion, Hlad should tell her inasmuch as Cook was a probation- ary employee and Respondent could discharge him. By Brothag's threat to discharge Cook if he were prounion, Respondent violated Section 8(a)(1) of the Act. '5 My findings regarding Hlad's encounter with Vice Presidents Green and Brothag are based on his credible testimony. As previously slated. Brothag did not impress me as being a candid witness. Further, her testi- mony in response to Hlad's assertions consisted of mechanical sounding answers to leading questions by Respondent's counsel As noted earlier. Steven Green did not testify. LYMAN STEEL COMPANY 301 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Also in September 1978, Vice President Brothag came upon employee Karl Golias, Richard Hlad, and other employees sitting in the plant lunchroom after lunch, on working time. She remarked, "Now, see, if you would have had a union, you guys would have been terminat- ed." 1 By this warning, Brothag suggested that if a union succeeded in achieving representative status Re- spondent would retaliate against its employees by impos- ing stricter discipline on them. Beyond question, this threat violated Section 8(a)(l) of the Act. Respondent hired David Byomin on May 1, 1978. At the hiring interview Vice President Brothag told Byomin that a union was likely to be "coming in the shop." She went on to advise him to "keep your nose clean." She also warned him: "Don't talk to anybody out of your de- partment. Stay to your job."'7 Given the context within which Brothag uttered her warnings, I find that she was in essence warning the new employee that Respondent would look with disfavor on him if he supported a union, associated with prounion employees, or discussed the possibility of union representation with fellow em- ployees. By Brothag's warnings, I find Respondent again restrained and coerced an employee in violation of Sec- tion 8(a)(l) of the Act. On two occasions in late June 1978, Vice President Steven Green engaged in unlawful interrogation. In the first incident, Green asked employee Byomin, "Does Ray talk to you about the AIW when you are back there welding?" By this question, Steven Green focused on the union activities of employee Ray Norris. A few days later, Green again asked employee Byomin, "Does Ray talk to you about the Union at all?" Against the back- drop of Respondent's numerous manifestations of union animus, I find this interrogation regarding employee hours of union activity coercive, and thus violative of Section 8(a)(l) of the Act. On or about July 1, 1978, Ellie Brothag approached employees Richard Hlad and David Byomin regarding union activity. She told them: "You guys are young. You have a good future. You can build with this company. You have a good future here." Brothag pointed out that Respondent had a profit-sharing plan. At this, Byomin remarked that even Ray Norris liked that plan. Brothag responded, "If he likes that so much, why does he want to bring a union in here?" In this same conversation, Brothag said that, without a union, the Company had more flexibility and could move employees from one de- partment to another. Vice President Brothag asserted that if a union represented the employees the employer would be unable to make such transfers adding, "We would have to lay you off."' 8 Contrary to General Counsel's contention, I find that Brothag's question regarding Norris' reason for wanting union representation was in the nature of a rhetorical '" I based my findings as to this incident on the testimony of Karl Golias who seemed to be giving his honest recollection free of embellish- ment. 17 David Byomin impressed me as a candid witness attempting to pro- vide his best recollection of his initial conversation with Vice President Brothag. I have therefore credited his detailed account of the incident rather than Brothag's denials. I8 My findings regarding this incident are based on Byomil's testimo- ny. question evidencing Respondent's knowledge that Norris was in favor of union representation. Respondent had re- ceived information in the form of a mailgram from AIW in the spring of 1977 announcing that Raymond Norris was one of its organizing committee members. I also note that Norris' union activity and prounion sentiments were well known to the employees and that Respondent had questioned Byomin repeatedly about Norris' union activity. It thus appears that the only impression that an employer was likely to get from Brothag's question was that Respondent was puzzled by Norris' prounion senti- ment in the face of Respondent's profit-sharing plan. I shall recommend dismissal of so much of the consoli- dated complaint as is concerned with this alleged interro- gation. However, the remainder of Brothag's assertions re- garding transfers went beyond the bounds of opinion or argument. On cross-examination, employee Byomin agreed that Brothag's remarks referred to a hypothetical union contract and its requirement that an employer adhere to job classifications and refrain from transferring an employee from one classification to another. Howev- er, there is no showing that Brothag came forward with any actual collective-bargaining agreement containing such a provision. Thus, the thrust of Brothag's remarks was that, with the advent of a union as collective-bar- gaining representative, Respondent would impose a harsher policy upon employees and would lay them off rather than transfer them from job to job. I find, there- fore, that Brothag's remarks about Respondent's transfer policy violated Section 8(a)(l) of the Act. On the afternoon of September 13, 1978, 9 days before the scheduled rerun election, Respondent's president, Richard Green, spoke to employees Raymond Norris, Willie Allen, and two other employees in Respondent's main office. President Green raised the topic of employ- ees wages. He also stated that he did not want a union in the plant and that the employees benefits "were good the way they were." President Green also remarked that he would review each employee's situation to determine if individual wage increases were needed, and grant them where needed.'9 I find that the four employees listening to President Green were likely to conclude that, if they and most of their fellow employees voted against union representation, there would be a reward of increased wages from Respondent. I find, therefore, that President Green's remarks violated Section 8(a)(1) of the Act. On September 18 and 19, 1978, Vice President Steven Green, acting on Ellie Brothag's admitted direction, sta- tioned himself near employee Raymond Norris' work- place for the express purpose of keeping Norris under surveillance. Indeed, Brothag testified that she wanted Vice President Green "to contain Ray Norris to his welding department." However, whenever Norris left his work station, Vice President Green followed. In the course of the 2 workdays Vice President Green rarely left Norris alone. There can be little doubt that Respondent knew that Norris was an AIW activist. AIW notified President i9 My findings regarding this incident are based on Ray Norris' testi- mony. LYMAN STEEL COMPANY 303 Richard Green in 1977 that Norris was a member of its organizing committee. Further, the record shows that Norris continued to solicit employee support for AIW at the plant in 1978. Considering Respondent's hostility toward AIW, and management's repeated attempts to in- terfere with employee discussions of AIW on its prem- ises, I find that the purpose of Vice President Steven Green's surveillance was to further interfere with such conversations. I find, therefore, that, by this surveillance, Respondent violated Section 8(a)(1) of the Act. In the spring of 1978, Respondent issued work rules which prohibited its employees from: "Selling, soliciting or raising contribution, unless authorized." In his testi- mony, President Richard Green conceded that "it is a violation of [the quoted rule] for an employee to be so- liciting union cards on his own time in the plant during the work day." Later in 1978, Respondent replaced this rule with a new rule which prohibits: "Selling, soliciting or raising contributions during working hours." The General Counsel contends that the first of the above-quoted prohibitions is overly broad and that by its maintenance Respondent violated Section 8(a)(1) of the Act, notwithstanding that since its promulgation Re- spondent had issued a lawful rule. Respondent urges a finding of no violation on the grounds that while the quoted rule might have been unlawful it was not en- forced and further that a new "unquestionably valid" rule has supplanted it. I find that both rules are unlawful. The Board, in Essex International, Inc., 211 NLRB 749, 750 (1974), declared the following policy regarding no-solicitation rules aimed at employees: A rule prohibiting solicitation during "work time" or "working time" is, in our opinion, suffi- ciently clear to employees to justify requiring the party attempting to invalidate the rule to show, by extrinsic evidence, that, in the context of a particu- lar case, the rule was communicated or applied in such a way as to convey an intent to restrict or pro- hibit solicitation during breaktime or other periods when employees are not actively at work. On the other hand, in our opinion, a rule probibiting solici- tation during "working hours" is prima facie suscep- tible of the interpretation that solicitation is prohib- ited during all business hours and, thus, invalid. We would therefore require the employer to show by ex- trinsic evidence that, in the context of a particular case, the "working hours" rule was communicated or applied in such a way as to convey an intent clearly to permit solicitation during breaktime or other periods when employees are not actively at work [Emphasis supplied.] Measured against the Board's standard, both rules are overly broad and therefore prima facie invalid. In de- fending its rules, Respondent has failed to show that it affirmatively communicated to its employees, or demon- strated by application of the rules, that they were free to engage in solicitation during breaktime or other periods when Respondent, by promulgating and maintaining these two overly broad no-solicitation rules, violated Section 8(a)(l) of the Act. Birmingham Ornamental Iron Company, 240 NLRB 898 (1979). That no employee suf- fered punishment or that employees in fact solicited on Respondent's premises during breaks or other nonwork- ing time does not satisfy the Board's rule. The operative fact is that Respondent never communicated to its em- ployees that they were free to engage in solicitation while not actively working. See Allis Chalmers Corpora- tion, 224 NLRB 1199, 1202 (1976). Instead the employees were left to either abandon their Section 7 rights or pursue them and assume the risk. See N.L.R.B. v. Walton Mfg. Co., 289 F.2d 177, 180-181 (5th Cir. 1961). Approximately 2 weeks prior to the Board-held repre- sentation election of September 22, 1978, President Rich- ard Green held "a series of coffee sessions" with groups of employees in Respondent's coffeeroom. President Green testified that he "outlined [Respondent's] benefits, the [Respondent's] policies." He also asked them to "sup- port" Respondent. President Green testified that he probably assured his listeners that they did not need a union. He told them that Respondent had good benefits. President Green also asked the employees why they wanted a union to represent them. By the time of these meetings, Respondent's union animus had surfaced at the plant in the form of the various unfair labor practices found elsewhere in this Decision. In this setting, Presi- dent Green's question designed to ferret out the employ- ees' union sentiments was coercive. Accordingly, I find that, by President Green's questions, Respondent again violated Section 8(a)(1) of the Act. C. Discrimination 1. Ron Marek (a) The Facts20 Respondent hired Ron Marek in June 1977 and dis- charged him on May 18, 1978. At the time he was hired, Respondent's management told Marek to refrain from talking to AIW supporters and to vote for Local 436. Respondent's management also warned Marek that he would lose his job if he did not vote as instructed. In late 1977 Vice Presidents Ellie Brothag and Steven Green in- duced Marek and Marek's cousin, Charles Rankin, to provoke a fight with David Ciprian. In early December 1977, Marek and Rankin threatened and attacked David Ciprian. Later in December 1977, Vice President Green urged Marek and Rankin to physically attack employees DeFoor and Norris because they supported AIW. There is no showing that Marek or Rankin did so. On January 30, 1978, Marek was injured on the job. He returned to work in April 1978. As found above, ap- proximately 2 weeks after he returned to work, Vice President Brothag asked him if he had signed an AIW authorization card. On May 4, Marek signed an AIW card following his return to work. Ellie Brothag and Steven Green warned Marek not to talk to employees Norris, Gray, and Green. All three were AIW support- ers. By May 5, 1978, Respondent was aware of their AIW activities. 20 There are no substantial issues of credibility presented regarding the recitation of facts leading up to Marek's discharge, except as noted. I based my findings on Marek's testimony. LYMAN STEEL COMPANY 303 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On that date, Respondent received a mailgram from AIW listing Marek as a member of AIW's organizing committee at Respondent's plant. After Respondent had received this mailgram, Brothag admittedly sought out Marek in the plant and "asked him why." Brothag also expressed her recollection that Marek had assured her that he would never sign such a card. She added: "At least you could have given us a chance." She also warned that he would "be sorry for this." Following his return to work in April, and until May 5, Respondent assigned an average of 6 hours per week of overtime to Marek. However, on and after May 8, and until his discharge, on or about May 18, Respondent assigned no overtime to Marek. Indeed, on or about May 8, Brothag and Steven Green told him that his overtime "was cut." During the final week of Marek's employment Vice President Brothag and Supervisor John Urschalitz warned him to stay in the EDM room and to stop talk- ing to AIW supporters, Norris, Gray, and Green.2 ' On May 12 Respondent issued a written warning complain- ing of Marek's inattentiveness to the EDM machine. Marek testified that he had been inattentive as asserted in the warning. On May 18, 1978, Marek arrived at work to find a large puddle of oil flowing from his electric discharge machine.2 2 After Marek cleaned up the oil, both Ellie Brothag and President Richard Green told him that he was fired. Marek protested that similar incidents had happened before without discharge resulting. President Green responded: "I don't have anything against you. I just don't want you here." At this point, Marek left. 23 The following day, at Vice President Brothag's sug- gestion, Marek went to President Green's office. Marek complained to Green that other employees had caused oil leaks from the EDM machine and had not been fired. President Green did not rebut Marek's assertion. Instead, he offered to obtain employment for Marek as a welder. Green explained that he did not want Marek working for Respondent. President Green tried to persuade Marek to take the job as a welder. Marek neither sought nor took the job suggested by Green. On direct examination, Marek testified that, on the evening of May 17, he checked his EDM machine and closed all of its valves. He also testified that, before leav- ing, he noticed Supervisor Urschalitz near the EDM ma- chine. However, there is no showing that he protested his discharge to President Green or Respondent's other officers on and after May 18 on the ground that Urscha- litz tampered with his EDM machine. Indeed, under cross-examination, Marek expressed doubt as to whether 21 John Urschalitz, who was a supervisor during the period involved in Marek's discharge, testified that, after Marek returned to work in 1978, he was frequently away from the EDM machine talking to persons pass- ing by. However. Urschalitz did not contradict Marek's testimony that Urschalitz and Brothag had warned Marek not to talk to AIW activists, Norris, Gray, and Green. 22 1 find from President Green's testimony that this machine is used to punch holes in steel. 23 On cross-examination, Marek denied telling President Green that other employees had suffered oil leaks before. However, at that point, Marek seemed anxious, went on the defensive, and seemed to be embel- lishing his original account, which had been given in a forthright aniswer on direct examination. such a protest would have had any effect on his tenure. Nor am I persuaded that on May 18 and 19 Marek told President Green or Vice President Brothag that he had checked the valve and ascertained that it was shut down before leaving work on May 17. Although Marek testi- fied on cross-examination that he did make such a claim to Respondent's management, Marek did so in an uncer- tain manner. I have also noted his neglect to include an account of such a report either in his direct testimony re- garding conversations with President Green and Vice President Brothag on May 18 and 19 or in a pretrial affi- davit. It appears that other EDM operators suffered oil leaks earlier than Marek without repercussions from Respond- ent's management. Terry McConnell, an EDM operator in Respondent's employ from February 1973 to June 1977, testified credibly that he experienced frequent oil leaks from the EDM machine ranging from I gallon to 100 gallons. The larger spills covered the floor of the EDM room. Respondent did not discipline McConnell for any of his leaks. EDM operators Ulysses Butler and Joe White experienced oil spills without receiving any discipline from Respondent. White's spill occurred over- night, filled the EDM room floor, and extended beyond the room. I also find from employee Ray Norris' uncon- tradicted testimony that EDM leaks were not rare and that except for Marek no EDM operator suffered punish- ment because of such a leak. President Green also con- ceded that prior to Marek's discharge other employees had permitted oil to leak from the EDM machine and had not suffered any discipline at Respondent's hands. President Green was uncertain as to whether one such employee, whose name he could not remember, had been given "time off."2 4 (b) Analysis and conclusions The General Counsel contends and Respondent denies that it deprived Marek of overtime on and after May 8, 1978, until his discharge 10 days later, in reprisal for his announced support of AIW. I find ample support for the General Counsel's position. Marek signed an AIW card on May 4, 1978. On May 5, Respondent received word from AIW that Marek was in the forefront of its organiz- ing effort. That same day, Brothag warned that Marek would "be sorry" for supporting AIW. On May 8, she and Steven Green told Marek that his overtime was cut. Thereafter, in contrast to his enjoyment of substantial amounts of overtime prior to May 8, 1978, he received none. In its brief, Respondent proffered no explanation for this change in Marek's fortune. Nor did Respondent offer testimony or records to rebut Marek's testimony. In sum, the timing of the shutoff of Marek's overtime, so soon after Ellie Brothag's threat, leaves little doubt that 24 Urschalitz testified that he thought that there had been "a couple" when asked if there had been other EDM oil leaks by other employees. He also testified that the loss in each instance "was a few buckets." Urs- chalitz' experience with Respondent dated back only to June 1977. Terry McConnell and Raymond Norris were employed by Respondent for 4 years and 4 months and 6 years and 7 months, respectively Aside from their longer experience with Respondent, I noted that Terry McConnell and Raymond Norris seemed more certain of their assertions Urschalitz used imprecise terms, i.e., "a couple" and "a few buckets." which added to my impression of uncertainty. LYMAN STEEL COMPANY 305 Respondent used its economic leverage to punish Marek for becoming an AIW supporter. I find therefore that by depriving Marek of overtime on and after May 8, 1978, Respondent violated Section 8(a)(3) and (1) of the Act. There can be little question of Respondent's hostility toward Marek in early May because of his apparent change of heart toward AIW. Upon learning of Marek's alignment with AIW, Brothag warned him: "You'll be sorry for this." This warning, reflecting Brothag's and Respondent's intentions to punish Marek, violated Sec- tion 8(a)(l) of the Act. A further circumstance which supports the General Counsel's contention is the timing of the discharge only 10 days after Respondent discov- ered Marek's pro-AIW sentiment. Finally, uncontradict- ed testimony shows that, while other employees were re- sponsible for serious oil spills from Respondent's EDM machine, only Marek suffered discharge. This disparate treatment of Marek, together with its timing so close upon Respondent's threat of reprisal because he became an AIW advocate, provides strong support for the Gen- eral Counsel's contention that Marek suffered discharge for that reason. President Richard Green testified that he fired Marek because of the large overnight leakage of oil caused by Marek's negligence, plus warnings Marek had received for not being attentive to his EDM machine. Green called the leakage a catastrophe unique in Respondent's history. President Green also testified that Marek's union affiliation "was the last thing on [his] mind when [he] fired [Marek]. In light of the other evidence bearing upon the question of why Respondent discharged Marek, I have rejected this explanation. Although President Green termed Marek's oil leak to be a "catastrophe," there was no showing that it was worse than the worst of the spills testified to by wit- nesses Terry McConnell and Raymond Norris. Nor did Respondent produce any data comparing the production losses or losses experienced from other leaks to Marek's leak. In light of all of the credited testimony, including that of President Green showing that at most only a sus- pension was meted out as punishment for EDM oil leaks, the word "catastrophe" seems inadequate to rebut the evidence showing that Marek had suffered disparate pun- ishment. Granted that the warning of May 12 was for good cause, the earlier warnings were directed at thwart- ing Marek's discussions of AIW with leading AIW em- ployee activists. These earlier warnings which I have found to be violative of Section 8(a)(l) of the Act pro- vided further evidence of Respondent's general union animus, and of its unsuccessful attempts to persuade Marek to reject AIW. Nor am I persuaded that the news of Marek's active support for AIW played no role in Richard Green's deci- sion to fire Marek. The AIW mailgram announcing Marek's activities on behalf of AIW was addressed to President Green. When asked if he was aware at the time of his decision that Marek had joined AIW, Green answered, "Not really." Yet on the very day that revela- tion dropped in on President Green, his close associate, Vice President Brothag, learned of it and threatened Marek with reprisal because of his support for AIW. The record also shows that President Green was himself ac- tively hostile to AIW. His coercive interrogation of em- ployees regarding their union sentiment and his participa- tion in the unlawful constructive discharge of AIW ac- tivist Raymond Norris showed his willingness to engage in unfair labor practices to defeat union organizing ef- forts among his employees. In sum, I do not credit President Green's explanation for his decision to discharge Marek. In rejecting his testi- mony in this regard, I have noted his evasiveness and hostility while under the General Counsel's examination. I find, contrary to Respondent's position, that a prepon- derance of the evidence shows that President Green used the oil leak as a pretext for discharging Marek. I also find that the actual reason for Marek's discharge was his switching allegiance to AIW. I find, therefore, that by discharging Marek on May 18, 1978, Respondent violat- ed Section 8(a)(3) and (1) of the Act. 2. James Green (a) The Facts2 5 Respondent employed James Green as a burner from January 1974 until his discharge on August 7, 1978. On April 27, 1977, Green executed an AIW authorization card. In May 1977 Vice President Steven Green told James Green that it would be to the employees' advan- tage to support "the Teamsters Union." In the afternoon of that same day, Steven Green gave $100 to James Green. Vice President Green also told employee James Green that "once the Teamsters got in, the $200 would be coming." Respondent first imposed discipline on James Green on April 14, 1978. On that occasion, employee Green re- fused to comply with Vice President Brothag's direction to train employee Dan Jereb to use a machine. That same day, Respondent imposed a 1-day suspension on employee Green. Notwithstanding Vice President Green's advice, on May 1, 1978, James Green executed a second AIW au- thorization card. Also, AIW's mailgram of May 5, 1978, directed to Respondent, listed employee James E. Green as a member of AIW's organizing committee. As previously found, in its effort to interfere with AIW's organizing effort, in May 1978, Vice Presidents Brothag and Green and Supervisor Urschalitz instructed employee Marek not to converse with James Green. On July 25, 1978, employee Byomin went to employee James Green to borrow some devices known as "shoes" to be used for lifting metal plates. I find from David Byomin's testimony that, while he and Green were con- versing, Vice President Brothag approached him and said, "I don't want you talking to James Green ever. There are other shoes on the other side of the shop." On occasion, during May and June 1978, President Green asked employee Enoch how James Green was working. Presidents Green complained to Gray about "little arguments" he and employee Green had about work assignments. At one point, President Green said he 2 Except as noted, no substantial issues of fact were raised regarding the circumstances leading up to James Green's discharge. I have based my findings of fact on the testimony of James Green, Ronald Marek, and David Byomin LYMAN~ ST E COM AN 305 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was "sick and tired" of James Green, adding that he wanted to "get rid of him." 26 On May 15, 1978, President Richard Green pressed James Green to train employee Dan Jereb on the same machine upon which James was then working. James re- fused the request on the ground that that machine was not his usual work and he was not being paid the wages usually paid to the operator of that machine. Upon hear- ing employee Green's refusal, President Green said that he understood that James Green had been late again that morning. James Green denied that he had been late. Richard Green said, "Well I was told that you were, and I am going to give you a written reprimand for it." President Green also remarked that James Green had once before visited the National Labor Relations Board and the Civil Rights Commission. He told Green: "If you feel you have to go down again, go ahead." That same day, Respondent imposed a -day suspension upon employee James Green. On August 7, 1978, Supervisor John Urschalitz in- structed James Green to pull "drops," which are por- tions of heavy steel plates, to be worked on by other burners. However, James Green believed the drops were in precarious positions and might fall upon him. He de- cided that the assignment was "too much for one man to handle" and refused repeated requests to move the steel. After Urschalitz had failed to persuade employee Green to do the work, President Richard Green intervened. When James Green again refused, President Green told him that if he believed the assigned work was too dan- gerous that he should consider himself terminated. James Green left the plant. On the following day, Vice President Ellie Brothag in- vited James Green back to the plant to discuss his dis- charge with President Green. James Green returned that day and, in the discussion which ensued with President Green, he again refused the assignment of moving the steel plates. James Green asserted that he wished to keep his job, but that he would not move the steel plates be- cause of the danger he perceived. President Green then stated that James Green remained discharged. There was conflicting testimony regarding the danger to James Green. Ray Norris, a 6-year employee, ob- served the pile of steel plates which included the plate which Norris was to move. Norris testified that he con- sidered the situation to be "[vJery dangerous." In con- trast, employee Karl Golias testified, on cross-exmination by Respondent, that he did not consider the situation confronting James Green as being abnormally dangerous. Respondent's witnesses John Urschalitz and Willie Allen concurred in employee Golias' appraisal. A further cir- cumstance to be weighed was Urschalitz' uncontradicted and credited testimony that, when James Green stated that the assignment of pulling the plate was too danger- 26 President Green denied making these remarks. However, as Enoch Gray impressed me as the more candid witness of the two, I have relied on his testimony in finding that President Green made the quoted com- ments. Further, in light of James Green's refusal of two training assign- ments in April and May 1978, it was likely that President Green ex- pressed annoyance toward him in the context of remarks about employee Green's work. ous, Urschalitz' offered to assign another employee to assist Green.2 7 Yet, Green persisted in his refusal. (b) Analysis and conclusions The General Counsel contends that Respondent sus- pended James Green's employment for I day on May 15 and, later, on August 7, discharged him because he sup- ported AIW. In agreement with Respondent, I find that the record does not support the General Counsel's posi- tion. Despite my impression that Respondent was hostile toward James Green because he supported AIW, that in- gredient did not motivate Respondent on May 15 and August 7, 1978. Instead, I find employee Green provided Respondent with just cause to punish him on May 15 and again on August 7. Another factor weighing against the General Counsel's case is the Respondent's forbearance. In the first in- stance, Respondent did not seize on the May 10 refusal of an assignment to get rid of James Green. Instead, President Green only suspended him for 1 day. In the second incident, Respondent gave Green two opportuni- ties to change his mind. When he did not do so, Re- spondent terminated him. Respondent's conduct was not that of one anxious to be rid of an employee. Instead, Respondent made serious attempts to avoid terminating James Green. The record does not persuade me that Respondent re- sorted to pretext or singled James Green out for special treatment, either when it punished him for refusing to train one employee in May, or when it discharged him in August. There was no evidence that Respondent treated James Green differently from other employees quilty of misconduct similar to his. Nor was there any showing that Respondent departed from its normal practices in its treatment of James Green. In sum, I find that General Counsel has not shown by a preponderance of the evidence that employee James Green suffered a I day-suspension and was thereafter dis- charged because of his union activity. I shall therefore recommend that the allegations regarding James Green's suspension and termination be dismissed. 3. Enoch Gray Respondent employed Enoch Gray from 1972 until October 1978. As found above, in May 1977, Respond- ent's management attempted to enlist Gray's support for Local 436. Vice President Ellie Brothag urged Gray to vote for Local 436. On May 3, 1977, Gray signed a Local 436 authorization card. Vice President Steven Green offered $200 to Gray if he would agree to vote for Local 436. Soon after the offer, Vice President Green gave Gray $200 and promised to pay him $250 more after the election. It is Respondent's policy to withhold holiday pay from an employee who is absent either a day before a holiday or on the day after the holiday. In 1977, employee Enoch Gray was absent on the day after July 4. Never- 27 Urschalitzs detailed testimony presented a logical and reasonable se- quence of remarks. He also appeared to be giving his full recollection. LYMAN STEEL COMPANY 307 theless, Ellie Brothag came to him at the plant and paid him for July 4 and 5. In 1978, Gray supported AIW. On May 2, 1978, Gray signed an AIW authorization card. Respondent received AIW's mailgram 3 days later, listing Enoch Gray as a member of AIW's organizing committee. As found above, Respondent's first reaction to Enoch Gray's change of heart occurred on May 15, 1978, in a confrontation with Vice President Ellie Brothag. Brothag threatened Gray with punishment because he had become an AIW supporter. In less than 2 weeks, Gray gave Respondent an oppor- tunity to implement Brothag's warning. Later in May 1978, Enoch Gray asked President Green to permit him to take a vacation to begin on Friday, May 26, and extend 1 day beyond Memorial Day, which fell on Monday, May 29. President Green refused Enoch Gray's request and Respondent did not pay him for the Memori- al Day holiday. Thus, unlike 1977, when Respondent de- parted from its holiday policy in an effort to reward Gray for apparently adhering to Local 436, Respondent enforced its policy in 1978 after Gray had changed his allegiance to AIW. The explanation for this change in treatment was provided by the implied threat of reprisal which Brothag leveled at Gray on May 15, 1978. I find it likely that her warning reflected the union animus of President Green who had received the AIW mailgram listing Gray as an AIW activist, on or about May 5, 1978. I find, therefore, that Respondent, by withholding Gray's 1978 Memorial Day holiday pay, punished him in violation of Section 8(a)(3) and (1) of the Act. 4. Raymond Norris (a) The facts Respondent employed Raymond Norris as a welder from April 1972 until September 25, 1978. Raymond Norris was one of the employees who met with AIW Representative Nick Serraglio, along with several other employees, on April 26, 1977, to initiate AIW's organiz- ing drive at Respondent's plant. Raymond Norris signed an AIW authorization card on April 27, 1977. On or about April 28, 1977, Respondent received an AIW mail- gram announcing that Raymond Norris and other named employees were members of AIW's organizing commit- tee.2 8 In December 1977, or early January 1978, Vice Presi- dent Steven Green revealed Respondent's hostility toward Ray Norris. During that period, Vice President Green suggested to employee Marek ways and means of getting rid of Norris, including physical attacks and doing damage to Norris' automobile. There is no show- ing that Marek or his cousin, Charles Rankin, or any other employee carried out the suggested attacks on Ray Norris. 29 Ray Norris was active on behalf of AIW in 1978. In early May he solicited employee signatures on AIW au- thorization cards at the plant. He obtained signed cards a8 My findings regarding Norris' employment history and union activi- ty are based on his uncontradicted testimony and exhibits. *' My findings regarding Vice President Green's attempts to harass Norris are based on Ronald Marek's testimony. from employees Ronald Marek, James Green, Ulysses Butler, Anthony J. Colonil, Alan Cross, Ronnie Sum- mers, Gregory Shehee, Nick Bertovich, and Enoch Gray, Jr., at Respondent's plant. As found above, on or about May 3, 1978, employee Richard Hlad signed an AIW card and returned it to Ray Norris. Also, as found above, approximately 30 min- utes later, Vice President Brothag approached Hlad and instructed him to get his signed card back from Ray Norris. Brothag told Hlad that Norris "is no good" and that Norris "would get [Hlad] in trouble." She warned Hlad to "stay away from [Norris]." Brothag also direct- ed Hlad to sign a written statement accusing Norris of soliciting Hlad's signature on the authorization card "on Company time." As found above, in September 1978, Vice Presidents Steven Green and Ellie Brothag warned employee Hlad that, if AIW were successful in the coming representa- tion election, Respondent would terminate Ray Norris. On June 22, and again on June 24, 1978, Vice Presi- dent Steven Green asked employee David Byomin whether Ray Norris spoke to him about AIW during worktime. Shortly after this incident, Ray Norris' name again came up in a conversation between Ellie Brothag and employee Byomin regarding the union campaign. In the spring or summer of 1978 Ray Norris successfully so- licited Byomin's signature on an AIW authorization card. On July 20, 1978, Supervisor John Urschalitz issued a written reprimand to Ray Norris which declared: This is the fourth reprimand for failure to report that you would not be in to work. You will be advised what day you will have off, without pay. However, Respondent did not impose the -day layoff until 2 days before the scheduled Board-held election. On September 19, President Richard Green gave Norris written notification that his -day layoff without pay for the four reprimands would occur on September 20, 1978. Further insight into Respondent's attitude toward Ray Norris was provided on direct examination by the testi- mony of Vice President Brothag. When asked to testify regarding Norris' activities on behalf of AIW within the "last few weeks prior to the second election," Vice President Brothag testified as follows: I would frequent the shop and many days-and this would be almost everyday-I could see Ray Norris sneaking up around the place way on the other side of the shop. And I even mentioned it to him one time, I asked him where he was going, and he did say to the rest room. And I said, "Oh there is one back there." And then this would be every day. So finally I couldn't contain him to the welding department, so I asked Steve Green to go out and sit at a burning table to contain Ray Norris to his welding depart- ment. LYMAN STEEL COMPANY 307 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 18 and 19, Vice President Steven Green kept Norris under surveillance as instructed by Brothag. On or about September 9, 1978, President Richard Green asked Ray Norris to take a 2-week vacation which would have included September 22, 1978, the day of the Board-held election. However, Norris refused, stating that he planned to take his vacation in November and December 1978. On September 21 and 22, Supervisor Urschalitz in- structed Norris to use the bathroom in the back of the shop, closer to Norris' work station. Prior to these instructions Respondent kept that facility locked. The poor condition of the back bathroom was de- scribed by employee Norris. One of the two toilets was "stopped up," the second toilet had a broken seat, and the floor had an accumulation of unpleasant smelling water. Ray Norris was the AIW's observer at the Board-held election at the Respondent's plant on September 22, 1978. On the morning of the next working day, Monday, September 4, Norris arrived at work. When he went to the timeclock to punch in, he found his timecard missing. He noticed a tornup timecard on the floor. He discov- ered that it was his. Norris then went to the locker room, where he discovered that his work clothes, two pairs of workshoes, and his glasses were missing from his locker. He also noticed ashes from papers that had been burned in the bottom of his locker. Attached to the inside of his locker was a piece of a brown paper bag on which were inscribed in black obscene references to Norris, "AIW out of the way," "Norris on his way out" and "get out before you are carried out." At the bottom was a tombstone shaped figure on which was inscribed: "Ray Norris had no hair rest in peace 9-22-78 AIW." Norris immediately reported to Vice President Brothag. I find from Norris' testimony that he told Brothag that his locker had been broken into, that his time- card, work shoes, and glasses were gone and that he could not work without the shoes and glasses. Brothag responded: "I don't know anything about it." Norris said that he could not work without the missing items.30 Norris left the plant and went home. On Tuesday morning, September 25, Norris tele- phoned Vice President Brothag to set up a meeting with President Green. On Brothag's instruction, Norris ar- rived at the plant at 8:30 that same morning. After Norris told President Green of his misfortune, Green said, "I thought you came in here to talk to me about quitting." Norris denied that he intended to quit, adding that he could not work without his glasses or workshoes. President Green responded that he, Green, had no control over the other employees, their actions, or their feelings towards Norris. Norris insisted he could not work under such conditions. He added that he wanted to take an immediate 2-week vacation, during which he hoped that "things will cool off and I will come back to work and it will be alright." President Green rejected Norris' suggestion, stating: "No, you will take a week off in November and one in December." 3o Brothag did not dispute Norris' testimony. At this point, Vice President Steven Green arrived and joined the discussion. He began to criticize Norris' work performance. Vice President Green complained that Norris did not work "more than 40 to 50 percent of the time." He also charged Norris with poor workman- ship and accused him of excessively roaming around the plant. Norris turned to President Green and protested that he, President Green, had pressed Norris to take a 2-week vacation earlier in September, before the Board election. When Norris looked at his watch, Vice President Steven Green stated, "Well, I guess I'm boring you. Why don't you quit?" At this, Norris turned to Green and said, "If you can't straighten it out so I'm able to work, give me my vacation pay and I will quit." President Green gave Norris the requested vacation pay and Norris quit. (b) Analysis and conclusions The General Counsel contends that "based on the Re- spondent's knowledge, animus, and reaction to Norris' predicament, a finding of an unlawful constructive dis- charge in violation of Section 8(a)(1) and (3) of the Act is warranted." (G.C. br., p. 14.) Respondent argues that Norris' decision to terminate his employment "can in no way be said to be the fault of the Respondent or a viola- tion of Section 8(a)(3)." 3 1 I find merit in the General Counsel's contention. By refusing Raymond Norris' re- quest to take a 2-week vacation, Respondent sought to confront Norris with no alternative but to quit. Respond- ent's treatment of Norris' request was motivated by union animus and therefore was violative of Section 8(a)(3) and (1) of the Act. Ray Norris' union activity is amply shown. He partici- pated in the original organizing campaign beginning on April 26, 1977, when he met with an AIW representative and signed an AIW authorization card. On the following day, AIW notified President Richard Green that Ray- mond Norris was a member of AIW's organizing com- mittee. Thereafter, in 1978, Ray Norris continued to so- licit signatures of his fellow employees on AIW authori- zation cards. Finally, at the election on September 22, Ray Norris acted as AIW's observer. Also made plain was Respondent's knowledge of Norris' leading role in AIW's campaign and Respond- ent's hostility toward Norris because of his union activi- ty. Vice President Green expressed a strong desire to get rid of Norris and sought the assistance of employees to persuade Norris to leave. Vice President Green also threatened Norris' discharge if the Union lost the second election. Vice Presidents Green and Brothag interrogat- ed employee Byomin regarding Norris' AIW activity. Respondent endeavored to prevent Norris from helping AIW by keeping him under surveillance on September 18 and 19, 1978. With similar intent, Respondent belated- 31 In its brief (Resp. br., p. 25 fn. 5), Respondent moves for an order striking Ray Norris' testimony on direct examination and for dismissal of this portion of the complaint on the ground that I precluded Respond- ent's cross-examination of Ray Norris. Upon thoroughly reviewing the transcript, I could find no evidence that Respondent's counsel was pre- cluded from cross-examination of Ray Norris. Indeed, at page 381 of the transcript, I expressly invited Respondent's counsel to cross-examine the witness further if he wished. --- LYMAN STEEL COMPANY 309 ly imposed suspension on Norris but 2 days before the election and 2 months after the Respondent had repri- manded him and warned that such punishment was in the offing. Respondent seemed to welcome Norris' misfortune as an opportunity to get rid of him. Respondent's reaction to Norris' report, that he had lost both pairs of work- shoes and his glasses and could not work, was less than sympathetic. Ellie Brothag upon hearing of Norris' plight said she knew nothing about it and was content to watch a 6-year employee leave the plant. When Norris appeared at the plant on September 25, President Green revealed Respondent's attitude when he stated in essence that he thought Norris was coming to notify Respondent that he was quitting. Later that same morning, Vice President Steven Green gave voice to a similar sentiment when he suggested that Norris quit his job. The best opportunity to get rid of Norris occurred when Norris complained that he could not work because he had lost his glasses and his work-shoes. At that point, President Green declared that he had no control over Norris' fellow employees or their actions toward Norris. This suggested that Respondent could do nothing to pre- vent recurrence of similar losses of property or other employee actions against Norris himself. When Norris expressed apprehension about working in this hostile at- mosphere and asked for a 2-week vacation to let things "cool off," President Green refused. Thus was Norris faced with a choice of either going back to work in the dangerous environment or quitting his employment. At this point, Vice President Green added to the hostile at- mosphere surrounding Norris by criticizing his work and his performance in general and then suggesting "why don't you quit?" When Norris appealed to President Green saying, "If you can't straighten it out so I am able to work, give me my vacation pay and I will quit," President Green jumped at this opportunity and gave him his vacation pay. Against the backdrop of Respond- ent's stated hostility toward Norris because of his AIW activity, I find that Respondent was glad to exploit Norris' misfortune as an opportunity to get rid of a trou- blesome AIW supporter. Respondent urged rejection of the General Counsel's contention on the ground that Respondent bears no re- sponsibility for Norris' decision to quit. In support of its position, Respondent explained that Norris had decided to quit if AIW lost the election and carried out his deci- sion when Respondent rejected his vacation request. I find no merit in this explanation. That Norris may have expressed to fellow employees an intent to quit if AIW lost the September 22 election does not assist Respondent's defense. For, on September 25, when President Green asked him if he was coming to the plant to discuss quitting, Norris replied, "No, but I can't work." Norris went on to complain of the loss of his shoes and glasses, which losses made it impossible for him to work. For his part, President Green did not offer Norris any time to obtain replacements. Nor did Green otherwise encourage Norris to return to work. Instead, President Green held himself and Respondent aloof from Norris' plight. President Green added to Norris' burden by suggesting that Norris was in constant danger from his fellow employees and that Respondent could do nothing to protect him. Not until he found himself con- fronted with an immediate return to the harsh danger raised by President Green's remarks did Norris talk of quitting. Norris said he would return to work if Presi- dent Green would do something to enable him to work. Instead of attempting to allay Norris' fears, Green handed him his vacation pay. Thus, far from showing that Norris intended to quit, the exchange between Presi- dent Green and Norris on September 25 showed beyond question that Norris wanted to return to his job and that Respondent did not want him to do so. Also wanting in merit is Respondent's attempted expla- nation of its refusal to grant Norris' request for a 2-week vacation. Respondent's asserted ground for refusing that request was that Norris was its only welder and could not be spared. Initially this explanation suffers from the infirmity of being an afterthought, raised for the first time before me. For there is no showing that either President Richard Green or Vice President Steven Green offered this explanation to Norris on September 25, when he asked for an immediate vacation. President Green's attempt to persuade Norris to take a 2-week vacation, beginning approximately 16 days prior to Norris' request, casts further suspicion upon the claimed necessity for Norris' continued presence at the plant during the 2 weeks following September 25. Aside from President Green's testimony that Norris could not be spared, there was no showing that as of September 25, 1978, Respondent's expected workload for the period covered by Norris' request would have been any greater than it had been during the period suggested by Presi- dent Green approximately 16 days earlier. In any event, the fatal blow to Respondent's defense was that, after President Green denied his vacation re- quest, Norris in effect withdrew it and stated his condi- tional willingness to return to work. Norris was willing to forego an immediate vacation if Respondent would assure him a safe work environment. However, President Green uttered not a word of hope for Norris. Thus Norris quit, not only because Green denied his vacation request, but also because of the implicit rejection of his plea for security at his work station. In sum, I find from the record as a whole that Re- spondent constructively discharged Norris on September 25, 1978, in reprisal for his activities on behalf of AIW. Accordingly, I find that Respondent thereby violated Section 8(a)(3) and (1) of the Act. D. Respondent's Refusal To Bargain With AIW On or about April 30, 1977, Respondent received a letter from AIW, dated April 27, 1977, demanding bar- gaining and recognition. In its letter, AIW claimed ma- jority status in a unit consisting of Respondent's produc- tion and maintenance employees. Respondent has never agreed to recognize AIW as the bargaining representa- tive of its production and maintenance employees. As of April 27, 1977, AIW enjoyed the support of a majority of Respondent's 34 production and maintenance employ- ees. On April 28, 1977, AIW filed its representation peti- tion in Case 8-RC-10916, seeking an election in the fol- LYMAN STEEL COMPANY 309 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lowing unit of employees at Respondent's Warrensville Heights, Ohio, facility: All production and maintenance employees and truck drivers excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. The parties have agreed that this unit is appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. Respondent contends that a bargaining order is unwar- ranted on the following grounds: (a) AIW no longer rep- resents a majority of the unit employees; (b) the miscon- duct of AIW's supporters renders AIW unworthy of a bargaining order; (c) Respondent's conduct in 1978 does not preclude the holding of a third election; (d) AIW has waived whatever entitlement it had to a bargaining order; and (e) Respondent could not properly recognize and bargain with AIW. For the reasons set out below, I find no merit in Respondent's contentions and shall rec- ommend imposition of a bargaining order. Turning to the first ground urged by Respondent, I note that in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 610 (1969), the Court reaffirmed, without qualifica- tion, the settled principle that a bargaining order is not rendered inappropriate by the circumstance that a union has lost, or may have lost, its majority status between the time of the commission of the employer's unfair labor practices and the Board's decision. The Court stated (395 U.S. at 610-611): Remaining before us is the propriety of a bargain- ing order as a remedy for a §8(a)(5) refusal to bar- gain where an employer has committed independent unfair labor practices which have made the holding of a fair election unlikely or which have in fact un- dermined a union's majority and caused an election to be set aside. We have long held that the Board is not limited to a cease-and-desist order in such cases, but has the authority to issue a bargaining order without first requiring the union to show that it has been able to maintain its majority status. See N.L.R.B. v. Katz, 369 U.S. 736, 748, fn. 16 (1962); N.L.R.B. v. P. Lorillard Co., 314 U.S. 512 (1942). And we have held that the Board has the same au- thority even where it is clear that the union, which once had possession of cards from a majority of the employees, represents only a minority when the bargaining order is entered. Franks Bros. Co. v. N.L.R.B., 321 U.S. 702 (1944). We see no reason now to withdraw this authority from the Board. If the Board could enter only a cease-and-desist order and direct an election or a rerun, it would in effect be rewarding the employer and allowing him to "profit from [his] own wrongful refusal to bargain," Franks Bros., supra at 704, while at the same time severely curtailing the employees' right freely to de- termine whether they desire a representative. The employer could continue to delay or disrupt the election processes and put off indefinitely his obliga- tion to bargain; and any election held under these circumstances would not be likely to demonstrate the employees' true, undistorted desires. 3 2 The Court, in Gissel, also rejected Respondent's sug- gestion that to impose a bargaining order on employees who may not desire AIW is an unnecessarily harsh remedy that needlessly prejudices employees' Section 7 rights. (395 U.S. at 612.) The Court stated: Such an argument ignores that a bargaining order is designed as much to remedy past election damage as it is to deter future misconduct. If an employer has succeeded in undermining a union's strength and destroying the laboratory conditions necessary for a fair election, he may see no need to violate a cease-and-desist order by further unlawful activity. The damage will have been done, and perhaps the only fair way to effectuate the employee rights is to re-establish the conditions as they existed before the employer's unlawful campaign. 3 3 Thus, for the reasons set forth in Gissel, supra, neither employee turnover nor the lapse of time involved be- tween AIW's acquisition of majority status on April 27 and the entry by the Board of an order to remedy Re- spondent's unlawful conduct would bar an otherwise ap- propriate bargaining order. The incidents of misconduct, including obscenities, a threat to Vice President Brothag's daughter, an abusive letter addressed to Vice President Brothag, and other as- serted incidents of apparent employee misconduct are not to be condoned. However, I am not persuaded that such incidents were sufficient to foreclose entry of a bar- gaining order to remedy Respondent's unfair labor prac- tices. There was no showing that AIW was responsible for or condoned any of the incidents of misconduct set forth in the record. Respondent also claim that Local 436's attainment of majority status soon after AIW had made its claim ex- cused Respondent from recognizing AIW. However, as there is no showing that Local 436 ever achieved an un- tainted majority among its production and maintenance employees, Respondent's claim is unsupported. Not until May 14, 1977, did Local 436 obtain signed authorization cards from 16 unit employees. Assuming that there were 34 employees in the unit on that date, Local 436 did not have majority support.3 4 Between 3Z The Court specifically noted that an employer's unlawful conduct which causes an election to be set aside does more han simply delay his bargaining obligation. The employer "can also affect the outcome of a rerun election by delaying tactics, for figures show that the longer the time between a tainted election and a rerun, the lesser are the union's chances of reversing the outcome of the first election." 395 U.S. at 611, fn. 30. "3 The Court added (id. at 613): "There is, after all, nothing permanent in a bargaining order, and if, after the effects of the employer's acts have worn off, the employees clearly desire to disavow the union, they can do so by filing a representation petition." 34 At the hearing, I did not receive a Local 436 authorization card signed by Gregory J. Sheehy. Local 436 offered Sheehy's card and re- quested a stipulation that the card was signed on May 10, 1977. Howev- er, the General Counsel refused to enter into a stipulation on the ground that the card signed by Sheehy gave as the date of signature 4-10-77, a time, according to the General Counsel, when Sheehy was not Respond- ent's employee. Continued - --- --- - LYMAN STEEL COMPANY 311 January 27 and March 16, 1978, Local 436 obtained six additional cards. Thus, as of March 16, 1978, Local 436 had 22 cards. The parties stipulated that there were 30 employees in the production and maintenance unit as of May 5, 1978. Thus, assuming that the same number ob- tained on March 16, 1978, Local 436 had a sufficient number of cards to constitute a majority. However, that majority was mortally tainted by Respondent in 1977. As found above, in May 1977, Respondent's manage- ment actively assisted Local 436's organizing campaign. During that month, Vice President Richard Green of- fered to pay employee Daniel Sheehan for signing a Local 436 authorization card. Also, Vice President Green solicited employee Robert Burnett's signature on a Local 436 authorization card. Vice President Ellie Brothag evidenced Respondent's favorable attitude toward Local 436 when she told employee Verbic that if he signed a card for Local 436, "the Company would take care of [him]." Verbic followed Brothag's sugges- tion. Vice President Green told employee Verbic to punch out an hour early and to go to a Local 436 meet- ing. The next day at Vice President Green's invitation, Verbic appeared in his office, reported that he attended the meeting, and received $4 in cash. Also in May 1977, Vice President Green solicited employee James Green's support for the Teamsters and paid him $100 to achieve that end. At or about the same time, Vice President Green told employee Enoch Gray that he would give him $200 to vote for Local 436 and another $250 after the election. In early May, Brothag encouraged Enoch Gray to sign a Local 436 card. Gray signed a Local 436 athorization card on May 3, 1977. John Verbic signed a Local 436 authorization on May 4, 1977. Daniel Sheehan signed a Local 436 authorization card on May 13, 1977. Finally, in September 1978, President Richard Green dis- closed in talks to his employees that in 1977 Respond- ent's management had asked employees to support Local 436. Considering Respondent's considerable, unconcealed assistance to Local 436's campaign, I find that the prof- fered authorization cards are so tainted as to remove them as the basis for claiming majority support. See Pro- fessional Ambulance Service, Inc., 232 NLRB 1141, 1153 (1977). Citing C. E. Collins, et al., d/b/a Collins Mining Co., 177 NLRB 221 (1969), as authority, Respondent argues that, by not alleging violation of Section 8(a)(5) in the initial charges in this case and by its agreeing to the second election, AIW waived any entitlement it might have had to a finding that Respondent violated Section 8(a)(5) and (1) of the Act. I reject this unfounded conten- tion. The cited authority has no application here. In Collins, the Board refused to find a violation of Section 8(a)(5) Although received in evidence, Local 436's authorization card execut- ed by Rufus Gray bears no date. Nor is there any testimony showing when Gray signed the card. I have not counted Gray's card in determin- ing when Local 436 obtained cards from a majority of the unit employ- ees. I have not counted an authorization card apparently signed by employ- ee Terry L Smith which bears no date. I also noted that employee Ronnie Summers signed one Local 436 authorization card on May 12. 1977, and a second Local 436 card on the following day and () of the Act where it found no showing that a ma- jority of the employer's employees supported the charg- ing union's demand for recognition. Here, at the time AIW first demanded recognition and bargaining, it en- joyed the support of a majority of Respondent's produc- tion and maintenance employees. Thereafter, AIW did nothing to waive its entitlement to recognition as the bargaining representative of Respondent's production and maintenance employees. The impact of Respondent's unfair labor practices upon its 30 to 35 production and maintenance employees was so pervasive as to deplete AIW's strength and make it highly unlikely that the Board could conduct a fair election among Respondent's employees. It is likely that word of Respondent's many unfair labor practices, in- cluding the constructive discharge of leading AIW advo- cate Ray Norris, the discrimination against Enoch Gray because of his activity on behalf of AIW, and the dis- crimination against employee Ronald Marek also because of his support of AIW, has reached many of the employ- ees. These manifestations of animus toward AIW would probably intimidate many, if not all, of the unit employ- ees. Therefore, I find that AIW's authorization cards are the most reliable indication of the desires of the unit em- ployees concerning representation. AIW obtained signed authorization cards from a ma- jority of the employees in the appropriate unit by April 27, 1977, the date it demanded recognition, and was enti- tled to such recognition on and after that date. Instead of granting recognition, beginning in late November 1977, Respondent engaged in a succession of unfair labor prac- tices beginning with attempts to induce employees to forcefully persuade AIW supporters to quit Respondent's employ and ending with the constructive discharge of AIW activist Norris on September 25, 1978. I find there- fore that the Respondent violated Section 8(a)(5) of the Act by its refusal to recognize AIW on and after April 24, 1978, which is the beginning of the 6-month period of limitations provided by Section 10(b) of the Act. Chro- malloy Mining and Minerals, Alaska Division, 238 NLRB 688 fn. 3 (1978); Howard Manufacturing Company, Inc., 180 NLRB 220, 222 (1969). CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. AIW and Local No. 436, respectively, are labor or- ganizations within the meaning of Section 2(5) of the Act. 3. Respondent interfered with, coerced, and restrained its employees in the exercise of rights guaranteed by Sec- tion 7 of the Act, thereby committing unfair labor prac- tices prohibited by Section 8(a)(1) of the Act by: (a) Offering to pay and paying employees to threaten and harass employees who supported AIW. (b) Interrogating employees concerning their union membership, activities, sympathies, and desires and the union membership, activities, sympathies, and desires of fellow employees, or of prospective employees. (c) Threatening employees with plant closure, layoff, discharge, stricter discipline, or other reprisals if they LYMAN STEEL COMPANY 311 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supported AIW, associated with known AIW supporters, or if AIW became their bargaining representative. (d) Giving employees the impression that their union activities were under Respondent's surveillance by con- fronting employees with knowledge that they had signed authorization cards in favor of AIW. (e) Promulgating and maintaining unlawful no-solicita- tion rules. (f) Instructing employees not to discuss their union ac- tivities or their union sentiments among themselves. (g) Ordering employees to request the return of their authorization cards from AIW. (h) Directing employees to sign statements stating that employees soliciting on behalf of AIW had done so during working time. (i) Giving employees the impression that their union activities including voting in a Board-held election were under Respondent's surveillance by telling employees that they knew how employees voted in the Board's secret-ballot election. (j) Warning employees that employees who supported AIW would be terminated. (k) Maintaining surveillance of employees during working hours to prevent employees from engaging in discussions regarding AIW. (1) Threatening that if employees engaged in an eco- nomic strike, Respondent would replace them perma- nently without hope of reinstatement. (m) Promising an employee a wage increase if AIW's organizing campaign failed. 4. Respondent assisted a labor organization in violation of Section 8(a)(2) and (1) of the Act by promising an em- ployee a cash payment if he would support Local 436. 5. Respondent violated Section 8(a)(3) and (1) of the Act by discontinuing Ronald Marek's overtime and dis- charging him, by refusing to pay employee Enoch Gray his holiday pay for Memorial Day 1978, and by con- structively terminating employee Ray Norris on Septem- ber 25, 1978. 6. Since April 27, 1977, a majority of the employees in the following appropriate unit employed at Respondent's Warrensville Heights, Ohio, plant have designated AIW as their exclusive representative in that unit for purposes of collective bargaining: All production and maintenance employees and truck drivers excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. 7. Respondent, by refusing on and since April 24, 1978, to recognize and bargain with AIW as the repre- sentative of its employees in the appropriate unit, has re- fused and is refusing to bargain in good faith and thus has committed, and is committing, unfair labor practices prohibited by Section 8(a)(5) and (1) of the Act. 8. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 9. Respondent has not committed any unfair labor practices except as noted above. IV. REPORT ON OBJECTIONS AFFECTING THE RESULTS OF THE SECOND ELECTION IN CASE 8-RC-10916 Having found that during the critical period between the date of the first election, i.e., May 24, 1977, and the date of the rerun election, September 22, 1978 (The Singer Company, 161 NLRB 956 (1966); Goodyear Tire and Rubber Company, 138 NLRB 453 (1963)), Respond- ent violated Section 8(a)(l), (2), and (3) of the Act, it fol- lows that the election must be set aside. Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786-87 (1962); Leas & McVitty, Incorporated, 155 NLRB 389, 390-391 (1965). Accordingly, I shall recommend that the election held on September 22, 1978, in Case 8-RC-10916, be set aside and that the petition be dismissed. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices, I shall recommend that it cease and desist therefrom and take affirmative action necessary to effectuate the purposes of the Act. I shall further recommend that Respondent be ordered to offer employees Ronald Marek and Raymond Norris im- mediate and full reinstatement to their former positions or, if those positions are not available, to substantially equivalent positions without prejudice to their entitle- ment to overtime work, their seniority, or their benefits and privileges. I shall also recommend that Respondent be ordered to make employees Enoch Gray, Ronald Marek, and Raymond Norris whole for any losses of pay they may have suffered, by payment to each of them the sums they would have earned but for the discrimination against them. Such losses shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), plus interest as set forth in Isis Plumb- ing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). I shall also rec- ommend that Respondent be required to preserve and make available to Board agents, upon request, all perti- nent records and data necessary to analyze and deter- mine whatever backpay may be due. Having found that by April 27, 1977, a majority of Re- spondent's employees in the appropriate bargaining unit had authorized AIW to represent them in collective bar- gaining with the Respondent, and having found that Re- spondent committed serious and extensive unfair labor practices so that it now seems unlikely, if not impossible, that a fair election under Board auspices could be held, I shall recommend that Respondent be required to recog- nize and bargain with AIW as the representative of those employees, effective the earliest date permitted under Section 10(b) of the Act, which is April 24, 1978. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 614 (1969); Chronalloy Mining and Mineral, Alaska Division, 238 NLRB 688, fn. 3 (1978); Howard Manufacturing Company, Inc., 180 NLRB 220, 222 (1969). Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: LYMAN STEEL COMPANY 313 ORDER3 5 The Respondent, Nyman Steel Company, Warrensville Heights, Ohio, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Interrogating employees concerning their member- ship in, sentiment toward, and activities on behalf of In- ternational Union, Allied Industrial Workers of America, AFL-CIO, referred to herein as AIW, or any other labor organization. (b) Interrogating employees concerning the union membership, union sentiment, or activity of fellow em- ployees, or of prospective employees, on behalf of AIW or any other labor organization. (c) Engaging in surveillance of employees during working hours at the plant for the purpose of interfering with, restraining, and otherwise discouraging their dis- cussion of matters pertaining to AIW or any other labor organization. (d) Giving employees the impression that the signing of authorization cards for AIW or for any other labor organization or their voting for AIW or any other labor organization at a Board-held representation election or any other union activity is known to Respondent and being watched by Respondent. (e) Threatening employees with plant closure, layoff, stricter discipline, or other reprisals because of their sup- port for AIW or any other labor organization. (f) Offering to and paying employees money to threat- en or harass fellow employees because they support AIW or any other labor organization. (g) Promulgating, maintaining, giving effect to, or en- forcing an overly broad no-solicitation rule which tends to inhibit employees from soliciting for AIW or any other labor organization on Respondent's premises during their nonworking time. (h) Promising employees the payment of money to en- courage them to support Excavating, Building Material, Construction Drivers, Race Track Employees, Manufac- turing, Processing, Assembling and Installer Employees, Local Union No. 436 of Lake, Geauga, Cuyahoga County and Vicinity, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, referred to herein as Local 436, or any other labor organization. (i) Threatening employees with loss of employment or other reprisals because they associate with employees who support AIW or any other labor organization. (j) Coercing employees by asking them to sign state- ments that they had received union authorization cards during worktime from an employee who supports AIW or any other labor organization, or by requiring them to request return of their signed authorization cards from AIW or any other labor organization. a3 In the event no exceptions are filed as provided by Sec. 112.40 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted b the Board elld become its findings, conclusions, and Order, and all obje-tions thrcio shall be deemed waived for all purposes. (k) Threatening that, if employees engaged in an eco- nomic strike, Respondent would replace them perma- nently, without hope of reinstatement. (I) Threatening employees with plant closure, dis- charge, stricter discipline, layoff, or other reprisals if the AIW or any other organization organized Respondent's employees. (m) Promising employees cash payment if they support Local 436 or any other labor organization in a Board- held election. (n) Promising wage increases to employees if AIW or any other labor organization failed to organize Respond- ent's employees. (o) Instructing employees not to discuss their union ac- tivities or union sentiments among themselves at the plant. (p) Withholding overtime hours, discharging, with- holding holiday pay, constructively discharging, or oth- erwise discriminating against employees because they support or have supported AIW or any other labor orga- nization. (q) Refusing to recognize or bargain collectively with AIW as the exclusive bargaining representative of Re- spondent's employees at its Warrensville Heights, Ohio, plant in the following appropriate bargaining unit: All production and maintenance employees and truck drivers, excluding all office clerical employ- ees, professional employees, guards and supervisors as defined in the Act. (r) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with AIW as the sole and exclusive collective-bargaining representa- tive of its employees in the above-described unit with re- spect to rates of pay, hours of employment, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Rescind the current no-solicitation rules set forth, respectively, in Respondent's employee handbook and in Respondent's revised work rules appended to the em- ployee handbook. (c) Offer Ronald Marek and Raymond Norris immedi- ate and full reinstatement to their respective former posi- tions of employment, dismissing, if necessary, anyone who may have been hired or assigned to perform their functions or, if their former respective positions do not exist, to substantially equivalent positions without preju- dice to their seniority or other rights or privileges. (d) Make whole employees Ronald Marek, Enoch Gray, and Raymond Norris for any losses of pay each may have suffered as a result of the discrimination each has suffered in the manner set forth above in the section entitled "The Remedy." (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- LYMAN STEEL COMPANY 313 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ords necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at Respondent's Warrensville Heights, Ohio, plant copies of the attached notice marked "Appen- dix."36 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (g) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the election con- ducted on September 22, 1978, in Case No. 8-RC-10916 be set aside and that the petition in the case be, and it hereby is, dismissed. IT IS ALSO FURTHER RECOMMENDED that unfair labor practices alleged in the complaint but not specifically found herein are hereby dismissed. 3 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives of their own choice To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT interrogate employees concerning their membership in, sentiments toward, or activity for International Union, Allied Industrial Workers of America, AFL-CIO (referred to herein as AIW), or any other labor organization. WE WILL NOT interrogate employees regarding the sentiments of prospective employees or other employees toward, or the activities of prospective employees or other employees on behalf of, AIW. WE WILL NOT threaten employees with dis- charge, plant closure, layoff, stricter discipline, or other reprisals because they support AIW, or any other labor organization, or associate with other employees who support AIW, or any other labor organization, or because AIW or any other labor organization organizes our employees. WE WILL NOT engage in surveillance of our em- ployees during their working time at the plant for purposes of discouraging them from discussing AIW, or any other labor organization. WE WILL NOT threaten that we will permanently replace employees who engage in a strike without any hope of their reinstatement. WE WILL NOT offer employees money to harass or coerce employees who support AIW, or any other labor organization. WE WILL NOT give employees the impression that their union activities are under our surveillance by confronting employees with knowledge that they have signed authorization cards in favor of AIW, or any other labor organization, or by telling them that we know how they voted in a secret-ballot election conducted by the National Labor Relations Board. WE WILL NOT instruct employees not to discuss their union activities or union sentiments among themselves at the plant. WE WILL NOT order employees to request the return of their signed authorization cards from AIW, or any other labor organization. WE WILL NOT offer wage increases to persuade employees to withhold their support from AIW, or any other labor organization. WE WILL NOT offer employees money or other inducements to support Excavating, Building Mate- rial, Construction Drivers, Race Track Employees, Manufacturing, Processing, Assembling and Install- er Employees, Local Union #436 of Lake, Geauga, Cuyahoga County and Vicinity Affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America (re- ferred to herein as Local 436), or any other labor organization. WE WILL NOT discourage membership in AIW or in any other labor organization by discharging em- ployees, constructively discharging employees, de- priving employees of overtime work, holiday pay, or other benefits, or by any other discrimination in regard to their hire or tenure or conditions of em- ployment. WE WILL NOT promulgate, maintain, or enforce any rule or regulation which prohibits our employ- ees from soliciting on behalf of any labor organiza- tion in work areas of our facility during their non- worktime. WE WILL NOT refuse to recognize and bargain in good faith with AIW in an appropriate bargaining unit. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in LYMAN STEEL COMPANY 315 the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL offer Ronald Marek and Raymond Norris immediate reinstatement to their former posi- tions, dismissing, if necessary, anyone who may have been hired or assigned to perform the work which they performed prior to their discharge, or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of our discrimination, including Ronald Marek's lost overtime, together with interest on those amounts. WE WILL make Enoch Gray whole by paying to him his holiday pay for Memorial Day 1978, togeth- er with interest on that amount. WE WILL immediately recognize and bargain in good faith with AIW, as the exclusive collective- bargaining representative of our employees in the bargaining unit described below. Such recognition and bargaining should be retroactive to April 24, 1978. If we reach an understanding, we will reduce such agreement to writing and will sign and honor it. The bargaining unit is: All production and maintenance employees and truck drivers, at our Warrensville Heights, Ohio, plant, excluding all office clerical employ- ees, professional employees, guards and supervi- sors and defined in the Act. LYMAN STEEL COMPANY