Ohio Ferro-Alloys Corp.

OHIO FERRO-ALLOYS CORP. 577 Ohio Ferro-Alloys Corporation and Local 2626, Unit- ed Steelworkers of America, AFL-CIO and Ronald W. Schiesz. Cases 19-CA-5907 and 19-CA-5980 March 12, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 16, 1973, Administrative Law Judge Herman Corenman issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions together with a brief in support of its exceptions to the Administrative Law Judge's Deci- sion; General Counsel filed exceptions and a brief in support thereof, plus a reply brief to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Administrative Law Judge's Decision in light of the exceptions and briefs and has decided to affirm the Administrative Law Judge's rulings, findings,' and conclusions as modified herein,2 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Ohio Ferro-Alloys Corporation, Tacoma, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951) We have carefully examined the record and find no basis for reversing his findings. 2 We agree with the Respondent's contention that two of the 8(axl) violations found by the Administrative Law Judge involved conduct which occurred outside the limitations period prescribed by Sec 10(b) of the Act. Specifically, these occurrences are: (1) Plant Manager Yadeskie's statement to employee Hicks in November 1971, wherein the former told Hicks that "he was not going to put up with anymore of this and he would get me" [referring to Hicks' efforts to enforce the bargaining agreement ]; and (2) at a meeting of pickets in the plant parkmg lot during the strike in October 1971, Plant Manager Yadeskie's statement to Shop Steward 0 Crossland in the presence of other employees "that we won't be led by a bunch of lost sheep-we know who they are and we will definitely take care of them." Accordingly we dismiss these allegations of the complaint. Further, the Administrative Law Judge concluded that the Respondent violated Sec 8(a)(1) when Supervisor Zampardo told employee Crossland to be careful because Plant Manager Yadeskie was watching him and others. This conversation occurred right after Yadeskie had "cussed" Crossland for recklessly operating a forklift in the plant . Crossland's conversation with Zampardo was initiated by the former and there is no dispute concerning Crossland's handling of the forklift . Also, there is no specific portion of the complaint alleging this conduct as a violation . Considering these circum- stances, we find merit in Respondent's exception to this finding and we hereby overrule the Administrative Law Judge with respect to his finding. We agree with the Administrative Law Judge that, as to the discharge of employee Ronald D. Schiesz, this is a proper case for deferral to the arbitrator's decision, the requirements of Spielberg Mfg. Co., 112 NLRB 1080, having been met. However, we do not adopt the Administrative Law Judge's characterization of the award as a "compromise" award. Further, we disavow his rationale suggesting that we would defer to such an award. It is clear from the arbitrator's decision that the arbitrator did consider whether Schiesz was discharged for his union activities and that the arbitrator found that Respondent acted improperly in discharging Schiesz. However, the arbitrator also found that Schiesz falsified his employment application by stating therein that he had never been arrested or served a jail sentence when he in fact had a history of arrests and had been convicted and sentenced to San Quentin State Penitentiary for a term of 5 years to life Taking this factor into consideration, the arbitrator decided to order reinstatement but not award backpay. Where an employee has obtained his job through the use of a false statement in his application, it is not repugnant to the purposes and policies of the Act to order less than reinstatement with backpay. See, e.g, SouthernAirwayCompany, 124 NLRB 749; W Kelly Gregory, Inc, 207 NLRB No. 95. DECISION STATEMENT OF THE CASE HERMAN CORENMAN, Administrative Law Judge: This case was heard at Tacoma, Washington, on January 16 and 17, 1973, on a consolidated complaint issued September 8, 1972. The consolidated complaint was issued pursuant to charges filed on June 23, 1972, by Local 2626 United Steel Workers of America, AFL-CIO, herein called the Union, and on August 4, 1972, by Ronald W. Schiesz, an individual. The consolidated complaint alleges that Ohio Ferro-Alloys Corporation, herein called the Respondent, discriminatonly discharged Ronald W. Schiesz in violation of Section 8(a)(1) and (3) of the Act and by its supervisors uttered threats of reprisal against employees in violation of Section 8(a)(1) of the Act. The Respondent's answer admits that it discharged Ronald W. Schiesz, but denies that it in any manner violated the Act. The Respondent pleads that the Board should defer to the decision of the arbitrator provided for under the terms of the collective- bargaining agreement between the Respondent and the Union. All parties appeared at the hearing and were afforded full opportunity to be heard, to present oral and written evidence, and to examine and cross-examine witnesses. The parties waived oral arguments, but the General Counsel and the Respondent have submitted briefs which have been carefully considered. Upon the entire record,' my observation of the demean- or of the witnesses, and the briefs submitted by the parties, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The complaint alleges, the Respondent admits, and I find that the Respondent is an Ohio corporation having an i The General Counsel's unopposed motion to correct transcript which is attached to his brief is granted. 209 NLRB No. 77 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office and place of business in Tacoma, Washington, where it is engaged in the production of alloys for the aluminum and steel industries. During the calendar year 1971, Respondent made purchases of supplies and materials valued in excess of $50,000 directly from points outside the State of Washington. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The pleadings establish, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The Respondent operates three manufacturing plants in Ohio and one at Tacoma, Washington. The United Steel Workers of America have for many years represented the production and maintenance employees in all of the Respondent's plants. The alleged unfair labor practices involved only the Tacoma plant which is represented by Local 2626, herein called the Union. In keeping with past practice, in the summer and fall of 1971, the Respondent and the United Steelworkers negotiated a multiplant collective-bargaining agreement covering all four plants and the local unions at each plant negotiated separately on local problems peculiar to each plant. The new agreement was made effective October 1, 1971, to October 1, 1974. The interpretation of article 10 of the new collective- bargaining agreement with respect to "substitute work" became a source of bitter controversy between manage- ment of the Tacoma plant and the Union's grievance committee at the Tacoma plant. The union committeemen were advising the plant employees to refuse to perform jobs under their interpretation of article 10 of the agreement and, instead, go home and still receive pay for the remainder of the shift .2 B. Threats of Reprisal Clifford A. Hicks was a member of the union grievance committee at the Tacoma plant, from the labor and 2 Apparently, the union committeemen were relying on the following two paragraphs of paragraph 10 of the agreement. 3 Should Management conclude to reactivate the employees terminated job, the displaced employee can refuse all work and shall he paid for the remainder of the shift 4 Should Management conclude to activate an employee's job which was not available at the beginning of the shift, the displaced employees will be required to return to his job. Should his job be terminated during the remaining shift, he may refuse substitute work and shall be paid for the remainder of the shift. The management people were requesting the employees to remain at work and perform the assigned job and to file a grievance if they protested assignment of work 9 Yadeskie testified that he remembered this occasion and recalls telling Hicks again as he had told him on other occasions that we did not want anyone coercing or forcing or harassing or pressuring the people into doing shipping department, where most of the rancor prevailed in connection with the interpretation of article 10 of the collective-bargaining agreement. Hicks testified credibly that, on one occasion in November 1971, he attended a meeting with about 30 other people from the labor and shipping department which was called by Plant Manager Steve Yadeskie in the plant's lunchroom. At this meeting, Yadeskie discussed article 10 and during the course of the discussion accused Hicks of threatening and coercing the men to comply with Hicks' interpretation of article 10. Hicks retorted that he was enforcing the contract, that he wasn't coercing anybody. Yadeskie replied, according to Hicks credible testimony, that he "was not going to put up with anymore of this and he would get me." I find that this remark by Yadeskie to Hicks violated Section 8(a)(1) of the Act.3 Hicks further testified credibly that on an occasion in March 1972, when he refused substitute work in reliance on his right under article 10 of the agreement, Supervisor Pat Hutt told Hicks that "if he kept pushing this article 10, that they would have to suffer the consequences and also that they would shut the plant down. I find that this remark by Hutt to Hicks constituted a threat of reprisal in violation of Section 8(a)(1) of the Act .4 Otis Crossland, who was a shop steward at the time, credibly testified that while he was on strike during contract negotiations, and while he was on picket duty, Plant Manager Yadeskie called a meeting of employees in the parking lot and among other things told them "that we will show them that we won't be led by a bunch of lost sheep-we know who they are and we will definitely take care of them." I find that this statement by Yadeskie constituted a threat of reprisal against the strike leaders in violation of Section 8(a)(1) of the Act .5 Crossland also testified credibly that Labor Supervisor Pat Hutt told him in confidence that the Union was pushing too hard, that we would break the company if we kept pushing and trying to enforce our contract. I do not find that this statement made by Hutt to Crossland constituted a threat of reprisal but merely a prediction of what could happen to the Respondent. Crossland testified credibly and without contradiction that on one occasion Steve Yadeskie "cussed" him for recklessly operating a forklift: After this incident, Cross- land testified he asked his foreman, Zampardo, if he was things that were his interpretation of article 10 , that we were having enough problems and upsetting the employees was not conducive to good relations Yadeskie testified that the United Steelworkers staff representative, Thomas D Hughes, was also present . Yadeskie, however, did not deny that he told Hicks, as Hicks testified , that he "was not going to put up with anymore of this and he would get me." I therefore credit Hicks' testimony concerning this incident it is also noted that as a result of Yadeskie's remarks to Hicks on this occasion , Hicks filed a grievance 4 Hutt's recollection of this event is that he told Hicks that if they didn't straighten out and the Union be a little more lenient that they would he closing the plant down 5 Yadeskie remembers this occasion when he talked to some of the employees while Crossland was picketing Yadeskie testified that when some of the employees asked him if they were going back to work soon, he replied, "I certainly hope so"-"I wish you would get back operating." On the basis of all the evidence and the other evidence which shows Yadeskie's explosive temper, I have concluded that Crossland's testimony about this incident is the more probable. OHIO FERRO-ALLOYS CORP. doing a good job and Zampardo said, "Yes," and explained to Crossland that Yadeskie was worried about the plant shutting down, and that he couldn't say too much, because Yadeskie was his superior. Crossland credibly testified that Zampardo told him to be careful because Yadeskie was watching Crossland and others at the time. In the context of the discord that had arisen between Yadeskie and the Union over the enforcement of article 10 of the collective-bargaining agreement at the time, I find that Zampardo's remark to Crossland that he and others were being watched constituted a threat of reprisal within the meaning of Section 8(a)(1) of the Act. Employee Randall S. Swanson, chairman of the Union's safety committee, credibly and without contradiction testified that the safety committee was having difficulty getting the Respondent to act on safety complaints, so his committee filed a complaint with OSHA, the federal agency which administers the Occupational Safety and Health Act, in March 1972. Subsequent to this complaint OSHA made an inspection of the plant. In a safety meeting with the Respondent following the inspection, Yadeskie was very upset and told Swanson that he had no business "filing the complaint outside the company and we should resolve things between us." Swanson credibly testified, and, without contradiction, Yadeskie made a few com- ments about his way of thinking and attitude, and told him, "it will send me down the road." I find that the aforesaid remark by Yadeskie to Swanson constituted a threat of reprisal within the meaning of Section 8(a)(1) of the Act. Swanson testified credibly that on an occasion after Schiesz had been fired, he was having a private discussion with Maintenance Supervisor Mervin Farmer concerning the collective-bargaining agreement. Farmer told Swanson, "how bad we were hurting the company, and we'd better straighten up"-and •'Ron Schiesz was too smart to work here, and I sure hope you don't have that same problem." I find that this statement by Farmer to Swanson served as a warning to Swanson not to push for enforcement of the contract or else suffer the same fate that befell Schiesz who was fired in February 1972. This warning constituted a threat of reprisal within the meaning of Section 8(a)(1) of the Act .6 Swanson also testified credibly that sometime after February 1972, he noticed that one of the workers had refused to wear his safety glasses, so Swanson wrote up a safety referral form and submitted it to the furnace supervisor, Elmer Bruner. Swanson credibly testified that Bruner at first refused to accept it and told Swanson, "You are watching me and I will watch you." Swanson also testified that Bruner told him he was going to "get" him.7 I find that Bruner's aforesaid remarks to Swanson violated Section 8(a)(1) of the Act. Swanson credibly testified that on another occasion after February 1972, he observed that Bruner, in violation of the 6 Farmer testified he did not recall having the aforesaid conversation with Swanson. and testified further that he would not make such a remark that, "Ron Schicsz was too smart to work here," because he, "likes to have all the intelligent help he can get " Farmer's assigned reason for not making the remark to Swanson is not convincing . In the context of the conversation, it is apparent that Swanson was referring to Schiesz' union activity when he used the expression. "too smart to work here." 579 contract, was relieving the dispatcher and thereby imper- missibly doing bargaining unit work. Swanson thereupon filed a grievance with Bruner asking for 4 hours pay because he was doing bargaining unit work. When Swanson handed Bruner the grievance, an argument ensued as to whether or not Bruner was going to accept the grievance. Bruner said he could not understand why Swanson was harassing him and again told him, "If you're watching me, I'll watch you and I'll get you."8 1 find that this remark made by Bruner to Swanson constituted a threat of reprisal in violation of Section 8(a)(1) of the Act. Arthur Hahn has been chairman of the Union's grievance committee following Ron Schiesz' discharge in February 1972. Hahn testified that on July 7, 1972, Maintenance Supervisor Mervin Farmer approached him and asked him if there was any way that Hahn could "give up" the substitute work clause and promised to promote him to A- Maintenance man, if he could do that. Hahn replied that he didn't have authority to give up any portion of the contract, and it was his responsibility to uphold the contract. Hahn testified that Bruner approached him several times to stop enforcing the substitute work clause of the contract, and he testified that on one occasion after July 1972, when he had presented seven or eight grievances on supervisors doing bargaining unit work, Maintenance Supervisor Farmer told Hahn that if he "gave up the grievances on supervisor's work", that he would promote him to "A-Maintenance." Hahn also testified that Farmer told him that the Respondent was "having trouble with OSHA, the Union, and the air pollution, and if the Union didn't slack off, the plant would close down." Farmer denies having offered Hahn a promotion to "A- Maintenance" man if he gave up filing grievances. Farmer did recall a conversation with Arthur Hahn in which he told Hahn the Company was in trouble financially, that he was concerned about his job, and about the plant staying in operation. Farmer describes the conversation further that he related to Hahn that the economy in the alloy industry was low; there was a lack of orders;- there was the further expense of complying with the National Safety Act, and "we seemed to be having a rash of unnecessary union problems-and I very definitely asked them if there was something that could be done to help enhance the company's position." Farmer testified that he did not recall discussing with Hahn the matter of supervisors doing bargaining work. Farmer testified credibly and produced documentary evidence to the effect that Hahn did request a promotion to "A-Maintenance", and the request was denied on June 14, 1972, "because of lack of experience," and upon reconsideration was denied again on June 27, 1972. Farmer further credibly testified that on July 5, 1972, he did recommend Hahn for "B-Maintenance." Farmer further testified credibly that under date of June 27, 1972, he made 7 Bruner testified he remembered the incident about the safety glasses but that he didn't make the remarks attributed to him by Swanson Bruner's failure to recount the substance of the conversation persuades me that Swanson's account of what was said is credible 8 Bruner remembers this incident in which Swanson filed a grievance for his relieving the dispatcher He testified that Swanson just sat there and watched him for about 30 minutes. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a note to himself recounting the fact that on that day, "Arthur Hahn explained to M. Farmer that he had been easy to get along with until we didn't give him "A- Maintenance" and wrote him a reprimand-." In view of this positive and documentary evidence submitted to support Farmer's position, I credit Farmer's denial that he offered to promote Hahn to "A-Maintenance" man if he would forego filing grievances. I do, however, credit Hahn's testimony that Farmer told him that he was having trouble with OSHA, the Union, and air pollution, and if the Union didn't slack off, the plant would close down. This threat to closedown the plant is consistent with Farmer's concern which he expressed to Hahn about the economic position of the Respondent. I find that this threat that the plant would close down if the Union, "didn't slack off" violated Section 8(a)(1) of the Act. Robert Crabtree was a safety man and was elected to treasurer of the Union in February 1972. Crabtree testified credibly that in March or April 1972 an employee named Bob Freeman came to him in the plant and complained to him that he was being forced to do substitute work which he didn't want to do. Crabtree, together with Freeman, approached Labor Foreman Zampardo and told him of Freeman's complaint. At this point, Crabtree and Zampar- do engaged in a debate over the question of whether or not Bob Freeman could refuse the substitute work; Crabtree taking the position that, under article 10 of the contract, Freeman could refuse the work and Zampardo taking the position that he should perform the substitute work and file a grievance. Crabtree credibly testified that Zampardo told him if Freeman went home, "Mr. Yadeskie is going to know about it and I'm going to be in trouble", and Crabtree replied, "that's up to him." Zampardo then, speaking to Crabtree, said, "You keep creating problems down here for me and if it doesn't cease, I'm going to have to find a way to put a stop to it." Zampardo agrees that, in connection with the above incident concerning Freeman's refusal to perform substi- tute work, he told Freeman to go ahead and do the work and file a grievance. Zampardo, however, denies that he told Crabtree that if he didn't stop creating problems, Zampardo would have to find a way to put a stop to it. In view of the distress that this substitute work problem was causing Zampardo, I am persuaded that Crabtree's testimony is the more probable and accurate. I therefore find that Zampardo's threat to put a stop to union complaints about being forced to perform substitute work interfered with employees' rights to file grievances and to enforce the contract and therefore violated Section 8(a)(1) of the Act. Crabtree credibly testified that on June 30, 1972, a fellow employee named Dave Willowby came to him in the plant and told him he was having a problem in the loading dock area. Plant Manager Yadeskie who was in the area at the time, ran up to Crabtree and grabbed him by the arm. At 9 Zampardo denied saying to Moms that "now that Ron is gone, maybe things will get back like they were," but admits he told Moms , "You guys, these petty grievances , if you got the cause, it's o.k., I don't care-we'll thrash them out and settle them . It's the only way to settle things We got to get along. That's all there is to it; otherwise, we're going to lose our jobs." Zampardo also recalled that he told Moms, "Now how would you like, you this point, Yadeskie told him that "he had" enough of Crabtree's "bull-running around threatening and intimi- dating," and that he would put a stop to it. Yadeskie's testimonial account of this incident was that he saw an employee away from his work area talking to Crabtree and he learned that this employee was seeking advice from Crabtree. When this employee went back to his job, Yadeskie testified he approached Crabtree and asked what it was about. After Crabtree explained the problem, he started walking away whereupon Yadeskie grabbed him by the shirt and asked where he was going. Crabtree said he was going to see Art Hahn, the Union 's grievance man. Yadeskie testifies , he replied, "That isn't necessary . We just do not want these people badgered anymore." Zampardo who was present when the incident occurred testified that Yadeskie told Crabtree to return his work, and grabbed Crabtree by the sleeve and again ordered Crabtree to go back to his work. I find , on the basis of all the testimony in connection with this last incident, that Yadeskie's conduct was a legitimate exercise of the Respondent's right to direct the work force . In this instance, Crabtree was away from his work station and Yadeskie directed him to return to his work. Timothy C. Morris was a union shop steward beginning in February 1972. Morris testified credibly - that after Ron Schiesz was discharged, Zampardo said to him, "Well, Ron Schiesz is gone, now, maybe things will get back like they were." Morris testified, that on the same day, Zampardo told him that the Union was filing too many grievances, and that Yadeskie was angry with him and the other foremen because they were not writing out enough reprimands . I find that this remark by Zampardo to Morris would have a restraining effect on the employees' right to file grievances and as such violated Section 8(axl) of the Act.9 Moms, who was also on the Union's safety committee, testified credibly that in July 1972, he entered Yadeskie's office and there complimented him on his progress with respect to plant safety. Morris testifies without contradic- tion that when he also told Yadeskie that the employees were getting tired of being watched, Yadeskie became angry and said "It's people like you and Ron Schiesz and Robert Crabtree and Cliff Hicks and Randy Swanson .. . that is going to close this plant down ." I find that this comment by Yadeskie referred to grievance activity of the employees and to that extent interfered with, restrained, and coerced employees in their Section 7 right to file grievances and constituted a threat of reprisal , namely, plant closing, in violation of Section 8(a)(1) of the Act. C. The Discharge of Ronald D. Schiesz Ronald D. Schiesz was hired in November 1966. He had been chairman of the Union's grievance committee since May 1970. He was issued a "suspension subject to discharge" on February 8, 1972, and was discharged guys giving me these grievances-how would you like this if I gave you a reprimand " I find on the basis of the testimony of both Moms and Zampardo that Zampardo's remarks about giving reprimands substantially corroborates Moms' testimony and in effect acted as a restrainton the filing of grievances OHIO FERRO-ALLOYS CORP. February 17, 1972, by Plant Manager Yadeskie after he learned that Schiesz had falsified his application for employment. The General Counsel contends that Schiesz was discharged because of his union activity; the Respon- dent contends the discharge was for application falsifica- tion. The record shows without dispute that Schiesz was an aggressive chairman of the grievance committee and was especially active in taking action in support of his interpretation of the contract, in filing grievances in connection with plant safety, the substitute work issue, and in connection with supervisors performing bargaining unit work. Schiesz called a 1-day strike on October 27, 1971, in protest against the Respondent's failure to promptly post for bidding all jobs in the labor and shipping department. Schiesz also called another strike beginning midnight October 30, 1971, which lasted until the afternoon of October 31, 1971. It is established without dispute that Schiesz' conduct in enforcing the terms of the collective-bargaining agreement, particularly the substitute work clause of article 10, the clause forbidding supervisors from performing bargaining unit work, and in protesting unsafe conditions in the plant aroused the antagonism of the plant supervisors, especially Steve Yadeskie, the plant manager who discharged Schiesz.io Schiesz' union leadership caused a number of the older employees to fear that the turmoil and unrest in the plant would perhaps cause the Tacoma plant to close its doors. Helen Laskey, aged 59, employed with the Respondent over 27 years as a dispatcher, was one such employee who was nearing retirement. Laskey testified that she was quite concerned about Schiesz' conduct. She testified that "it just seemed like he was running the Union, where before the Union would give a little and the men would give a little and the company could give a little, Schiesz would not let us give one way or the other." Laskey testified that, in a conversation she had had with office manager Doris Willingham, "We couldn't understand . . . why he wanted to dictate to us, make us do just what he wanted us to do. We could not understand it at all. And he was telling us when we should take our breaks . . . that we had to have a relief man to do it, that we couldn't have a foreman to do it; consequently, it got to the point that the dispatchers would stay on the platforms for 8 hours at a time. We did not want to leave Inexperienced men there." Miss Laskey asked Mrs. Willingham if she could look into Schiesz' background "and find out where he had been working before and why he was so strict with us." Mrs. Willingham credibly testified that not only Helen Laskey, but other employees asked her to look into Schiesz' background. Willingham discussed it with Labor Foreman Zampardo and they both "wondered if Schiesz was a paid agent for some other company." This turmoil in the plant 10 Schiesz credibly testi fied to an incident where, after twice observing Yadeskie performing bargaining unit work in connection with the repair of a furnace, he criticized Yadeskie and told him he was not setting a very good example to other supervisors . Yadeskie became incensed and in profane language told Schiesz that he was tired of his meddling and warned Schiesz to "watch his step," and that he was nothing but a dictator Schiesz replied that Yadeskie was the dictator-the despot and told him, "You've reigned tyranically around this place for as long as I know and the thing 581 disturbed Willingham who feared that it might result in her losing her job too by the plant's closing down. Willingham suggested to Zampardo that they "look into Schiesz's background." Following this conversation with Willing- ham, and while Plant Manager Yadeskie was on vacation, Zampardo procured a police record on Schiesz which disclosed, among other things, that Schiesz had been arrested for car theft and had served time for armed robbery at the San Quentin penitentiary. As Yadeskie was away on vacation, Zampardo phoned one of the Respon- dent's executives, Mr. Cunningham in Ohio, to notify him. Zampardo testified that he suspected, because of the turmoil in the plant and the rumors he heard that the Union was out to get him, as well from reading a story in True Magazine about industrial spies, that he suspected that Schiesz might be an industrial spy. When Yadeskie returned from his vacation on February 7, 1972, Zampardo gave him the slip of paper containing Schiesz' police record. Yadeskie personally paid a visit to the police station where he was assured on identifying a photograph of Schiesz, that he indeed did have a police record. Yadeskie, thereupon, on February 8, 1972, issued to Schiesz a suspension pending discharge for falsification of his employment application. With respect to Schiesz' employment application, dated November 17, 1966, in answer to the printed question: "Have you ever been arrested or served a jail sentence?" Schiesz wrote in the answer, "No." To the questions, "What Charge?," and, "What Penalty?," the answer was left blank. Over Schiesz' signature was the printed language in the application, "I understand and agree that any misrepresentation or omission of facts on this application is cause for cancellation of this application or will be cause for immediate dismissal if I am employed." Yadeskie engaged a detective firm to procure a complete police record which was furnished by the FBI. This record showed arrests for car theft 11-29-51, Armed robbery 4-19-54, armed robbery 2-13-62 for which he was convicted on two counts and sentenced to San Quentin State Penitentiary, for a term of 5 years to life, as well as other arrests for minor offenses. When Yadeskie received the FBI "blow-back" sheet on February 17, 1972, he turned it over to the Union on the same date and reaffirmed Schiesz' discharge. The Arbitration Proceeding Pursuant to the grievance-arbitration processes of the collective-bargaining agreement, the propriety of Schiesz' discharge was submitted to an arbitrator by agreement between the Respondent and the Union. A hearing was held before the arbitrator on June 2, 1972. An experienced staff representative of the United Steelworkers of America, represented Mr. Schiesz and the Respondent was repre- sented by legal counsel. A stenographic transcript was that irritates you is the fact that there is someone here that is stopping part of the action" and told him further that, "there are people around here that aren't afraid of you and we are going to end this reign of intimidation and coercion." Schiesz then told Yadeskie, "Whether you like it or not, I will be giving you your Christmas present Monday, which will be a grievance" Later that same afternoon Yadeskie came to Schiesz and apologized for his action. Schiesz nevertheless did file the grievance with respect to Yadeskie's performance of bargaining unit work. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made of the testimony, witnesses were called and examined and cross-examined, documentary evidence was submitted by the parties and postheanng briefs were submitted to the arbitrator by each of the parties. The Union sought to prove, and argued in its brief, inter alia, that Schiesz' discharge was based on his union activity . The Respondent argued that the discharge was based solely on Schiesz' concealment of his criminal record in completing his application for employment in November 1966. The Union's grievance report , Exhibit 4 in the arbitra- tion proceeding, dated 2-17-72 and signed by Schiesz and Arthur W. Hahn, grievance chairman, reads as follows: Nature of Grievance SUSPENSION & DISCHARGE - Article 12 On Feb. 13, 1972, after a review of my employment application, the charge of "falsification" as stated in the suspension notification was established as correct and the discharge was affirmed. On the basis of discussions held to date, I challenge S. R. Yadeskie's assertions that the action taken in this case is neither discriminatory nor inconsistent with past practice. I also allege that the Co.'s motivation for this action hinges quite significantly on the grievant 's active role in union activity. I maintain that this action is unfair and unjust. I ask to be reinstated with no loss of seniority, and compensated for all earnings lost. /s/ Arthur W. Hahn /s/, Ronald W. Schiesz Arthur Hahn Ronald W . Schiesz, #2910 Grievance Chairman 2/17/72 The Respondent, in denying the grievance by letter dated 2-22-72, an exhibit in the arbitration proceedings, an- swered as follows: Re: Grievance #16-72 Dear Mr. Hughes: The grievant in this case has stated that his discharge was motivated by his Union activities '; however, I want to make it clear that the discharge was not for his activities prior to his employment or subsequent to his employment, but for the fraud committed upon the Company at the time he was hired. The employment application completed by the grievant states that any falsification of the record would be reason for immediate dismissal . The Company Policies and Procedures also list falsification as a reason for immediate dismissal . This dismissal was effectuated immediately upon knowledge of the falsification. At the time the grievant was hired, the Company was having a large turn-over of employees ; therefore, it was impossible to complete a thorough check of each applicant at the time of hire. In pre -employment checking, the Company can only assume a reasonable burden with regard to time and expense, which makes truthful information provided by an applicant of prime importance in checking his record, and in this case, we find some of the prior employers listed are non- existent. It is apparent that the grievant did, knowingly, willfully, and with intent to deceive, falsify his employment application . We must maintain that Management has a right that the mere passage of time cannot dissipate to weigh the total record and the measure of the crimes committed in determining the suitability of the applicant for employment. In this case had the record been known, the grievant would not have been employed. DETERMINATION : Grievance Denied Sincerely, R. F. Miller, Director Industrial Relations RFM:ds cc: S. R. Yadeskie Art Hahn, Grievance Chairman On page 7 of the Union's post-hearing brief to the Arbitrator, it argued as follows: ... Now this brings up the question of just why was Mr. Schiesz discharged . The answer is simply-and the Union proved beyond a doubt-that was for his Union activity. The company felt that if they could relieve themselves of Mr. Schiesz, somehow, their Union problems would vanish and there would be no more turmoil in the plant. The Respondent argued on pages 15 and 16 of its post- hearing brief to the arbitrator that it was not motivated to discharge Schiesz because of his union activity. The Respondent argued as follows: Next, the grievance would seek reinstatement be- cause of the Company's "motivation"; it allegedly hinged on "the grievant's active role in union activi- ties". Even if true, this would be no defense to falsification of an employment application . But beyond that there is no evidence that it was true. The Company has had a union for years . It has had active members before . As Yadeskie put it, union activity is rather "cyclical". It will undoubtedly have active union members in the future. There is no evidence that any union activity on Schiesz's part was a motivating factor in his discharge. True, some activities on his part caused justified concern on the part of employees. It was the expression of this concern to Yadeskie that caused him to go to the Tacoma Police Department where he found out that Schiesz in fact had served a jail sentence and had a criminal record. Language in the arbitrator's decision clearly shows that the arbitrator considered the Union's claim that Schiesz was discharged for union activity. Thus the arbitrator, page 3 of his decision , in reciting the Union's grounds for the reinstatement of Schiesz stated OHIO FERRO-ALLOYS CORP. that . . . "The grievant was discharged not for proper cause but for union activity." That the issue of Schiesz' union activity was considered by the arbitrator is disclosed further, page 5 of his decision, where he states as follows: Thus we are faced quite clearly with an issue which could possibly hinge on discrimination because of union activity. However the relations of the actions of the employees who carried the information to Yade- skie, to actual discrimination by the Company for Union activity is a bit far-fetched. Further evidence that the arbitrator treated the issue as to whether Schiesz was discharged for union activity appears on page 5 of the arbitrator's decision as follows: ... We have a record, apparently, of a man who once on the job, was able to keep out of trouble with the police and authorities, who performed adequately on the job and also became highly active in the leadership of union activities in the Company. These matters must not be disregarded in this case even though the proven falsification would seem to indicate that discharge would be automatic. On page 7 of his decision, the arbitrator spoke as follows: ... In this case that would involve protecting Schiesz from the discriminatory actions of his fellow employees because of his union activity. The Arbitrator's Decision and Award Apparently as a compromise between the respective positions of the Respondent and the Union, the arbitrator made the following award: Since the decision itself is clouded because of the mutual errors of both the Company and the employee it would appear that we have either to determine who committed the most fatal or significant error or try to provide a balance in the penalty. The latter is my choice. Beginning no later than ten days from the date of this award I, therefore, order that the grievant Ronald Schiesz be offered his job back at the same rate of pay as of the time he was terminated and only after he has filled out an application form accurately and properly. Should Schiesz accept the offer it will be with the conditions that should be convicted of any crime of felonious nature from the moment of his re-entry in the work of the Company he shall immediately be discharged with no recourse. The grievant is not to receive back pay or seniority credit for the time he has not been working for the Company. His seniority accumulation will start where he left off on February 11, 1972. 583 Legal Analysis and Conclusion With Respect to the Discharge of Schiesz In Spielberg Manufacturing Company, 112 NLRB 1080, the Board while acknowledging that it is not bound, as a matter of law, by an arbitration award, held nevertheless that where the arbitration "proceedings appear to have been fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act . . . . we believe that the desireable objective of encouraging the voluntary settlement of labor disputes will best be served by our recognition of the arbitrator's award." This has come to be known as the Spielberg doctrine and has been applied by the Board in numerous decisions either deferring to, or disregarding the, arbitrator's decision. I am of the opinion , and I have concluded that the instant case meets the Spielberg standards. It is clear that the arbitration proceedings were fair and regular. The arbitrator, Dr. Keltner, was selected by mutual agreement from a panel submitted by the Federal Mediation and Conciliation Service . Schiesz was represent- ed ably by Thomas D. Hughes, an experienced staff representative of the United Steelworkers of America. Both sides were afforded full opportunity to present their case and to submit briefs and to fully argue their respective positions. No claim is made that Schiesz was dissatisfied with or was opposed to union representation. Section 11.1, D of the 1971 collective-bargaining agree- ment provided for final and binding arbitration as the final step in differences arising between the Respondent and the Union as to the meaning and application of the contract provisions or should any trouble of any kind arise in the plant as provided in section 11.1 of the agreement. I am of the opinion and I conclude that the decision of the arbitrator was not clearly repugnant to the purposes and policies of the Act. On the basis of the record evidence which appears in the case at bar, reasonable minds could differ with respect to the inferences to be drawn from the entire record. Some could reasonably find that Schiesz was discharged for concealing a past serious criminal record, and that if the Respondent had known of the record, it would not have hired Schiesz in the first instance, as Yadeskie testified. See, e.g., N.L.RB. v. Whitelights Products Division, 298 F.2d 12, 16 (C.A. 1, 1962) and Alterman Transport Line, Inc., 173 NLRB 434. On the same record, other reasonable minds could fairly conclude that Schiesz' aggressive union activity was the cause of his discharge, and that absent his union activity which had made him persona non grata to the Respondent, the Respondent would not have discharged him on the discovery of his past criminal record, particularly in view of his law abiding record and his satisfactory work performance in the 5-1/2 years of his employment by the Respondent. See, e.g., Jacksonville Paper Company, A Division of Unijax Corporation, 182 NLRB 6. As I have stated earlier in this Decision, it appears that the decision and award of the arbitrator was calculated to strike a compromise between the opposing claims of Schiesz and the Union on one hand, and the Respondent on the other hand. The arbitrator's award, which was issued on August 3, 1972, required an offer of reinstatement within 10 days 584 DECISIONS OF NATIONAL from the award, but without backpay . The record shows that Schiesz was reinstated with full seniority on October 9, 1972, with backpay from August 13 to October 9, 1972. The award also required Schiesz , as a condition of reinstatement, to submit a new application form "accurate- ly and properly" with which he has complied. Having found that the criteria set forth in the Spielberg case have been met, I have concluded, in deference to the award of the arbitrator with which the Respondent has complied, that the 8(a)(1) and (3) allegation in connection with Schiesz' discharge should be dismissed. See Gulf States Asphalt Company, 200 NLRB No. 100 (December 18, 1972). Campbell Sixty Six Express, Inc., 200 NLRB No. 157 (December 22, 1972). International Union of Electric, Radio and Machine Workers Local Union No. 130 AFL-CIO-CLC (Westinghouse Electric Corporation), 200 NLRB No. 115 (December 5, 1972). Superior Motor Transportation Co., Inc., 200 NLRB No. 139. Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By threats to discharge employees, to issue repn- mands to them, to discriminate against them, or to take reprisals against them, because they filed grievances in connection with their wages, hours, or other working conditions and terms of employment, the Respondent violated Section 8(a)(1) of the Act. 4. By threats that the plant would close down if employees continued to file grievances with respect to their wages, hours, and working conditions, the Respondent violated Section 8(a)(1) of the Act. 5. It would not effectuate the purposes and policies of the Act to assert jurisdiction with respect to those allegations of the complaint relating to the discharge of Ronald Schiesz. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclusions of this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER" Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to discharge, take reprisals against, or discriminate against employees because they have filed grievances with respect to wages, hours, and working conditions. (b) Threatemng to close the plant if the employees file grievances with respect to their wages, hours, or working conditions. (c) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of the LABOR RELATIONS BOARD right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Post at its plant at Tacoma, Washington, copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) The allegations of the complaint relating to the discharge of Ronald W. Schiesz are dismissed. (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 11 In the event no exceptions are filed as provided by Sec 102.46 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 by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 12 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant 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 trial in which all parties had the opportunity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT threaten employees with loss of jobs, closing of the plant, or other punishment because of their union activity or because they filed grievances. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of these rights. All employees are free to join or assist any union, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Our employees are also free to refrain from any or all such activities, except to the extent that their rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the National Labor Relations Act. OHIO FERRO-ALLOYS CORP. 585 OHIO FERRO-ALLOYS This notice must remain posted for 60 consecutive days CORPORATION from the date of posting and must not be altered, defaced, (Employer) or covered by any other material. Any questions concerning this notice or compliance with Dated By its provisions may be directed to the Board's Office, 10th (Representative) (Title) Floor, Republic, 1511 Third Avenue, Seattle, Washington This is an official notice and must not be defaced by 98101, Telephone 442-5692. anyone.