Inland Steel Company

INLAND STEEL COMPANY 191 Inland Steel Company and Dale Ray. Case 13-CA- Judge and to adopt his recommended Order, 2 as 18261 modified herein. November 9, 1981 ORDER DECISION AND ORDER* Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- BY MEMBERS FANNING, JENKINS, AND lations Board adopts as its Order the recommended ZIMMERMAN Order of the Administrative Law Judge as modi- On March 5, 1981, Administrative Law Judge fied below and hereby orders that the Respondent, Leonard M. Wagman issued the attached Decision Inland Steel Company, East Chicago, Indiana, its in this proceeding. Thereafter, Respondent filed ex- officers, agents, successors, and assigns, shall take ceptions and a supporting brief, and counsel for the the action set forth in the said recommended General Counsel filed cross-exceptions and sup- Order, as so modified: porting brief and in response to Respondent's ex- 1. Substitute the following for paragraph 2(a): ceptions. "(a) Make whole all mechanical maintenance em- Pursuant to the provisions of Section 3(b) of the ployees of No. 11 Coke Battery who suffered re- National Labor Relations Act, as amended, the Na- duction of their lunch break from 30 minutes to 20 tional Labor Relations Board has delegated its au- minutes and the elimination of their washup time thority in this proceeding to a three-member panel. by paying such employees for 15 minutes per day 5 The Board has considered the record and the at- minutes for washup time and 10 minutes for lunch- tached Decision in light of the exceptions and time) from July 20 1978, to September 23, 1978." briefs and has decided to affirm the rulings, find- 2. Substitute the following for paragraph 2(d). ings, and conclusions of the Administrative Law "(d) Remove and expunge from its files any ref- erence to the two disciplinary warnings issued to On January 20, 1982, Respondent requested en banc consideration of employee Dale Ray on December 4, 1978, notify a motion for reconsideration of that portion of the Board's Order in this him in writing that this has been done and that evi- proceeding regarding the promulgation of rules regarding lunch periods and hours of employment in the coke battery. At the request of the par- dence of these unlawful warnings will not be used ties, Respondent's motion was held in abeyance in order to provide all as a basis for future discipline against him, and parties an opportunity to resolve the issue in a manner satisfactory to all concerned. make him whole for any loss of pay he may have Thereafter, on March 15, 1982, the Board received the General Coun- suffered as a result of his refusal to perform paint- sel's and Respondent's joint motion to amend the Board's Order. Re- ing on December 2 and 3, 1978, in the manner set spondent contends, and the General Counsel and Charging Party now agree, that par. 2(a) of the Administrative Law Judge's Order, which was forth for loss of earnings in the section of this De- adopted by the Board, added new terms and conditions of employment to cision entitled 'The Remedy."' the existing contract. The parties are in agreement that the terms and conditions of employment of Respondent's mechanical employees would have changed irrespective of the unfair labor practices committed by Administrative Law Judge. General Foreman Sanger. Upon amendment of the Board's Decision and Order as requested, Respondent agrees to comply with the Board's Order reveals that Sanger initially testified that he decided to assign Ray to and withdraws its previously filed motion for reconsideration. rustproofing around August 20, 1978, and later testified that Ray was as- The Board, having duly considered the matter, on April 1, 1982, grant- signed to rustproofing around the end of June or beginning of July 1978. ed Respondent's request to withdraw its motion for the Board en banc to Neither of these inaccurate statements affects the ultimate disposition of consider the contemporaneous motion for reconsideration; granted the this case. General Counsel's and Respondent's joint motion to amend the Board's ' In accordance with his dissent in Olympic Medical Corporation, 250 Order; and amended its Order. The Board's Order and the notice for NLRB 146 (1980), Member Jenkins would award interest on the backpay posting herein reflect that amendment, due based on the formula set forth therein. 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 credi- APPENDIX bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. POSTED BY ORDER OF THE Respondent has also contended that the Administrative Law Judge's NATIONAL LABOR RELATIONS BOARD interpretation of the evidence and his credibility findings were biased and prejudiced. Upon careful examination of the Administrative Law Judge's An Agency of the United States Government Decision and the entire record, we are satisfied that the contentions of Respondent in this regard are without merit. Finally, in accord with the General Counsel's exceptions, we hereby After a hearing at which all sides had an opportu- correct two inadvertent errors made by the Administrative Law Judge in nity to present evidence and state their positions, sec. Il,D,l, of his Decision. The Administrative Law Judge's reference to the National Labor Relations Board found that we Ray's assignment of rustproofing steel blocks and spare parts as "usual" is inaccurate; the word "usual" should read "unusual"; (2) also in sec. have violated the National Labor Relations Act, as II,D,I, the Administrative Law Judge inaccurately stated that Sanger's amended, and has ordered us to post this notice. recollection of the time of his decision to assign Dale Ray to rustproofing shifted from late June or July to early July or mid-July 1978. The record 259 NLRB No. 24 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten employees with WE WILL make whole the mechanical em- more rigid working conditions because they ployees of No. 11 Coke Battery, because we initiate or process a grievance under our col- unlawfully penalized them on or about July lective agreement with Local 1010, United 21, 1978, for taking a 15-minute washup Steelworkers of America, AFL-CIO, or other- period, by paying them any loss of earnings, wise seek to vindicate provisions of the collec- plus interest, they may have suffered, by re- tive-bargaining agreement, or because they en- moving and expunging from their personnel gaged in other protected concerted activity files all references to the unlawful disciplinary covered by the National Labor Relations Act. actions taken against them, and by informing WE WILL NOT reduce the length of employ- them in writing both that we have expunged ees' lunch breaks, eliminate washup time, or our files and that evidence of our unlawful ac- otherwise impose harsher conditions of em- tions will not be used as a basis for future dis- ployment upon employees because fellow em- cipline against them. ployees are initiating or processing grievances WE WILL make Dale Ray whole for any under our collective-bargaining agreement loss of earnings he may have suffered as a with Local 1010, United Steelworkers of result of the discrimination against him, with America, AFL-CIO, or any other labor orga- interest. nization, or because they engage in union or other protected concerted activities for the WE WILL remove and expunge from Dale purpose of collective bargaining or other Ray's personnel file and our records all copies mutual aid and protection. or other evidence of the disciplinary letters we WE WILL NOT discourage the filing and issued to him on December 4, 1978, and WE processing of grievances under a collective- WILL notify him, in writing, both that this has bargaining agreement or other union activity been done and that evidence of these unlawful on behalf of Local 1010, United Steelworkers letters will not be used as a basis for future dis- of America, AFL-CIO, or any other labor or- cipline against him. ganization, by discriminating against its em- ployees in the assignment or scheduling of INLAND STEEL COMPANY work or by other changes in wages, hours, or DECISION conditions of employment. WE WILL NOT assign employees to perform STATEMENT OF THE CASE rustproofing, painting, or other work, or assign them to the midnight shift or otherwise affect LEONARD M. WAGMAN, Administrative Law Judge: their wages, hours, or conditions of employ- Upon a charge filed by Dale Ray, an individual, the Re- ment because they initiated or processed a gional Director for Region 13 of the National Labor Re- lations Board issued a complaint and notice of hearing in othgrievance or botectd ause they engaged in union or the this case on January 31, 1979. The complaint, as amend- other protected concerted activities for the ed, alleges that Respondent, Inland Steel Company, re- purpose of collective bargaining. ferred to below as the Company, violated Section WE WILL NOT in any like or related manner 8(a)(l), (3), and (4) of the National Labor Relations Act, interfere with, restrain, or coerce our employ- as amended, 29 U.S.C. §151, et seq., herein called the ees in the exercise of the rights guaranteed Act. The Company, by its timely answer, denies commis- them in Section 7 of the Act. sion of the alleged unfair labor practices. WE WILL rescind General Foreman Robert Upon the entire record, including my observation of Sanger's July 20, 1978, announcement and July the demeanor of the witnesses at the hearing, and after 21, 1978, statement of rules regarding lunch due consideration of the briefs' filed by the General periods and hours of employment for the inter- Counsel and the Company, I make the following: im period of start-up in the No. 11 Coke Bat- tery; and WE WILL make whole all mechanical maintenance employees of No. 11 Coke Bat- tery who were denied a washup period at the end of their shift and had their lunch period ' The General Counsel's motion to correct the record is granted. The reduced from 30 minutes to 20 minutes, by corrections are contained in Appendix A of this Decision. [Omitted from publication.] I also find merit in the General Counsel's motion requesting paying each employee for 15 minutes per day me to disregard writings which appear to be arbitration decisions which 5 minutes for washup time and 10 minutes for are labeled attachments "A" and "B" and which the Company appended to its brief. As the Company did not offer the proffered written evidence lunchtime) from July 20, 1978, to September and authenticate it at the hearing, I have granted the General Counsel's 23, 1978. motion and have disregarded them. INLAND STEEL COMPANY 193 FINDINGS OF FACT B. Alleged Interference, Restraint, and Coercion I. JURISDICTION AND LABOR ORGANIZATION During the week of July 17, Dale Ray, who was a me- chanic employed in No. 11 Coke Battery, discussed the The Company, a Delaware corporation, is engaged in pending grievance with No. 11 Coke Battery's general the manufacture of steel products. In the course of its mechanical foreman, Robert Sanger. Sanger asked Ray business operations, the Company annually receives at its why he was filing a grievance. Ray replied that it was East Chicago, Indiana, plant materials valued in excess of not his grievance alone, that there were eight employees $50,000, all of which are shipped directly from points involved, and that the cause of the grievance was the outside the State of Indiana. In its answer, the Company employment of salaried foremen to do bargaining unit admits the foregoing data and concedes that at all times employees' work. material it was an employer engaged in commerce within Sanger pressed Ray for the names of the foremen who the meaning of Section 2(6) and (7) of the Act, and I so had been doing the unit work. Ray responded that it was find. Mechanical Foreman Lawrence Woodworth of No. II The complaint alleges, the Company in its answer Coke Battery, and some other mechanical foremen who admits, and I find that Local 1010, United Steelworkers of America, AFL-CIO, referred to as the Union, is, and was no one else working." has been at all times material to this case, a labor organi- Sanger sought to persuade Ray that the grievance was zation within the meaning of Section 2(5) of the Act. unwarranted. Sanger said that Foreman Woodworth II. THE ALLEGED UNFAIR LABOR PRACTICES "had made an honest mistake" and that Woodworth had not been a salaried supervisor "for that long." Sanger A. Background and Issues added that he "could guarantee that it would not happen again" and questioned the need for filing the grievance. The Company's plant, known as the Indiana Harbor Ray insisted that the grievance was warranted in light Works, employs approximately 24,000 persons. Since 1942, the Union has been the bargaining representative of of the wages lost by unit employees. Ray hastened to the Company's production and maintenance employees employ as long as Woodworth had should recognize that under a series of collective-bargaining agreements, the salaried foremen did not perform unit work. latest of which has been in effect since August 1, 1977. Sanger suggested that employees bring their com- In March 1978,2 Dale Ray, a company employee, testi Sanger suggested that employees bring their com- fied in a National Labor Relations Board hearing in Case plaints to him rather than immediately file a grievance. fled in a National Labor Relations Board hearing in Case 13-CA-16952. Thereafter, on June 15, Administrative Ray replied that, if Sanger wished, the other grieving 13-CA-16952. Thereafter, on June 15, Administrative Law Judge Benjamin K. Blackburn issued a decision in employees might agree to meet with Sanger. However, Ray disclaimed the role of spokesman for the group. that case, which the Board adopted, 3 concluding that the y disclaimed the role of spokesman for the group. Company had violated the Act "[b]y maintaining a no- At this, Sanger expressed his view that such a meeting Company had violated the Act "[b]y maintaining a no- distribution rule which forbids employees to distribute was unnecessary, and that Ray could convey Sanger's literature in nonwork areas on nonwork time and which thoughts to the other grievants. Sanger added that, if any requires them to obtain prior approval of such material of them wanted to discuss the matter with him at that by submitting a copy to management before even bring- point, they could do so. Ray agreed to convey Sanger's ing it into the plant . . . . [238 NLRB at 1206." Admin- sentiments to the concerned employees. istrative Law Judge Blackburn also found that the Com- In the wake of Ray's last response, Sanger warned that pany violated the Act "by conditioning the right of the "department could be run one of two ways." He ex- Thomas Zangrilli and Dale Ray to report for work on plained in substance that No. I 11 Coke Battery could con- tinue to operate "with a little bit of give and take" or it October 2, 1977, on compliance with an invalid no-distri- tnue to operate "with a little bit of give and take or bution rule ... . [Id. at 1207.]" In July Ray and fellow could be run by the book," a circumstance "which employees filed a grievance complaining that salaried could be worse" for employee Ray than it would be for forempleen had performed bargaining ucningthlt work.e Sanger. At this, Ray insisted that the grievance "was im- The issues presented are: (I) whether the Company, in portant" and that he intended "to pursue it." Sanger con- response to the grievance, violated Section 8(a)(1) of the cluded the conversation stating, "lf that's the way you Act by threatening employees with strict working condi- feel about t, have the griever contact me and set up a tions; (2) whether the Company carried out that threat meeting."' and thus violated Section 8(a)(3) and (1) of the Act, by On or about July 15, Mechanical Foreman Kenneth curtailing the lunch period and washup time previously Gearhart, a supervisor in No. 11 Coke Battery, while enjoyed by its No. 11 Coke Battery mechanical employ- driving in a truck at the Company's plant, with employee ees; and (3) whether the Company assigned No. 11 Coke eesanwmechanic Dale Ray to rustproofing and painting CI'My findings regarding the foregoing conversation between General Battery mechanic Dale Ray to rustproofing and painting Foreman Sanger and employee Ray are based on the latter's full and for more than 5 months and transferred him to the night forthright testimony. In his testimony, Sanger admitted that he discussed shift for I week in retaliation for his participation in the the grievance with Ray on or about July 17 or 18. However, Sanger's earlier Board unfair labor practice proceeding and be- version does not include a warning of changed atmosphere in No. II of his role in the filing of the grievance. Coke Battery. Nor did Sanger's testimony include a denial that he made cause of his role in the filing of the grievance. the threat attributed to him by Ray. In assessing the two versions, I note that, unlike Ray, who appeared to be giving his best recollection of the 2 Unless otherwise stated all dates are in 1978. details of the conversation, Sanger was content to provide a superficial Inland Steel Compony. 238 NLRB 1204 (1978). account. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Patrick O'Sullivan, spoke of the pending grievance con- Along with his announcement regarding lunch periods cerning supervisors performing unit work. In this con- and cleanup time, Sanger told the mechanical employees text, Gearhart remarked: "If these guys go through with of No. 11 Coke Battery that they would lose pay for 30 this grievance, things are going to get much worse in minutes due to their early departure on the previous day. this department."s On July 21, Sanger posted a notice at No. 11 Coke Bat- Under Section 7 of the Act,6 employees enjoy the tery which announced the following: right to file grievances with their collective-bargaining representative regarding wages, hours, and conditions of For the interim period before start-up the hours of employment. General Motors Corporation, Packard Elec- work for the Mechanical gang shall be 6:30 A.M. to tric Division, 232 NLRB 335 (1977). It follows that a 2:30 P.M. This means that you will report to the threat of reprisal against employees because they have Mechanical Turn Foreman ready for a work assign- filed a grievance regarding one of those concerns inter- ment promptly at 6:30 A.M. It further means that feres with, restrains, and coerces employees in the enjoy- you will not leave your assigned work area to go ment of that right, and therefore violates Section 8(a)(1) home before 2:30 P.M. The lunch period shall be a of the Act. A & W Products Company, Inc., 244 NLRB paid 20-minute period, conditions permitting, to 1128, 1129 (1979). Precision Castings Corporation, Division begin at 12:00 noon and end at 12:20 P.M. Persons of Aurora Corporation, a wholly owned subsidiary of Allied not complying with these guidelines will be subject Products Corporation, 233 NLRB 183, 188 (1977). to discipline. I find here that Sanger's remarks to Ray included a warning of reprisal for the No. 11 Coke Battery employ- At all times material, the collective-bargaining agree- ees resort to a grievance regarding their claim that a su- ment covering Sanger's employees contained the follow- pervisor had wrongfully deprived them of wages by per- ing in article 10, section 1(b): forming unit work. Considered in context Sanger's re- marks about the manner in which No. 11 Coke Battery The normal work day shall be eight (8) hours of could be operated was a threat that he, who was their work in a twenty-four (24) hour period. The hours general foreman, had authority to impose strictures to of work shall be consecutive except when an unpaid make life more difficult for all of the employees because lunch period is provided in accordance with pre- three of them had filed a grievance. I find that this threat vailing practices. was likely to restrain, coerce, and interfere with the em- ployees in their enjoyment of their Section 7 right to file However, prior to Sanger's announcement, his mechani- grievances under the collective-bargaining agreement. I cal employees did not adhere to the letter of the quoted therefore find that by Sanger's warning the Company contract language. violated Section 8(a)(l) of the Act. I also find that Gear- I find from the testimony of employees Ray, Williams, hart's more direct warning violated Section 8(a)(1) of the and Powers that, prior to Sanger's announcement, No. 11 Act. 7 Coke Battery's mechanical employees, as a matter of practice, took a paid 30-minute period for lunch. Ap- C. The Reduction of the Lunch Break and the proximately 3 weeks before the posting of the notice Elimination of Washup Time for the Mechanical quoted above, Mechanical Turn Foreman Kenneth Gear- Employees of No. 11 Coke Battery hart had admittedly instructed the No. 11 Coke Battery mechancial employees under his supervision to limit their On or about July 20, Sanger told the mechanical em- lunch periods to 30 minutes between noon and 12:30 p.m. ployees of No. 11 Coke Battery that they were only enti- "until further notice." In view of Gearhart's instructions tied to a 20-minute lunch period and that there would and the common practice of the mechanical employees, I not be any washup time at the end of their shift. This an- find that Sanger, Gearhart's immediate supervisor, was at nouncement came 1 day after Sanger had observed his all times aware that his employees were enjoying 30- mechanical employees leaving their work area approxi- minute lunch periods prior to on or about July 20. mately 20 minutes before the termination of their shift. I find from the testimony of employees Ray, Williams, and Powers that, prior to Sanger's announcement and I My findings regarding Gearhart's remark to O'Sullivan are based on the latter's testimony. Of the two, O'Sullivan impressed me as being the posted notice, the No. 11 Coke Battery's mechanical em- more conscientious toward his role as a witness. Gearhart required re- ployees would regularly leave their respective work sta- minders on no less than four occasions that "uhm-hum" is not a word. tions around 15 or 20 minutes before the termination of On occasions he appeared to be evasive during cross-examination by their shift and proceed to their locker room where they counsel for the General Counsel. In any event, Gearhart did not flatly deny the remarks attributed to him by O'Sullivan. deny the remarks attributed to him by O'Sullivan. put away tools, washed up, changed clothes, and pre- In pertinent part, Sec. 7 provides: pared to leave the plant.8 Here again, the practice con- Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- 'In his testimony, Sanger conceded that it was "entirely possible" that tives of their own choosing, and to engage in other concerted activi- foremen had granted mechanical employees a washup time at the end of ties for the purpose of collective bargaining or other mutual aid or their shift. However, I find that, prior to or on or about July 20, No. 11 protection .... Coke Battery's mechanical employees openly took washup time and that 7The complaint did not include an allegation that Gearhart's threat Foreman Gearhart expressly instructed employees to do so. I have also violated Sec. 8(a)(l) of the Act. However, as I find that Gearhart's considered the infirmities in Sanger's testimony, as discussed elsewhere in remark was closely related to the subject matter of the complaint and this Decision, which impaired the reliability of his testimony. From these was fully litigated, my finding that it violated Sec. 8(a)(l) accords with circumstances, I find that, prior to July 20, he was aware that his em- Board policy. The Timken Company, 236 NLRB 757, 758 (1978). ployees regularly enjoyed a washup period. INLAND STEEL COMPANY 195 formed to Foreman Gearhart's instructions to his em- voiced his threat to supervise his employees "by the ployees. g As of the time of the hearing, the Company book." continued to implement the lunch hour and washup poli- I find no merit in the Company's contention that cies announced by Sanger in July. Sanger imposed the limitation on lunch and eliminated Throughout July and August, No. 11 Coke Battery washup time because of changed operating conditions in was in the final stage of its 3-year construction period. the No. 11 Coke Battery. For, No. 11 Coke Battery did No. II began production on September 23. On August not begin production until on or about September 23." 20, the Company divided No. 11 Coke Battery's me- Further, the Company did not show any change in No. chanical employees into thee-shifts. Prior to that date, all I I's startup operations prior to Sanger's announcements mechanical section employees of No. 11 Coke Battery and notice to otherwise explain the restrictions he im- worked on a day shift.' ° The notice of July 21, recited posed. above, was the first notice posted in No. II11 Coke Bat- In sum, I find that General Foreman Sanger's imposi- tery regarding hours of work. Further, the Company has tion of strictures upon the lunch and washup practices of never issued any notice concerning that topic to any of the No. 11 Coke Battery mechanical employees was mo- No. Il's other sections. tivated by his hostility toward the pending grievance of The General Counsel contends that the Company re- employees Johnson, Williams, and Ray. I also find that duced the lunch break and eliminated washup time for the deduction of 30 minutes' pay from wages due me- the mechanical employees of No. 11 Coke Battery be- chanical employees of No. 11 Coke Battery on or about cause employees Dale Ray, Jack Johnson, and Irvin Wil- July 19 was also motivated by the same hostility. liams were pressing their grievance. The Company By these strictures and the penalty the Company un- denies this contention and urges that only "legitimate lawfully interfered with its employees' Section 7 right to business purposes" motivated its decision to impose these file a grievance with their collective-bargaining repre- strictures. I find ample evidence to support the General sentative and thereby violated Section 8(aXI) of the Act. Counsel's contention. The same conduct also constituted discrimination in vio- No doubt the sudden reduction of their lunch period lation of Section 8(a)(3) of the Act. General Motors Cor- from 30 to 20 minutes and the elimination of washup poration, Packard Electric Division, 232 NLRB 335 (1977). time were unpleasant changes in the working conditions of No. 11 Coke Battery's mechanical employees, and that D. The Alleged Discriminatory Treatment of Dale the source of these announcements was, as General Fore- Ray man Sanger suggests, a nexus between his earlier con- frontation with No. 11 Coke Battery mechanical employ- 1. The facts ee Dale Ray and these changes. During the week beginning July 21, employee Stephen General Foreman Sanger had become displeased with Bechtel overheard Foreman Gearhart discussing the the stated intention of No. 11 Coke Battery employees grievance filed by Dale Ray, Irvin Williams, and Jack Ray, Johnson, and Williams to press their grievance. Johnson. Gearhart described Dale Ray as "a union man Sanger's hostility towards the pending grievance pro- agitator type." He referred to Williams as a follower and voked him into seeking a confrontation with Ray on or expressed curiosity as to why Johnson was involved.' 2 about July 17. In that encounter, Sanger sought to per- Dale Ray's name came up at or about the same time in suade Ray that the grievance was unnecessary. When Sanger saw that his effort was failing, Sanger threatened connection with an un e July/August issue of the to operate "by the book," and warned that it would "be against the Cwspaper Localny. Th e July/Augus t issue of the much worse for (Rayl than it would be for him" if Union's newspaper, Lcal 1010 Steelworkers at Inland Sanger did so. Thus did Sanger's hostility provoke him Steel Company, contained the following article under a to threaten Ray and his fellow employees with less pleas- headline "Members Stick Up For Their Rights-Back ant working conditions if Ray and his colleagues pressed Inland Down": their grievance. Ray, Johnson, and Williams did not Tom Zangrilli and Dale Ray of #4 BOF came to waiver in their determination to press the grievance. work one night with a stack of newspapers to pass Finally, the timing of Sanger's announcements strongly out to any one who might be interested. Because suggests that he was carrying out his unlawful threat. these papers had a radical point of view, the guards Thus, they came a little more than 2 days after he had refused to let Tom and Dale enter the plant with ' Ray testified that, prior to Sanger's notice, Foreman Oearhart had in- them. The two knew that any employee has a right structed the mechanical employees under his supervision to follow the to distribute literature relating to the union or union washup practice. Gearhart testified that the only instructions he gave his activities in non-working areas (canteen, locker employees about cleaning up was that they could police up their work rooms, lunch shanties, etc.) on non-working times areas beginning 10 minutes before the end of their shift. However, as I found Ray to be the more reliable witness, I have credited his testimony. (before and after work, lunch and coffee breaks). '° The mechanical section is one of the seven sections constituting the No. II Coke Battery Department. As of January 15, 1979, No. II Coke " I based this finding on the testimony of Company Superintendant Battery consisted of 380 hourly employees, 40 foremen, 7 general fore- McMorris. men, and I assistant superintendent. Sanger's mechanical section performs '2 My findings regarding Gearhart's remarks are based on Bechtel's tes- No. Il's maintenance. Its complement consists of 39 mechanics, 54 ap- timony. Gearhart did not deny making the remarks attributed to him by prentices, and 14 foremen. Bechtel. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD They refused to surrender their legal rights, and working hours at the plant in an attempt "to change peo- thus lost a day's pay. ple's ideas about the Union." Ray asserted that he knew The Supreme Court affirmed employees' rights to what he was being paid for and that he also knew his distribute union literature on company property. rights, and that McMorris need not worry that Ray The rulings upheld findings by two lower courts would exceed those rights. Ray added that he intended against a Time Inc. subsidiary and Beth Israel Hos- to use the rights. McMorris acknowledged Ray's rights pital of Boston. In both cases, the Justices relied on but cautioned that if Ray exceeded those rights that he, long standing rulings that off-duty workers can so- McMorris, would have to do something about it. licit for a union except in "special circumstances" McMorris drew Ray's attention to the current collec- and can hand out literature in non-working areas. tive-bargaining agreement stating that he considered it to be "law," and that he adhered to it "to the letter." Ray NLRB responded that he also adhered to the contract. McMor- They took the matter to the National Labor Re- ris went on to explain how the Company had won a lations Board (NLRB). This is the federal agency in grievance against the Union at the arbitration stage charge of administering the federal labor laws (not which he, McMorris, had pressed. Ray asked McMorris to be confused with the Inland Steel's Department if that were all that McMorris wanted to talk to him of "Labor Relations.") The NLRB said the Company about, and McMorris responded yes, unless Ray had was wrong and Inland was ordered to pay all time lost some other matter to raise. with interest. A notice of this and the regulations Ray asked McMorris if it were possible to settle the governing distribution of literature must be posted pending grievance. McMorris rejected the suggestion on by the Company where everyone can see it. the ground that he believed that the matter should be Unless the Company appeals this decision and it taken through the grievance procedure. At this, the con- is overturned by the Court (a highly likely possibil- versation broke off and Ray left McMorris' office. ity see article above) we can assume that they will On July 28, the grievance reached step one when Gen- not recognize our right to distribute union related eral Foreman Sanger and the Union's official griever, literature in the plant. employee J. Freeman, discussed the matter of a supervi- sor doing unit work. Thereafter, on August 7, Sanger de- The decision referred to in the quoted article was Ad- cided to resolve the grievance by admitting that a super- ministrative Law Judge Blackburn's decision in Inland visor had performed bargaining unit work, assuring the Steel Company, Case 13-CA-16952. employees that a repetition of this infraction would not On an occasion during the last 2 weeks of July, after occur, and agreeing to make grieving employees Ray, Ray had received a copy of the Union's newspaper and Johnson, and Williams whole for their loss of wages. after his conversation with Sanger, No. 11 Coke Bat- The Union accepted Sanger's resolution of the grievance. tery's superintendent, Charles E. McMorris, summoned Two hours before the conversation with McMorris, Ray to his office.' 3 General Foreman Sanger had by this Foreman Alfred Hernandez assigned Ray to wash a time described Ray to McMorris as the "spokesman" for Grove mobile crane with soap and water. Present at the the grieving employees. When Ray presented himself, time Hernandez gave Ray this instruction, were four or McMorris showed him a copy of the Union's newspaper five mechanical employees including Mike Baculla. Dale containing the quoted article. Although McMorris said Ray questioned Hernandez' instructions and reminded he had seen the article, he asked Ray to summarize it. him that Baculla had washed the machine on the previ- Ray explained that the article discussed a Board case ous day. Hernandez responded that soap had not been concerned with distribution of literature in nonworking available when Baculla washed the Grove on the previ- plant areas during nonworking time. McMorris asked ous day and that it was available now. Ray insisted that what Dale meant by "nonworking areas and nonworking there was only "mill dirt" on the crane and expressed time." Dale explained that he meant "in the locker room doubt that further washing would improve its appear- before and after work and in the lunch room during the ance. Hernandez insisted that Ray wash the crane adding lunch break." that "they" wanted Ray to wash it. Ray asked who Her- The two then joined issue on the question of distribu- nandez was referring to but received no response except tion of literature. McMorris complained that the distribu- direction to perform the work. As a matter of practice, tion of literature in the employees' locker room created a prior to this incident, the crane's operators were respon- "very bad litter problem." He said he hoped that Ray sible for washing it. Prior to Hernandez' assignment of would attempt some other means of communicating with that task to Ray the latter had not operated the Grove.'4 his fellow employees. Ray expressed displeasure at em- On the day after Dale Ray's confrontation with Super- ployees who threw literature on the floor. However, he intendent McMorris, Foreman Gearhart assigned'" Ray insisted that, if he believed there were a need for such distribution, he would do so and McMorris would be " My findings regarding the confrontation between Hernandez and obliged to solve the litter problem. McMorris then fo- Ray are based on Ray's testimony. Of the two, Ray seemed to have the cused his attention upon Ray's motive for distributing lit- more vivid recollection. erature. McMorris said that Ray should not use his IS Gearhart testified that he made the assignment on his own initiative in early July. Gearhart also testified that he made the assignment in part because Ray could not operate mobile equipment due to his vision. I also 13 My findings regarding Ray's conversation with McMorris are based find from Stephen Bechtel's testimony that, before Ray began rustproof- on Ray's and McMorris' testimony. Continued INLAND STEEL COMPANY 197 to rustproofing some small steel blocks. Gearhart made his experience of 4 years with the Company, he consid- the assignment at 7 o'clock that morning, instructing Ray ered Ray's assignment to be unusual. to accompany him to the No. 11 Coke Battery's shop Irvin Williams, who at the time of the hearing had area, where the steel blocks were located. Gearhart in- been a company employee for 3-1/2 years and had been structed Ray to use a 1-inch paint brush to apply the employed in No. 11 Coke Battery for approximately 14 compound from a 55-gallon drum. Gearhart instructed months as a welder, was not aware of any employee at Ray to perform this task in an area of the shop where he No. 11 Coke Battery, other than Dale Ray, who had would be by himself and where the floor was clear. ever been assigned to do rustproofing for 5 months or At the time Sanger made the assignment, Ray had longer. Nor was he aware of any employee of No. 11 been a mechanic for 2 years. Prior to that, he had under- Coke Battery who had been assigned to do rustproofing gone an apprenticeship at the Company's plant. In sum, for more than a month at a time. Employee Wayne Ray had been in the Company's employ for approximate- Powers, who at the time of the hearing had been em- ly 5-1/2 years. ployed by the Company for 7 years and worked in No. There were other employees of lesser skill employed 11 Coke Battery as a mechanical apprentice for approxi- in No. 11 Coke Battery at the time of Ray's assignment. mately I year, was not aware of any mechanic, other Apprentices and laborers were in its work force. The la- than Ray, whom the Company had assigned to do paint- borers were the lowest paid employees in the depart- ing in No. I Coke Battery for 5 months or longer. Nor ment. Ray and his fellow mechanics were among the was he aware of any other mechanic or apprentice me- most highly paid employees in No. 11 Coke Battery. chanic other than Ray who, as of the time of the hear- From late July 1978 until the middle of January 1979, ing, had been assigned to do painting in No. 11 Coke Ray was assigned to rustproofing. First he covered steel Battery for 1 month or longer. He was not aware of a blocks and later spare parts. He rustproofed two differ- mechanic or apprentice mechanic other than Dale Ray ent types of blocks. The first was a rectangular block who was assigned to do painting for more than I week with a hole that had tap threads. He rustproofed approxi- in No. 11 Coke Battery. Finally, he testified credibly that mately 4,000 of that variety. He also rustproofed 6,000 Dale Ray's assignment of rustproofing was not a normal rectangular blocks, each of which had a round piece assignment. welded to it. In the course of this assignment, Ray heard The Company unsuccessfully attempted to show that fellow employees refer to him as "Rusty Jones." Ray's assignment was considered favorably by No. 11 Ray conceded that rustproofing was part of a mechan- Coke Battery employees. General Foreman Sanger, ic's work. However, he also credibly testified that, while Foremen Gearhart, Hernandez, and Johnson testified rustproofing is part of a mechanic's job, assignment to that employees inquired about obtaining Dale Ray's rust- that task for a 5-month period was extraordinary. Indeed, proofing assignment or similar work. However, Gearhart his was the only incident of such an assignment that he and Johnson punctuated their testimony in this regard knew of. with smiles and chuckles. Hernandez testified that he did Other witnesses considered Ray's assignment to be ab- not reply to employees Dale Hamilton and Richard normally long. James Lanigan, who had been in the Bailey. Sanger testified that he received similar inquiries Company's employ for approximately 4 years at the time from employees Jack Johnson and Dale Hamilton. How- of the hearing, and had been in No. 11 Coke Battery ever, employees Hamilton and Johnson both testified since March 1978, considered the length of Dale's assign- that they did not want to do rustproofing. Initially the ment to rustproofing to have been unusual for a mechan- Company's testimony suffers from the infirmity of being ic. Lanigan was not aware of another mechanic or ap- hearsay. However, the sarcastic demeanor of witnesses prentice mechanic in No. 11 Coke Battery ever having Gearhart and Johnson as they testified and the credible been assigned to rustproofing for more than 1 week at a testimony of two current employees, Hamilton and John- time. son, strongly suggested that Ray's fellow employees Mechanic Jack Johnson, an employee of No. 11 Coke were not in fact envious of him. Battery since June 1, and a company employee for 4 On approximately six occasions between July 1978 and years, was not aware of any No. 11 Coke Battery me- mid-January 1979, Dale Ray received brief assignments chanic, aside from Dale Ray, who had been assigned to to handle mechanical breakdowns. However, he spent 90 rustproofing for 5 months or longer. Further, based on to 95 percent of his time rustproofing. When Ray took a 2-week vacation during the last part of October and the ing, Gearhart with a chuckle took credit for devising "a good job for Mr. first days of November, the Company assigned no one to Ray." However, Sanger testified that it was his decision to assign Ray to perform t rustproofing. I am doubtful of Sanger's recollection of the time of his de- cision which, in his testimony, he shifted from late June or July to early On the day that Foreman Gearhart first assigned Ray July or mid-July. I also rejected, as unreliable, Foreman Lawrence John- to rustproofing, employee James Lanigan began to assist son's speculation that Ray began rustproofing in late May. I have accept- in the work. Lanigan had no definite work assignment ed Dale Ray's recollection of the timing of the assignment. His convinc- ing testimony was corroborated by O'Sullivan and Foreman Hernandez. and had been istructed by hs immediate supervisor to As for the issue of who decided to make the assignment, I have accept- assist employees who might need help. Lanigan chose to ed Sanger's admission. Of the two, he appeared more concerned than was help Ray. Gearhart about Ray's grievance activity. By the time of the assignment Sanger had already evidenced his concern by imposing reprisals upon the mechanical employees. Further, of the two, Sanger seemed more at ease ing Ray, Gearhart approached. He inquired why Lani- as he frankly took credit for the decision. gan was assisting Ray. Upon hearing the explanation, 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gearhart directed Lanigan to seek another assignment. s6 complain that whenever he looked up from his work For the next 2 months, Ray received no help in rust- "there was a foreman standing over me or harassing me proofing. hereafter, on two or three occasions, the Com- about something." Sanger denied being aware of such pany assigned an apprentice, for I day, to help Ray rust- conduct by supervisors. Ray asked how long the rust- proof spare parts. proofiug assignment would last. Sanger replied he did Foreman Gearhart also prevented other employees not know and that it could last "indefinitely." At this the from coming in contact with Ray during the months of conversation broke off.20 rustproofing. In the first month of this assignment, Ray On the following day, the Company posted a shift overheard Gearhart on several occasions order employee schedule for No. 11 Coke Battery's mechanics covering Jack Johnson, who was either moving towards Ray's the first week of October. The schedule showed that area or standing nearby, not to talk to Ray. 7 Gearhart Ray was transferred from the day shift to the midnight issued a similar warning to employee Wayne Powers.-' shift. Thereafter, Ray worked on the midnight shift for In each instance, Gearhart threatened to send the em- only I week. The Company returned Ray to the day ployee home if the employee violated the order. shift where he remained until the middle of February Gearhart also issued warnings to employees Williams 1979 While assigned to the midnight shift, Dale Ray and O'Sullivan regarding their contacts with Ray. Out of continued to perform rustproofing. To his knowledge no Ray's presence, Gearhart told Williams to stay away Ray's presence, Gearhart told Williams to stay away one continued his work on the day shift while he was on from Ray, warning that Ray would "get Williams in trouble." Gearhart issued a similar injunction to employ- the midnight shift. ee O'Sullivan, also out of Ray's hearing. On or about December 2, Foreman Riggsby directed On another occasion in August, Gearhart approached Ray to apply an undercoating paint to the storage loft lo- O'Sullivan at the plant after the latter had returned from cated over the carpenters' area in No. II Coke Battery's Ray's end of the shop. After "shaking his finger like a mechanical shop. Ray balked at this assignment telling parent," he warned O'Sullivan: "I don't want you down Riggsby that he did not believe that it was "a mechanic's there talking to that man anymore. You're not supposed job" and refused to perform the work. Riggsby told Ray to talk to him." O'Sullivan protested: "I haven't been to discuss the matter with General Foreman Sanger. told that since I was out of grade school. My parents Ray immediately presented himself in General Fore- don't even have to tell me who I can or who I can't talk man Sanger's office, where he complained that the as- to anymore." Gearhart pointed his shaking finger at Dale signment he had received from Riggsby was not a me- Ray during this exchange. Prior to this encounter O'Sul- chanic's work. In the exchange which followed, Ray livan had been talking to Ray for approximately one suggested that the work be assigned to a painter or la- minute about O'Sullivan's recent vacation. 19 borer. Sanger asked if Ray was refusing to do the work Gearhart's instruction to employees Johnson, Williams, and Ray conceded that he was, whereupon Sanger sent and O'Sullivan were unique. None of the three had ever Ray home. before received instructions from company supervision On the following day, Ray reported for work. He met to cease talking to, or remain away from, a fellow em- Supervisor Riggsby who asked, "Are you ready to paint ployee. Dale Ray also never heard a company supervisor the loft?" Ray again refused. Whereupon Riggsby moved give such instructions to employees regarding another Ray's timecard out of his pocket, punched it, and direct- employee. ed Ray to go home. Four or 5 weeks after Ray began rustproofing, he sug- Ray did not report to work on December 4. Instead, gested a change in the procedure to General Foreman he went to the Board's Chicago office where he filed an Sanger. Ray suggested taking the boxes in which the unfair labor practice charge in the instant case. steel blocks were stored, putting a drain on them and a As a result of Ray's refusal to perform the assigned lid and filling the boxes with oil to prevent the blocks paint job on December 2 and 3, the Company issued two from rusting. Sanger rejected that process saying it disciplinary statements to him on December 4. In addi- would be too messy and that he wanted the blocks rust- tion, Ray lost pay for December 2, 3, and an additional 8 proofed with a brush. hours on December 14. After December 4, Dale re- In September, Ray complained to General Foreman turned to work and painted the loft, a job which re- Sanger about "rustproofing all the time." Ray asked why quired until the middle of January 1979.21 the Company could not employ an apprentice or laborer I also find from Ray's testimony that at the end of to do that work in view of the shortage of mechanics at May 1979 Foreman Lawrence Johnson, a shift foreman No. 11 Coke Battery. Sanger responded that Ray had re- assigned to No. 11 Coke Battery, disclosed to Ray that ceived the assignment because he was a mechanic and General Foreman Sanger had scolded Johnson on those thus did not need constant supervision. Ray went on to occasions when Johnson had relieved Ray of rustproof- ing to perform mechanical breakdown work. Johnson '7 My findings regarding Gearhart's encounter with employee Lanigan ing to perform mechanical breakdown work. Johnson are based on Ray's and Lanigan's testimony which was largely corrobo- also disclosed that the reason Sanger was irked by John- rated by Gearhart. 17 My findings regarding this incident are based on Dale Ray's and '° Ray's detailed version of this conversation is largely corroborated by Jack Johnson's testimony. Sanger. However, Sanger seemed to gloss over the encounter and was ' I based my findings regarding Powers' encounter with Gearhart on not careful to remember details. I have, therefore, credited Dale Ray's Ray's and Powers' testimony. version. " My findings regarding Gearhart's encounters with Williams and "' My findings regarding the storage loft painting assignment are based O'Sullivan are based on Williams' and O'Sullivan's testimony. on Ray's testimony and the Company's records. INLAND STEEL COMPANY 199 son's actions was because Superintendent McMorris 13-CA-16592. Nor was there any reference in any of wanted Ray to perform the rustproofing and nothing Sanger's remarks or in any other supervisor's remarks to else. Ray's role in that case. All of Superintendent McMorris' remarks focused on the limitations on Ray's right to dis- 2. Analysis and conclusions tribute union literature and talk about his union sentiment There is much to show that prior to Dale Ray's as- during working hours at the plant. signment to rustproofing his superiors manifested annoy- To establish a violation of Section 8(a)(4) of the Act ance at the grievance that he and two other employees the record must show that the Company's discrimination had filed, and at the Board's decision indicating his right against employee Ray was "because he has filed charges and the right of another employee to distribute union lit- or given testimony under this Act." I find no such show- erature at the plant. Significantly, No. 11 Coke Battery's ing has been made. Accordingly, I shall recommend dis- supervision considered Ray the leader of the grieving missal of the allegation that by its treatment of Ray the trio, and something of a union agitator. Company also violated Section 8(a)(4) of the Act. General Foreman Sanger directed his animus at Ray to The Company urges that its assignment of work to persuade him to withdraw the grievance. Sanger threat- Dale Ray was free of unlawful motive. General Foreman ened reprisals against Ray's fellow employees and Sanger, the management official who made these assign- warned that it would "be worse for Ray" than it would ments to Ray, offered explanation of Ray's unusual treat- be for Sanger if Sanger retaliated against the grievance. ment. However, I find Sanger's testimony casts serious Ray remained steadfast in his intent to press the griev- doubt upon the Company's proffered defense. ance. Shifts in Sanger's testimony suggest a hasty improvi- Superintendent McMorris gave vent to his feelings by sion. He first testified that he chose Ray for rustproofing bluntly warning Ray to take care lest he go too far with at the time that No. 11 Coke Battery's maintenance em- his Section 7 right to distribute union literature and seek ployees began going on shift work. However, at a later employee support for his union sentiment. McMorris also point in his testimony, Sanger testified that he assigned warned that he would run No. 11 Coke Battery strictly Dale Ray to do rustproofing before the mechanical em- according to the contract. Ray insisted that he intended ployees began shift work. The record shows the mechan- to exercise fully his Section 7 rights. T ha t Sanger imposed more onerous conditions ics in Sanger's section began shift work on August 20. According to Sanger's later testimony his decision was II Coke Battery's mechanical employees by truncating made "toward the latter part of June or first of July." their lunch period and eliminating their washup time re- Sanger also admitted that he was on vacation during the vealed his and the Company's willingness to resort to un- last week of June and at least through July 4. lawful punishment when confronted with employees ex- ercising their right to enforce a collective-bargaining I do not credit Sanger's explanation that he chose Dale agreement. These reprisals together with Foreman John- Ray without knowledge of his qualifications other than son's disclosure suggest that Sanger and McMorris that he was a mechanic, and that, for the latter reason, would not shrink from using a work assignment to he and his foremen decided that Ray required only "a punish a leading employee advocate of the Union and very minimum amount of supervision" and therefore was contract enforcement. more suited to the assignment than an apprentice me- The opportunity to punish Dale Ray resoundingly ap- chanic. Dale Ray Joined the No. 11 Coke Battery in peared in the form of a lengthy menial job; 10,000 steel March and his assignment to rustproofing came no less blocks needing rustproofing. Sanger admittedly seized than 4 months later. I find it difficult to credit Sanger's this opportunity. The assignment to rustproof steel testimony that by that time all he knew about Ray was blocks and then spare parts for a total of 5-1/2 months that he was a mechanic. Moreover, the Company's re- was usual. The attempt to isolate Ray while he was thus cords reveal that, on May 31 and June 30, No. I Coke engaged is further evidence of Sanger's and McMorris' Battery employed 8 mechanics and, that by July 31 this punitive attitude. The chuckles of supervisors as they tes- number increased to 22. Thus, it appears that the Compa- tified that other employees sought the same work reflect ny had at least seven other mechanics to chose from. the tedium and unpleasant nature of the work. In Sep- Absent from Sanger's testimony is any specific compari- tember, when Ray complained to Sanger about the rust- son of Ray with the other No. 11 Coke Battery mechan- proofing, the general foreman responded. He transferred ics. A further infirmity in Sanger's testimony was his re- Ray to the midnight shift for I week. Finally, in Decem- luctance to characterize rustproofing. When counsel for ber Sanger found one last opportunity to punish Ray. the General Counsel asked him whether he would de- Well aware of Ray's resentment, Sanger assigned him to scribe the application of rustproofing with a paint brush rustproofing a storage loft. In sum, I find strong support as a skilled job, Sanger's initial answer was: "I'm sure for the General Counsel's contention that the Company's that some of your unions would describe that as a skilled treatment of Dale Ray ran afoul of Section 8(aX3) and job, yeah." When pressed again, Sanger answered, "I (I) of the Act. really don't know how to answer that." When reminded However, I am not persuaded that the General Coun- of his experience at Inland Steel and the fact that he was sel has established a prima facie case showing that the a supervisor of foremen in No. II Coke Battery, Sanger Company violated Section 8(a)(4) and (1) of the Act. finally answered: "I would say semi-skill." For, in his remarks to Ray, McMorris made no reference Nor am I satisfied with Sanger's explanation as to why to Ray's participation in the Board proceeding in Case he did not employ an apprentice mechanic to perform 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the work assigned to Ray. According to Sanger, he did ditions because they engaged in the protected concerted not choose an apprentice to do the job on the ground activity of filing and pursuing a grievance under a col- that he and his foremen wanted to provide them with lective-bargaining agreement between the Company and "as much exposure as possible in the fastest possible time the Union. to a coke battery." However, the startup date of the bat- 4. The Company violated Section 8(a)(3) and (1) of the tery was September 23, almost 2 months after Sanger as- Act by reducing the lunch break and eliminating the signed the rustproofing to Dale Ray. This circumstance washup time for the mechanical maintenance employees suggested that the apprentice mechanics of No. 11 Coke of No. 11 Coke Battery, because fellow employees were Battery did not have the desired opportunity to observe pressing a grievance under a collective-bargaining agree- No. 11 Coke Battery in operation at the time Sanger se- ment between the Company and the Union. lected Dale Ray. Further, there were no training classes 5. By assigning employee Dale Ray to perform rust- for the mechanics in No. 11 Coke Battery. Nor was for the mechanics in No. Coke Battery. Nor was proofing and painting work, and by assigning him to the there any training material regarding the startup of the coke battery. In sum, I find Sanger's explanation regard- ing the failure to select an apprentice other than Dale gaged in union activity, including the distribution of lit- Ray lacking in substance. erature on company premises and the pressing of a griev- Further, the Company made no attempt to explain ance under a collective-bargaining agreement, the Corn- why it could not relieve Ray of the tedium of painting pany violated Section 8(a)(1) and (3) of the Act. 10,000 steel blocks and an unknown number of spare 6. The aforesaid unfair labor practices affect commerce parts by rotating the job among the mechanical employ- within the meaning of Section 2(6) and (7) of the Act. ees under Sanger's supervision. Nor was there any expla- 7. The Company has not otherwise violated the Act. nation for Sanger's refusal to relieve Ray of the tedium of the rustproofing work in September, when Ray com- THE REMEDY plained. Having found that the Company has engaged in and is Finally, Sanger's excuse for his assignment of Ray to engaging in unfair labor practices, I shall recommend the midnight shift on the week of October I does not that it be ordered to cease and desist therefrom and take withstand scrutiny. According to Sanger, he needed affirmative action necessary to effectuate the purposes of three employees to replace two employees who were absthree employees to replace two.s employees who were the Act. I shall also recommend that the Company be or- absent from the midnight shift. The two absent employ- dered to restore the lunch period provided for the me- ees were involved in the mechanical maintenance of No. chanical employees of No. Coke Battery to 30 m- 11 Coke Battery. Two of the three replacements filled in chamcal employees of No. 11 Coke Battery to 30 min II Coke Battery. Two of the three replacements filled in utes, and that it restore to those same employees the 15- for the two absent employees, the third replacement, Dale Ray, performed only rustproofing. The unanswered July 21, 1978. shall also recommend that to on or abny .'estion .s .hy Dale .ay had to do rustproofing on July 21, 1978. I shall also recommend that the Company question is why Dale Ray had to do rustproofing on the be ordered to make whole all mechanical employees of mi -r.ght si nt oh A. shift. be ordered to make whole all mechanical employees of midnight shift instead of the day shift. In sum, I find the Company's explanation of its treat- No 11 Coke Battery who suffered loss of wages because ment of Dale Ray fatally lacking in substance. The ab- they left their work area and took a 15-minute washup sence of a plausible explanation leaves unrebutted the period on or about July 20, 1978. I shall also order the strong evidence of unlawful motive recited above. i Company to make employee Dale Ray whole for the therefore find that the selection of Dale Ray to perform wages lost by reason of his refusal to perform painting rustproofing on the steel blocks, the spare parts, and the on December 2 and 3, 1978, and to expunge from his storage loft was calculated to cause Dale Ray discom- personnel records all copies of the disciplinary letters the fort, deprive him of job satisfaction, and finally, to pro- Company issued to him for such refusal. Interest on the voke him into refusing a work assignment. The Company backpay provided herein shall be computed in accord- meted out this harsh treatment to Ray because of his ance with the Board policy described in Isis Plumbing & stubborn insistence upon pressing the grievance and his Heating Co., 138 NLRB 716 (1962), and Florida Steel stated determination to distribute literature regarding Corporation, 231 NLRB 651 (1977). union activity on the premises, under the limitations Upon the foregoing findings of fact, conclusions of carved out by Board law. I find, therefore, that by this law, and upon the entire record and pursuant to Section treatment, including the disciplinary letters and loss of 10(c) of the Act, I hereby issue the following recom- pay imposed upon Ray for his refusal to paint the loft, mended: the Company violated Section 8(a)(3) and (1) of the Act. ORDER :2 CONCLUSIONS OF LAW The Respondent, Inland Steel Company, East Chica- 1. Inland Steel Company is an employer engaged in go, Indiana, its officers, agents, successors, and assigns, commerce within the meaning of Section 2(6) and (7) of shall: the Act. 2. Local 1010, United Steelworkers of America, AFL- 22 In the event no exceptions are filed as provided by Sec. 102.46 of CIO, is a labor organization within the meaning of Sec- the Rules and Regulations of the National Labor Relations Board, the tion 2(5) of the Act. findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and 3. The Company violated Section 8(a)(1) of the Act by become its findings, conclusions, and Order and all objections thereto threatening its employees with more rigid working con- shall be deemed waived for all purposes. INLAND STEEL COMPANY 201 1. Cease and desist from: manner set forth for loss of earnings in the section of this (a) Threatening employees with more rigid working Decision entitled "The Remedy." conditions because they seek to vindicate a collective- (d) Remove and expunge the two disciplinary warn- bargaining agreement by pressing grievances or by other ings issued to employee Dale Ray on December 4, 1978, concerted activity protected by Section 7 of the Act. and make him whole for any loss of pay he may have (b) Reducing lunch breaks, eliminating washup time, suffered as a result of his refusal to perform painting on or otherwise imposing more onerous conditions of em- December 2 and 3, 1978, in the manner set forth for loss ployment on employees because their fellow employees of earnings in the section of this Decision entitled "The are processing a grievance under a collective-bargaining Remedy." agreement between the Company and Local 1010, (e) Preserve and, upon request, make available to the United Steelworkers of America, AFL-CIO, or any Board or its agents, for examination and copying, all other labor organization. payroll records, social security payment records, time- (c) Discouraging the filing and processing of griev- cards, personnel records and reports, and all other re- ances under a collective-bargaining agreement or other cords necessary to analyze the amounts of backpay due union activity on behalf of Local 1010, United Steel- under the terms of this recommended Order. workers of America, AFL-CIO, or any other labor or- workers of America, AFL-CIO, or any other labor o- .(f) Post at its East Chicago, Indiana, plant copies of ganization, by discriminating against its employees in the () Post atchd notice marked "Appendiana, plant copies of assignment or scheduling of work or by other changes in the attached noticerms provided by th e Regional Director wages, hours, or conditions of employment, said notices on forms provided by the Regional Director (d) In any like or related manner interfering with, re- for Region 13, after being duly signed by the Company's straining, or coercing employees in the exercise of the representative, shall be posted by the Company immedi- rights guaranteed them in Section 7 of the Act. ately upon receipt thereof and be maintained by it for 60 2. Take the following affirmative action which is consecutive days thereafter in conspicuous places, in- deemed necessary to effectuate the policies of the Act: cluding all places where notices to employees are cus- (a) Rescind General Foreman Robert Sanger's an- tomarily posted. Reasonable steps shall be taken by the nouncement of on or about July 20, 1978, and his pub- Company to insure that said notices are not altered, de- lished statement of rules regarding lunch periods and faced, or covered by any other material. hours of employment which was posted on or about July (g) Notify the Regional Director for Region 13, in 21, 1978, in No. 11 Coke Battery and restore to the me- writing, within 20 days from the date of this Order, what chanical employees of that department their practices re- steps have been taken to comply herewith. garding lunch hours and washup time as they existed IT IS FURTHER ORDERED that that portion of the prior to July 21, 1978. amended complaint which alleges that the Company vio- (b) Remove all disciplinary warnings and rescind all lated Section 8(a)(4) of the Act be, and it hereby is, dis- money penalties and other disciplinary action imposed on missed. the mechanical maintenance employees of No. 11 Coke Battery, who on or about July 20, 1978, exercised their established practice of taking a 15-minute washup period at the end of their shift. 2: In the event that this Order is enforced by a Judgment of a United (c) Make whole the employees who suffered loss of States Court of Appeals, the words in the notice reading "Posted by pay on or about July 20, 1978, because they took a 15- Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an minute washup period at the end of their shift in the Order of the National Labor Relations Board."