Unites States Steel Corp.

UNITED STATES STEEL CORPORATION United States Steel Corporation and Frank Larimer. Cases 6-CA-12188 and 6-CA-12395 December 5, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENEI.LO, AND TRUESDALE On November 27, 1979, Administrative Law Judge Joel A. Harmatz issued the attached Deci- sion in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, and the Respondent filed a brief in response to the Charging Party's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recom- mended Order, as modified herein. The Administrative Law Judge found, inter alia, that by suspending and discharging employee Frank Larimer, Respondent did not violate Section 8(a)(1) and (3) of the Act, and did not violate Sec- tion 8(a)(l) by threatening to discipline Larimer for looking at Occupational Safety and Health Admin- istration (OSHA) regulations during working time. For the reasons set forth below, we adopt the former findings, but reverse the latter.' The Threat The record establishes that on the morning of February 11, 1978,2 Larimer was away from his work station and was discussing a possible OSHA safety violation regarding a crane on which two other employees, Light and Rosser, were sched- uled to work. In the course of this discussion, Foreman Wielgoleski approached Larimer and asked him what he was doing. Larimer replied that he was advising the men of a violation of the OSHA safety rules. During the ensuing conversa- tion, according to the credited testimony, Wielgo- leski told Larimer that he (Wielgoleski) would send Larimer home if Wielgoleski ever caught Larimer reading the OSHA booklet on company time. The Administrative Law Judge found that this state- ment was not unlawful, concluding that Wielgoles- ki's statement was directed toward Larimer's con- duct which was disruptive of his and other em- I No exceptions were taken with respect to the Administrative Lass Judge's other findings. 2 All dates are 1978 unless otherwise indicated 253 NLRB No. 83 ployees' work, and, in the context in which it was made, did not impair any rights to engage in pro- tected concerted activity. We disagree. We find Wielgoleski's threat to dis- cipline Larimer was overly broad and hence un- lawful because it was not confined to a warning to Larimer that he was not to be away from his work station during worktime. Instead, it was an unquali- fied warning that Larimer faced punishment if he again looked at the OSHA booklet during "Com- pany time." Since "Company time" would encom- pass periods of time, such as lunch breaks, when employees clearly could not be lawfully disciplined for reading OSHA booklets, Wielgoleski's threat necessarily coerced Larimer and the other employ- ees who overheard it in the exercise of their Sec- tion 7 rights.3 The Suspension and Discharge According to the credited testimony, Larimer was observed on March 8 using a telephone away from his work station. Supervisor Bucci attempted to meet with Larimer, but Larimer refused when Bucci would not inform him of his reasons. 4 As a result of Larimer's refusal to meet with Bucci, Re- spondent decided to suspend Larimer for 5 days and prepared a suspension slip which Bucci was to give Larimer on the following day. The Adminis- trative Law Judge found, and we agree, that the suspension was decided upon and was leveled solely at employee misconduct of an aggravated nature; i.e., insubordination. On March 9, Bucci told Larimer that he wanted to see Larimer in the office. Larimer again refused to go unless Bucci disclosed the purpose of the meeting. This time, however, Larimer stated that he wanted his union representative present. Bucci told Larimer that he did not need his representa- tive and, after Larimer again refused to go to the office, Bucci handed him the suspension slip. On March 15, Respondent discharged Larimer.s The Administrative Law Judge found, and we agree, that it was Larimer's repeated refusal to meet with Bucci on March 9 that led to his dis- charge on March 15, and that the discharge was not in derogation of Larimer's Weingarten rights.6 We find Roadway Express, Inc., 246 NLRB No. 180 (1979), controls the instant case. In Roadway, we stated that an employer does not first have to a For the reasons stated by the Administrative Law Judge. Member Penello would dismiss this portion of the complaint. 4 The Administrative Law Judge found that Larimer did not ask for a union representative on March 8 ' Pursuant to a grievance settlement, the discharge was converted to a 37-day suspension. There is no contention that the Board should defer to this resolution of the grievance 6 .L.R v. J Weingarten. Inc.. 420 U S. 251 (1975) 593 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assure an employee that his union representative will be present at a meeting in order to induce the employee to leave the plant floor. Thus, if the em- ployer, as here, asks the employee to leave the pro- duction area to go to another location, the employ- ee acts at his or her peril if he or she declines to do so. Here, Larimer's refusal to report to the office as directed by Bucci clearly undermined Respondent's rights to maintain discipline and order and was therefore unprotected. 7 Accordingly, we find that the discharge of Larimer for his March 9 refusal to report to the office was not in violation of the Act. 8 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, United States Steel Corporation, Dravosburg, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraphs l(b) and (c): "(b) Threatening to discipline employees for en- gaging in protected concerted activity related to job safety. "(c) In any like or related manner interfering with, restraining, or coercing our employees in the exercise of the rights guaranteed them under Sec- tion 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. I Member Jenkins agrees with the result, but relies solely on Baton Rouge Water Works Company, 246 NLRB No. 161 (1979) He would find that Larimer had no right to a union representative at the March 9 meet- ing because the purpose o that meeting was simply to impose previously determined discipline. He adheres to his dissent in Roadway Express. supra I In the absence of exceptions, we adopt the Administrative Law Judge's remaining findings and conclusions APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. Accordingly, we give you these assurances: WE WIIL NOT threaten our employees with discipline because they have elected to distrib- ute literature in nonworking areas on non- working time in support of their candidacy for union office. WE WILL NOT threaten our employees with discipline for engaging in protected concerted activity related to job safety. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights defined in Sec- tion 7 of the Act. UNITED STATES STEEL CORPORATION DECISION STATEMENT OF THE CASE JOEl. A. HARMATZ, Administrative Law Judge: This consolidated proceeding was heard in Pittsburgh, Penn- sylvania, on September 12, 1979, pursuant to an order issued by the Regional Director for Region 6, on July 26, 1979, whereby the separate complaints in Cases 6- CA-12188 and 6-CA-12395 were consolidated. That in Case 6-CA-12188 was issued on May 29, 1979, upon an unfair labor practice charge filed on March 20, 1979, and alleged that Respondent independently violated Section 8(a)(1) of the National Labor Relations Act, as amended, by threatening employees with discipline if they contin- ued to engage in protected activity, by denying an em- ployee's request for union representation in connection with meetings which said employee feared reasonably would result in disciplinary action, and by denying em- ployees the right to engage in distribution of union litera- ture in nonwork areas, on nonworktime. The complaint further alleged that Respondent violated Section 8(a)(3) and (1) of the Act by suspending, discharging, and refus- ing to reinstate employee Frank Larimer because he en- gaged in union and other protected activity. On July 26, 1979, the complaint in Case 6-CA-12395 issued upon an unfair labor practice charge filed on May 21, 1979, and alleged that Respondent violated Section 8(a)(1), (3), and (4) of the Act by removing employee Frank Larimer from his former position and transferring him to another job because Larimer had engaged in protected concerted activity and had filed charges under the Act. In its duly filed answers, Respondent denied that any unfair labor practices were committed. Following close of the hear- 594 UtNITEI) STATES STEEL CORPO(RATION ing. post-hearing briefs were submitted on behalf of the General Counsel and Respondent. Upon the entire record in this proceeding, including my opportunity to observe directly the witnesses while testifying and their demeanor, and following considera- tion of the post-hearing briefs, I find as follows: FININS OI FACI I. JURISI)II ION Respondent is a Delaware corporation with a facility known as the Irvin Works, located in Dravosburg, Penn- sylvania, where it is engaged in the manufacture and nonretail sale of steel and related products. In the course and conduct of said operations, Respondent purchased and received materials at its Irvin Works valued in excess of $50,000, directly from suppliers located outside the Commonwealth of Pennsylvania. The complaint alleges, the answer admits, and I find that Respondent is now, and has been at all times materi- al herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. 'rI I .ABOR ORGANIZArION INVOLVID The complaint alleges, the answer admits, and I find that United Steel Workers of America, Local 227, AFL- CIO-CLC, herein called the Union, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Ill. I'Ht Al -(G; 1) UINIAIR IABOR PRACICtUS A. Background In this case the General Counsel charges Respondent with ongoing interference with the statutorily protected rights of Frank Larimer, an employee with 21 years' service, including 15 years at the manufacturing complex known as the Irvin Works. Larimer and fellow produc- tion and maintenance employees at Irvin have been rep- resented by the Union for many years. The current col- lective-bargaining agreement was entered on August 1, 1977, and has a scheduled expiration date of August 1, 1980. Larimer was assigned to the central maintenance division, manned by some 600 employees. The total work force at Irvin numbered some 3,600 employees. His duties, prior to the events in issue here, involved the in- spection and repair of overhead cranes at a grade 16 pay level. During the period preceding the events in issue here, Larimer manifested a frequent concern for safety in the plant, having filed three complaints with the Occupation- al Safety and Health Administration of the United States Department of Labor (OSHA). In this connection, it is alleged that Respondent violated Section 8(a)(l) by t1reatening several employees, including Larimer, with reprisals unless they refrained from discussing OSHA regulations. Larimer also manifested a keen interest in enforcing contractual rights evidenced by his filing of a number of grievances, certain of which ultimately were resolved through final and binding arbitration. In addi- I Errors in the transcrlpl hasec been noted and art hereby rlcted tion, on March 7, 1979,2 Larimer opened a campaign for union office. In this regard, it is alleged that Respondent violated Section 8(a)(1) of the Act by unlawfully inter- fering with Larimer's right to engage in distribution of campaign literature in support of his candidacy. However, from the standpoint of remedy, the major issues open with the March 9 suspension of Larimer and his discharge on March 15. a The General Counsel con- tends that the discharge and suspension violated Section 8(a)(1) and (3) of the Act on various proscribed grounds. First it is claimed that said discipline was motivated by Larimer's insistence upon union representation at a meet- ing requested by his supervisor under conditions where- by Larimer reasonably believed that said meeting would result in disciplinary action against him. Thus, the Gen- eral Counsel argues that discipline for such reasons vio- lates the principle enunciated in N.L.R.B. v. J. Weingar- ten, Inc., 420 U.S. 251 (1975), and hence violated Section 8(a)( I) of the Act. In addition, the General Counsel con- tends that this action against Larimer violated Section 8(a)(3) and (1) of the Act inasmuch as Respondent was motivated by Larimer's engaging in other protected ac- tivity including the filing of grievances, processing of grievances to arbitration, filing complaints with OSHA, and participating in OSHA inspections. The foregoing does not end the violations with which Respondent is charged. Larimer grieved the suspension and discharge and apparently, on or about April 1, that grievance was settled. Pursuant thereto, the 5-day sus- pension and discharge was converted to a 37-day suspen- sion. Larimer was allowed to protest this 37-day suspen- sion under another pending grievance, 4 and was reinstat- ed to his former classification grade 16 level in central maintenance on April 18. On May 2, on the heels of a safety dispute involving General Foreman Heflin, the latter reassigned Larimer to duties other than inspection and repair work on cranes in operating areas. The Gen- eral Counsel contends that this reassignment constituted a further act of discrimination and violated Section 8(a)(1), (3), and (4) of the Act since it was motivated by Larimer's union and protected activity, and because Lar- imer had filed unfair labor practice charges and partici- pated in an investigation thereof in the instant case. B. Concluding Findings 1. The events of February 11 The complaint alleges that Respondent violated Sec- tion 8(a)(l) of the Act through a threat attributed to Foreman Eugene Wielgoleski that employees would be disciplined if they engaged in protected activity. In sup- port of this allegation, the General Counsel adduced tes- timony from Larimer and fellow employee Sidney Light. Thus, Light testified that the incident occurred on a I All dates refer In 1979 unless otherwise indicated. a See (; C Exh. 9(a) For the conversion of that suspension to a dis- charge, effective March 15, 1979. See G.C Exh. 9(b). 4 See G C Exh 3. There is no claim or contention on behalf of the Respondent that this resolution of the grievance pertaining to a segment of the instant unfair labor practice complaint constitutes a final disposi- tion as to hich the Hoard should take cognizance under the Spielberg guidelins [.Sprlhcrg .Munu/acruring Compuany, 12 NLRB 1080 (1955) ) 595 DECISIONS OF NATIONAL LABOR RELATIONS BOARD morning marked by extreme cold. He, together with his helper, Wallace Rosser, was assigned to work on a semi- gantry crane. Prior to commencing work, Light and Rosser were in the cab of the crane attempting to warm up. Before Light and Rosser departed to perform their assigned tasks, Larimer entered the cab, advising the men that he possessed an OSHA booklet and that the gantry crane was in violation of OSHA's safety rules in that the entry steps were too far from the ground. In the course of that discussion, Foremen Wielgoleski and Bucci ar- rived on the scene. Wielgoleski asked Larimer what he was doing on the gantry crane, and the latter indicated that he was advising the men of a violation of the safety rules. During the ensuing conversation, according to the testimony of Light, Wielgoleski told Larimer that he would send him home if he ever caught him reading the OSHA booklet on company time.' After this, Larimer continued to his job on "an overhead crane in the imme- diate area."' This entire incident took place after Light, Rosser, and Larimer received their work assignment for the day and during working time. Light's testimony establishes that Larimer was not assigned to work on the crane on which he was found by Wielgoleski that morning. Not- withstanding the variation in testimony of Light and Larimer concerning the precise words used by Wielgo- leski on that occasion, from the context it was apparent to all that his warning was addressed to conduct on the part of Larimer disruptive of his own and the work re- sponsibility of others during a period when the Company could rightfully expect the employees to have been en- gaged in the performance of their assigned duties. As such, his threat did not impair any protected rights to engage in activity on nonworking time in connection with safety. Accordingly, Wielgoleski's remarks were not violative of Section 8(a)(1) of the Act. 7 2. The alleged improper interference with distribution on March 8 On March 7, Larimer began distributing literature in support of his campaign for election to department griev- ance man. Among the areas in which Larimer distributed these materials was a "shop area," a location which from time to time bore the characteristics of both a work and a nonwork area. It was in this area that on March 8, 1979, Larimer was approached by Turn Foreman Dennis Bucci and General Foreman Robert Heflin. In this con- nection, Heflin testified that, on March 7, he observed Larimer distributing campaign literature in this same area 5 ILarimer's version of the Wielgoleski threat was to the following effect: "If I catch you with that OSHA book anymore during working hours, you are going home . . . you are working for U.S. Steel, not for OSHA." 6 It is the sense of Light's testimony that Larimer was not assigned to the crane on which the above incident took place. Larimer claimed he was so assigned. As between them, I prefer Light. Larimer was an unreli- able witness. 7 As indicated Larimer was not a trustworthy witness. I discredit his self-serving and highly unlikely testimony that his duties as an inspection repairman included enforcement of OSHA standards. At the same time, Wielgoleski could not recall threatening Larimer or any other employee with discipline. The testimony of Light, an incum- bent employee with no apparent interest in the outcome. is credited to the extent in conflict. both before and after his shift's end. Heflin claims to have obtained clarification of Respondent's policy on passing out campaign literature and then, on March 8, to have informed Larimer s that he is not authorized to pass out campaign literature in the mill on company time.9 Respondent in its brief concedes that Heflin's state- ment in this regard was broad and unlawful. Nonethe- less, Respondent urges that any violation arising there- from was at best technical, and fails to warrant a remedi- al order. I disagree. Prior unfair labor practice charges against Respondent alleged an overly broad restriction upon rights of employees to distribute literature on behalf of their candidacy in internal union elections. That unfair labor practice charge was resolved by a settlement which included the posting of a notice defining the con- ditions and circumstances under which employees could rightfully engage in such activity within the confines of the plant.o' Upon Heflin's own testimony that he checked to clarify Respondent's policy with respect to such distribution, and from Heflin's subsequent action, it is apparent that the notice posted under the settlement agreement did not have universal reach and that certain of Respondent's managers are still in the dark with re- spect to their statutory obligations in this regard. These circumstances negate Respondent's plea that no remedy is warranted with respect to this issue. Accordingly, I find that Respondent violated Section 8(a)(1) of the Act by orally promulgating a limitation on distribution which was sufficiently broad to preclude an employee from dis- tributing literature in a nonworking area, on his own time. 3. The suspension and discharge On March 9, Larimer was given a 5-day suspension subject to discharge for insubordination. On March 15, the suspension was upgraded to a discharge. " As for the events giving rise thereto, General Foreman Heflin cre- dibly testified that on March 8, 1979, another foreman, one Janeski, informed Heflin that Larimer had been ob- served in his area on two different occasions using the telephone. Janeski asked Heflin if he knew the reason for this, mentioning that he overheard Larimer refer to the Union while on the telephone. The telephone was locat- ed in an area somewhat remote from Larimer's place of I credit Heflin's testimony that he observed Larimer engaged in the distribution of said literature prior to 3:45 p.m and during time when Larimer was supposed to be working L.arimer's own testimony. as well as documentation offered by the General Counsel in his behalf, manifests his propensity to appropriate working time for his own pursuits. 9 Heflin defined "company time" as including the entire shift for which employees are paid, a definition which would include break periods and other nonworking time. 1o See G.C. Exh. 2 1 Under the applicable collective-bargaining agreement Respondent could not have effected a discharge at the time Larimer was placed on a 5-day suspension. Sec. 8(e) thereof provides as follows An employee shall not be peremptorily discharged. In all cases in which management may conclude that an employee's conduct may justify suspension or discharge, he shall be suspended initially for not more than 5 calendar days, and given written notice of such action In all cases of discharge, or of suspension for any period of time, a copy of the discharge or suspension notice shall he promptly fur- nished such employee's grievance committeeman See G.C. Exh. 6. 596 UNITED STATES STEEL CORPORATION work that day. Heflin went on to testify, with corroba- tion from Turn Foreman Bucci, that he instructed Bucci to inquire of Larimer as to the reason for his presence and nis use of the phone on that occasion as reported by Janeski. That afternoon, toward the end of his shift, as Larimer was returning to the shop area, he passed Bucci, his im- mediate supervisor that day. Bucci called him, and Lar- imer asked, "What do you want?"12 Bucci, beckoning with his finger, motioned Larimer to come to him, and stated, "I want to see you here over here." Larimer re- plied no, demanding that, if Bucci wanted to speak to him, he could do so where Larimer wished, so that others could hear, including a particular employee whom Larimer identified as a witness whom he wished pres- ent. 13 Larimer again, without success, sought from Bucci his reason for wanting to talk, and then told Bucci that he had to put away his tools and complete a lube report. Contrary to Bucci's directions, Larimer then left the area to stow his tools. Bucci followed, advising Larimer that he wanted to see him in the office.L 4 At this point Bucci left for the office, stating, "I'm going back to the office, and you had better be there." Larimer did not abide, but instead went to another area where he began to complete a lubrication report. General Foreman Heflin was in that area.t1 Bucci then appeared and in Heflin's presence, stated to Larimer, "I thought I told you to come back into . . . [the] office." Larimer asked again what Bucci 12 I credit Bucci's testimony that. on such occasions, it was his policy to address employees privately. 1a That individual was not identified as a union agent or representa- live. While it is true that in Anchortank. Inc.. 239 NLRB 430 (1978), there is an ever so faint suggestion that Weingarren fails to distinguish between a request for representation by a "fellow employee" and a request for representation by a union representative. I interpret such dicta as limited to the context of unorganized employers. Any other interpretation would do violence to the exclusive status enjoyed by the statulory representa- tive pursuant to the policies of the Act. " Larimer testified that Bucci directed him to "Heflin's office." Bucci denied mentioning Heflin specifically, and claims that he simply told Lar- imer that he wanted to see him in "the office.' As a turn foreman, Bucci did not have his own office, but shared such facilities with other fore- men. I have heretofore indicated my mistrust of Larimer. Between Lar- imer and Bucci, I regard the latter as more credible. I did, however, have doubts concerning Bucci's testimony that it was his belief that Larimer only inquired once as to the purpose of the discussion Otherwise the above is derived from a composite of the believable testimony of Bucci and Larimer. 1s Contrary to the testimony of Larimer, I credit Heflin and find that he did not witness the earlier confrontation between Bucci and Larimer and that his first immediate contact with either took place when Larimer attempted to complete his lube report. In this connection, it is noted that Larimer omitted from his accounting of the sequence of events any refer- ence to an encounter with Heflin at that time. It was not until cross-ex- amination that it was elicited by Respondent's counsel that, when Lar- imer went to the desk to makce out his lube report, Heflin was in that area scraping another employee's (Bonn) campaign sticker off a glass bulletin board. Larimer, somewhat grudgingly, admitted that he observed this, and that he "mentioned" at that time that ". . . it looks like Heflin can't take it, he's taking Bonn's slicker off." Parenthetically it is noted that I credit Heflin's testimony that Larimer made these statements in a loud voice to a number of employees; I discredit Larimer's claim that he merely "whispered" the jibe. In any event, Larimer's omission of this in- cident from his original account impressed me as hardly inadvertent, for it enshrouds with improbability his testinmony that Heflin observed the earlier confrontation between him and Bucci. It seems entirely unlikely that Larimer's next encounter with Heflin would have been marked by such tactlessness had he known that Heflin actually witnessed the earlier incident wished to discuss. At which point Heflin said, "Are you refusing your foreman's directive to meet him back in his office...." Larimer responded, "I'm asking what is to be discussed, I think I have a right to know what is to be discussed .... " Larimer then asked Heflin directly "By the way what is it that you have to discuss." To this Heflin said, "We will think of something." At this juncture a highly material conflict in testimony emerges. Larimer claimed that he told Heflin ". . . in that case, I want a grievance man, or an assistant griev- ance man." To this, according to Larimer, Heflin said that he did not have such a right, and that Larimer re- sponded that he did. Bucci testified that, in the course of this entire transaction, Larimer, while having asked for a "witness" earlier, did not at any time on March 8 request a union representative. Hefnin corroborated Bucci to the extent possible. Passing this conflict for the moment, it is clear that Larimer left work that day, denying Bucci the opportu- nity to talk to him privately. The next day, March 9, at the close of the shift, Bucci approached Larimer and told him he wanted to see him in the office of Foreman George Koch. Larimer in- formed that he would repeat his question of the day before; namely, what did Bucci want to discuss. Bucci then instructed him to go to Koch's office. Larimer re- plied, according to his own testimony, "I told you yes- terday, until you can tell me what it is you have to dis- cuss, I'm not going into George Koch's office .... " Ac- cording to Bucci, at this point Larimer for the first time requested union representation, whereupon Bucci indi- cated that it was not necessary. Bucci again directed Larimer to the office and, when the latter again refused, Bucci told him that he was again being insubordinate, and could receive further discipline for this. Bucci then gave Larimer a discipline slip that had been prepared previously, advising that this was for Larimer's insubor- dination of the day before. That slip provided for a 5-day suspension subject to discharge. 1 6 As heretofore indicat- ed, on March 15 the suspension was converted to a dis- charge. With respect to the General Counsel's claim that the discipline was motivated by Larimer's union activity and/or his protected conduct in the form of grievance filing and OSHA citations, the record does not convinc- ingly establish that Respondent's action in this regard was based upon anything other than what had transpired between Larimer, Bucci, and Heflin on March 8. His ac- tions on that date, even under his own account, entailed a highly provocative display of insubordination, resulting in complete frustration of his foreman's instructions. Any assumption that this conduct was merely asserted as pre- text to mask a disciplinary reprisal for Larimer's past ef- forts to enforce the contract or insure compliance with OSHA standards is so lacking in substantiation on this record as to amount to reversal of management judgment on little more than abstraction. Thus the timing of the discipline in relation to past arbitrations and OSHA cita- 16 See G.C Exh. 9(a). " See G C. Exh. 9(b) 597 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions is not suspect, 8 and evidence of animus with re- spect to such activities was not convincingly established on the record.'s Also lacking is evidence that Respond- ent condoned conduct similar to that manifested by Lar- imer on March 8, with respect to any other employee. In sum, I find that the General Counsel failed to establish by a preponderance of the record that the action taken against Larimer on March 9 was in any manner related to his union activity, to his past efforts to enforce the contract through the grievance procedure, or to his OSHA complaints. Yet the inquiry proceeds, for the General Counsel contends that the suspension and discharge violated Sec- tion 8(a)(l) of the Act since the discipline interfered with Larimer's protected right to insist upon union representa- tion. In N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975), the Supreme Court approved Board policy to the effect that the Act, by virtue of Section 7 thereof, guar- antees employees the right to union representation at an interview required by an employer if(I) the employee re- quests such representation and (2) if he reasonably be- lieves the investigation will result in disciplinary action against him. Respondent argues that neither of these con- ditions was met herein. In addition, Respondent observes that the subsisting collective-bargaining agreement af- fords employees union representation only where re- quested to meet with managers other than their immedi- ate supervisor and, based thereon, argues that the right to union representation asserted by Larimer herein has 18 With respect to Larimer's grievance activity, the record does not evidence that he had filed a grievance, except as to the matters involved in this proceeding, at any time since August 22, 1978. The most recent arbitration involving a grievance filed by Larimer resulted in an award issued on January 10, 1979, which upheld the Employer's position in denying the grievance. With respect to his OSHA involvements, it ap- pears that Larimer initiated action by that agency on three occasions, once in 1975, once in September 1978, and again on February 13, 1979 OSHA citations did result from this latter complaint, but they were not issued until after his suspension. '1 The General Counsel adduced testimony from employee George E Murr, Jr., in an apparent effort to establish that Larimer was victimized by harassment of his supervisor. Murr's testimony was vague and in part based upon uncorroborated hearsay yet, even if accepted as proof that Respondent's foremen did not view Larimer hospitably or with a spirit of cooperation, that to which Murr attests was not specifically linked to any protected activity. I am mindful of no principle under this Act warrant- ing a presumption that negativism by supervisor toward an employee, perforce, must have been derived from the latter's exercise of Sec. 7 rights. Donald Conn. another employee called by the General Counsel, testi- fied to an incident in September 1978. He claims that, while en route to meet an OSHA inspector, he confronted Larimer who showed him a box of garbage, and claimed that he had been instructed by his foreman and general foreman to clean the shop up and that they did not allow him to use a shovel and broom but instructed him to clean up by hand. Conn asked Larimer if he was interested in filing a grievance; Larimer de- clined. Conn subsequently confronted Heflin with what he had learned from Larimer, and Heflin admitted that he told Larimer to pick up the garbage by hand because Larimer would not be there long enough to use a broom and shovel. No elaboration was sought as to the somewhat neb- ulous remark Conn attributes to Hellin. Considering all the circum- stances, I am not entirely convinced that Heflin's statement constituted an admission that Larimer was being abused by the assignment in question. In any event, here again, no nexus has been demonstrated with any pro- tected activity. been surrendered through express waiver during the col- lective-bargaining process.2 0 On the critical question of whether Larimer actually requested union representation prior to the invocation of the discipline against him, I was inclined to believe the testimony of Bucci and Heflin to the effect that no such request was made on March 8. I credit Bucci that the first such request was made on March 9, after the deci- sion had been made to issue the suspension subject to dis- charge.2t Thus, on the credible evidence, I find that, prior to any request by Larimer for union representation, he frustrated his supervisors' directives under conditions beyond the protective ambit of Wcingarten. 2 2 In addi- tion, I find that the suspension was decided upon and, without intercession of Section 7 rights, was leveled solely at employee misconduct of an aggravated nature. Apart from the foregoing, which alone is dispositive, re- liance upon Weingarten, at least with respect to the sus- pension, is misplaced on other grounds as well. For, con- sidering the objective circumstances, there is no basis for concluding that Larimer on March 8 held a reasonably based belief that discipline would follow the meeting sought by Bucci. Although Larimer afforded a quantum of subjective testimony as to his state of mind and the reason for his claimed apprehension, his lack of credulity and the Supreme Court's admonishment against defer- ence to subjective testimony 23 eliminate its probative value. Nor do I find persuasive the General Counsel's contention that Heflin's warning earlier on March 8 that discipline would follow if Larimer engaged in distribu- tion of campaign literature on company property fur- nished an objective foreground from which such a belief should be inferred. After this warning, Larimer is not shown to have engaged in distribution violative of He- flin's instruction, and hence this earlier warning stands in isolation as a mere communication of what was expected of Larimer, and hardly gives rise to a reasonably based assumption that this would be the subject matter of the conversation requested by Bucci. In sum, I find that the General Counsel has failed to establish that the suspen- sion of Larimer, based upon his misconduct of March 8, interfered with rights conveyed to employees by virtue of the pronouncements in Weingarten. 20 See G.C. Exh 6, Sec 8 B, marginal par. 8 7, p 43 In view of my ultimate disposition, the "waiver" issue does not affect the result and that issue need not be reached. 21 Contrary to the General Counsel the description of the events of March 8, 1979, appearing in Resp. Exh 2 does not require rejection of the testimony of Bucci and Heflin in this respect, which I believed. That document consists of "minutes" of a third-step grievance meeting. As minutes it would naturally consist of a summation of facts developed at the particular grievance session covered. However, at that proceeding, the only witnesses called were those offered in support of the grievance Neither Bucci nor Heflin testified at that grievance meeting or otherwise appeared. There is no evidence that they affirmed or adopted the content of those minutes On the other hand, Larimer was a highly unreliable witness. His tendency to afford argumentative and patently untrue testi- mony is established throughout this record. Further, in this respect, it is noted that an affidavit prepared by Larimer shortly after March 9 makes no mention of any request for union representation. See Attachment 3 to Resp. Eh 2. 22 See Lennox Industries. Inc., 244 NLRB 607 (1979): "IT]The right to · . assistance at an interview where discipline is reasonably feared is triggered only upon a request for such representation." 23 See N.L.R.B. v Weingaren, supru, at fn 5 598 UNITED STATES STEEL. CO)RPORATION However, the discharge of March 15 turns upon other considerations. There is no evidence that Respondent was of a mind automatically to convert the suspension to a discharge upon expiration of the 5-day contractual period required for such discipline. On the contrary, on March 9, before Bucci delivered the suspension notice, he threatened Larimei with further discipline, a gesture hardly indicative of a present disposition to terminate. Furthermore, the suspension notice on its face mentioned discharge only in terms of possibility. On the entire record, I find that it was Larimer's repeated refusal to meet with Bucci on March 9 that led to his discharge on March 15. Unlike the predicate for the decision to suspend, it will be recalled that Larimer did, during the March 9 con- frontation, request union representation. However, not- withstanding said request, no meeting transpired, and Bucci simply delivered the discipline. From my view of the precedent, whether the subse- quent discharge involved an unlawful interference with Weingarten rights turns critically upon the subject matter of the private meeting requested by Bucci on March 9. For Weingarten has no universal application to all meet- ings between employees and supervision. The Board, at least in principle, has adhered to the view that "Weingar- ten should not be read to require a right of representa- tion when the interview is simply to inform the employ- ee that he is being disciplined." 'V.L.R.B. v. Certified Grocers of California Ltd., 587 F.2d 449 451 (9th Cir. 1978); Alfred M. Lewis, Inc. v. N.L.R.B., 587 F.2d 403 (9th Cir. 1978). This is confirmed by two recent Board Decisions, wherein it was held that a supervisor did not violate Section 8(a)(l) by denying an employee request for union representation where, in denying the request, the supervisor simply informed the employee of disci- plinary measures already decided upon, while engaging in no type of "interchange which could be characterized as an interview." See Amoco Oil Company, 238 NLRB 551 (1978); and K Mart Corporation, 242 NLRB 855 (1979). Consistent with the foregoing, it was the General Counsel's burden to establish that, on March 9, Larimer's disobedient refusal to repair with Bucci to the privacy of an office actually involved the avoidance of discussion that could fairly be characterized as an interview. Absent such proof, the Act does not intercede to insulate Lar- imer from discharge in consequence of his persistent re- fusal to obey his supervisor. However, the record is devoid of evidence as to precisely what was to transpire at any such meeting. I am unwilling to infer that Bucci remained concerned with the investigation of Larimer's presence in Janeski's work area and his use of the tele- phone. Larimer's serious misconduct on March 8 in re- fusing to meet with Bucci would likely eclipse that rela- tively minor matter, and I am not convinced that Bucci wished to extend his probe of the former in any encoun- ter with Larimer on March 9. On the other hand, since the suspension had been previously decided upon, and as the facts on which that discipline was based occurred in the presence of Bucci, the more likely inference is that he directed Larimer to the office on March 9 for the lim- ited purpose of communicating said discipline in privacy. Accordingly, the General Counsel has failed to establish that Bucci instructed Larimer to go to the office of Fore- man Koch to engage in an investigatory interview or for any purpose other than to deliver the predetermined dis- cipline. Hence, the latter's request for union representa- tion was outside the protective gloss of Weingarten and the discharge based solely upon an insubordinate refusal to adhere to supervisor's command was not violative of Section 8(a)(l) of the Act. I so find. 4. The post-discharge interference with distribution Following his discharge, Larimer continued his cam- paign in quest of union office. Pursuant thereto, on March 28, Larimer appeared on company premises in an area proximate to Respondent's guardhouse. While dis- tributing his campaign literature, he was approached by a guard sergeant who examined the material he was dis- tributing and then asked Larimer to come to his office. Larimer did so, and the guard made a telephone call, in which he was informed that Larimer had been dis- charged and was no longer employed by U.S. Steel. The guard informed Larimer that, as a nonemployee, he was not permitted to distribute literature without first obtain- ing clearance. On March 29, Larimer sought to obtain clearance from Herb Ellis, Respondent's superintendent of employee relations. Ellis declined, and Larimer was denied access to plant premises. The General Counsel contends that Respondent there- by violated Section 8(a)(1). I disagree. During the period relevant to this allegation, Larimer was a nonemployee, whose right to engage in otherwise protected activity on company property was subject to the balancing test set forth in N.L.R.B v. The Babcock & Wilcox Company, 351 U.S. 105 (1956), wherein the Supreme Court held that an employer may lawfully impede nonemployee organizers from intruding on its property unless the General Coun- sel proves that no alternative means exist for communi- cating with employees. No effort was made on this record by the General Counsel to establish a right of access under any such test. Instead, the General Counsel challenges Respondent's action as application of a dis- criminatory rule. Thus, the General Counsel relies on testimony of Larimer and employee Donald Conn to the effect that several years earlier "Junior Achievement," apparently a local beneficent organization, passed out metal plates stating, "Irvin Works Buy American." It also appears that, during the congressional election of 1978, a candidate for Congress was on company proper- ty greeting employees as they entered and left the plant. On another occasion, Skoal Chewing Tobacco was ob- served passing out free samples on company property. The General Counsel's evidence in this respect appears isolated and hardly portrays Respondent's premises as a public area on which all persons are freely welcome. As a large employer, Respondent does have community re- sponsibilities and the grant of access to outsiders in fur- therance thereof should not be lightly regarded as the fulcrum by which the right of nonemployees to engage in otherwise protected activity on private property is en- larged. Although I have my doubts as to whether such evidence offers a material basis for challenging an em- 599 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer's assertion of rights as against nonemployees,2 4 that which exists hardly reflects the degree of wide- spread access necessary to substantiate that Larimer was the object of disparate application of Respondent's policy. 25 Accordingly, I find that Respondent did not violate Section 8(a)(1) of the Act by precluding Larimer from engaging in distribution of campaign material on company property during the period of his discharge. 5. The post reinstatement discrimination On March 28, Larimer initiated a contractual griev- ance in connection with his suspension and termination. As heretofore indicated, as of April 11, that grievance was settled under conditions providing for, inter alia, re- instatement of Larimer without backpay. Larimer re- turned to work on April 18. The complaint alleges that, on May 2, Respondent vio- lated Section 8(a)(l), (3), and (4) by removing Larimer from his crane repair and inspection job and assigning him to general repair job duties. On that date, Larimer, with three coworkers, was assigned to perform repair and inspection work in connection with what has been referred to as number 3 crane. The crew, including Lar- imer, went to the crane but, consistent with Respond- ent's practice, Larimer attempted to seek out the fore- man to have him sign a "safe-job procedure card." 26 Upon finding the foreman, John Porter, Larimer ob- tained his signature to the job procedure card and re- quested that Porter provide safety personnel for the cranes operating on either side of the number 3 crane. Larimer claims that he made this request because the crew had to "inspect in and around the tracks of the crane and so forth." Porter advised that safety men would not be provided and referred Larimer to Foreman Ed Fisher. Larimer attempted to contact Fisher by radio but had no success for about an hour. Fisher finally ap- peared, whereupon he was informed by Larimer that no safety men had been provided at crane 3. Fisher told Larimer that, as the cranes were "busy," the crew would not work on crane 3 that day. Accordingly, he instruct- ed the crew to go to crane 25. Parenthetically, it is noted that, during the course of Larimer's efforts to obtain safety men in connection with the inspection work to be performed on crane 3, no work was performed on that crane prior to the crew's reassignment. At this point, according to the testimony of Larimer, the crew went to crane 25. Larimer claims that he again had difficulty finding the foreman in charge of that area to have him sign the safe job procedure card. Being un- successful, Larimer returned to the Number 25 Crane, where he found General Foreman Heflin waiting for him. Heflin told Larimer, "It's past 10 o'clock in the morning . . . no work has been down yet . . . why aren't you up on the crane. ... " Larimer indicated that he had not obtained a signature to the safe-job-procedure card, adding that he had to get safety men for the cranes running on either side of crane 25. Heflin stated that Lar- 24 See, e.g., Hudgens v N L.R.B., 424 U.S. 507 (1976). 25 See, e.g., Uniflite. Inc., 233 NLRB 1108, 1111 (1977), and cases cited at fn. 10 thereof. 2 This card is to be signed by the foreman in the area, apparently to assure that the latter is mindful of the work to be done by the crew. imer did not need safety men and Larimer disagreed. Larimer argued that he had to check in and around the tracks of the crane and underneath the end tie of the crane and that he felt it was necessary to have safety men. To this Heflin argued, "You don't need safety men for inspection," charging that Larimer was refusing to go on the crane. Larimer denied that he was refusing to go on the crane but indicated that he would only work on the walkways and not on the shafts that could turn.27 At this point, Heflin interjected that "bumpers stops"2 8 could be placed on the rails so that the other cranes could not enter the area adjacent to crane 25. Heflin, ac- cording to Larimer, instructed him to get the guards without telling him where they were. Larimer proceeded to look for the guards but never located them. Later that day, Heflin reassigned Larimer to the "mesta spares area." Prior to said transfer, Larimer had performed no work on crane 25 or crane 3 that day. Fol- lowing this reassignment, Larimer continued to occupy and to be paid at the class 16 rate except for an 18-day period during which Larimer was suffering from a physi- cal disability.2 9 While assigned to class 16 work in the mesta spares area, Larimer was regularly assigned duties distinct from those customarily performed by one hold- ing the classification "inspection and repair millwright." His work after May 2 consisted of cleanup, painting, and working in shop repair. Respondent contends that Larimer's reassignment was actuated solely upon Larimer's refusal to meet the condi- tions of his job. In this respect, it is noted that, in early January 1979, the required duties of completing an in- spection report were removed from Larimer's responsi- bility because of his persistent inclusion therein of irrele- vancies, including scurrilous editorialization of job condi- tions. Larimer admits that this occurred and there is nei- ther indication nor claim that this step was taken in reprisal for activity protected by the Act. In testifying as to his reasons for removing Larimer from crane inspec- 27 I discredit Larimer's testimony that he explained to Heflin that he needed a safety man because he would probably have to work on bolts on shafts that could rotate. I mistrusted Larimer generally, who im- pressed me as prone to iject tailored facts to enhance his cause. I believe that the dispute between Heflin and Larimer as to the necessity of signal- men related exclusively to the need for signalmen for the performance of inspection duties and in no way related to possible repair work 28 Bumper stops are rail clamps which, when applied to the rails, phys- ically obstruct passage beyond that point. 29 On May 8, Larimer sustained an on-the-job injury. During the ensu- ing period, Larimer was placed on modified work by company physicians on two separate occasions. Consistent with company policy, it having been determined that the disabling effects of the injuries reduced Lar- imer's work capacity beneath the level of class 16 work, Larinmer was re- duced to a lower paying class 2 position during these periods Other than the incredible, self-serving, and conclusory testimony of Larimer, it does not appear that this treatment was disparate or otherwise suspect I credit Heflin that Larimer was reduced to a class 2 level solely because compa- ny physicians forwarded modified work papers limiting Larimer's walk- ing, standing, bending, and lifting restrictions which did not permit him to perform his class 16 work I also credit the testimony of Heflin that Tom Amen, another employee in the tractor shop who had sustained an on-the-job injury, was not reduced because he was not put on any re- stricted or modified work by company physicians, but simply required daily treatment, after which, Amen was able to perform his regular trac- tor repair functions. Thus, I find that the reduction in rate classification afforded Larimer was based upon legitimate considerations stemming from his disability as determined by company physicians. 600 UNITED STATES STEEL CORPORATION tion and repair work, Heflin referred to this part of Lar- imer's work history, and also pointed out that the May 2 incident occurred against the background of continuing delays, provoked by Larimer through his persistent rais- ing of problems. Heflin observes that it was well known that safety men are not provided for inspections and, de- spite this, Larimer refused to work first on crane 3 and then on crane 25 in the face of this policy. In sum, Heflin described the incident of May 2 as follows, "[It] . . .just reached the limit, that I would rather have him off the inspection crew, and rather have him in the spare parts area, so the rest of the crew could work, it was 10:30 in the morning, and absolutely no work has been per- formed, and that was it . . . because I did not know what delays was going to be next." The General Counsel's contention that this reassign- ment was based on Larimer's union or other protected activity or his action in filing an unfair labor practice charge and assisting in the investigation thereof is based on little more than naked claim. Apart from the reasons specified by Heflin, if this reassignment had any basis in past history, I would find it more closely related to Lar- imer's refusal to abide by his foreman's instructions on March 8 and 9. Further, the intervening adjustment of Larimer's grievance which resulted in his reinstatement is hardly suggestive of a lingering animus based on past grievance actions, arbitrations, or OSHA complaints. In any event, it is concluded that the reinstatement was triggered solely by Larimer's insistence on signal- men as a condition for working on crane 3, and his con- tinued demands for signalmen on crane 25. The position taken by Larimer involved individual action. He neither acted as a spokesman for nor in concert with the other members of his crew in demanding signalmen. This demand was made as a precondition for the performance of the preliminary task of inspection.3 0 Larimer's cause is by no means aided by fact that, at crane 25, Larimer was given permission by Heflin to obtain railguards. At that juncture, Larimer had already manifested his unwill- ingness to work unless signal men were provided, caus- ing at least an hour delay in starting work on crane 3. Heflin, if interested in getting the job done, had to find a way of working around Larimer's objection, and I be- lieve this was the course he adopted in voicing no objec- tion to the use of railguards. Nor can it be maintained that Larimer's actions of that day were protected by Section 7 of the Act because they were justified by contract or practice. Section 14-C of the governing collective-bargaining agreement provides as follows: An employee or group of employees who believe that they are being required to work under condi- tions which are unsafe or unhealthy beyond the normal hazard inherent in the operation in question shall have the right to: (1) file a grievance in the 30 The General Counsel's contention that Larimer did not refuse to perform work is rejected It is clear, front Larimer's on testimony, that no work was performed on crane 2. and that he waited at least an hour in his effort to contact Foreman Fisher in order to obtain the sign;lmen that he insisted upon. Larimer's subsequent agreemenlt to ork with rail stops did not excuse the earlier delays he caused third step of the complaint and grievance procedure for preferred handling in such procedure and arbi- tration and/or (2) relief from the job or jobs, with- out loss to their right to return to such job or jobs, and, at management's discretion, assignment to such other employment as may be available in the plant Section 107 of the departmental safety rules in the plant provides as follows: If any hazard exists involving the safety of crane re- pairmen, signal men (safety men) must be provided in the cranes adjacent to the exposed side or sides of the crane under repair. The number, position, and duties of the signal men (safety men) shall be the responsibility of the authorized person in charge of the repair job.3 2 Thus, standards governing safety considerations appli- cable to crane inspection and repair do not condone a work stoppage in the case of an employee who himself unilaterally decides that a safety hazard exists.3 :' The op- tions are to work the job and file a grievance or to seek relief from the job by requesting reassignment. Yet the work delay caused by Larimer and the resulting disci- pline were not unprecedented. Twice before he had chal- lenged discipline invoked because of protestations that his work on a crane involved a hazardous condition in justification. Once, in these two instances, he successfully invoked section IC of the collective-bargaining agree- ment in defense of his action3 4 and on the second occa- sion he was unsuccessful. 3 5 In this instance, the record does not support a finding that Larimer's conduct on May 2 was consistent with a contractually conferred II See, G C Exh. , p. 129. a2 See, G.C Exh. 7(b). Although Larimer testified that it was the worker's responsibility and right under Section 107 to determine whether signal men are needed, an arbitration award on his own grievance recites as follows: "It is apparent from Rule 107 that Management personnel have the discretion and responsibility of deciding the number, position and duties of the safety men to be assigned " See G C Exh 5(b), p. 6 33 Larimer testified that it was his understanding that if an employee feels that an unsafe condition exists he can refuse to do his assigned work, until the condition is corrected to his satisfaction. Any such inter- pretation is at odds with sec. 14-C of the bargaining agreement and, in the light of Larimer's past experiences under that clause, it is difficult to grasp the source of this "understanding." 34 See, G.C Exh 5(b) This arbitration award derives from Larimer's grievance against discipline invoked by Respondent when Larimer ad- hered to sec 14-C of the agreement and sought relief from a job on which no signalman was provided. As indicated. Larimer's action on May 2 was not excusable under the contract, and his refusal to work as in support of a position which. from all appearances on this record, was to the effect that, without qualification, signalmen w'ere to be prosided on all inspection and repair jobs to be performed on overhead cranes ad- jacent to other operating cranes. This view is at odds with sec 107 of the departmental safety rules, which provides for such measures only if a "hazard" exists and sec 106 thereof which provides for the use of rail bumpers and red lights in the case of "major repairs" The above arbitra- tion award did not override these limitations on the use of signalmen. and specifically stated For purposes of this case only, it is found that grievant was correct in his allegation of the need for a safety man This decision is not to be considered as supporting the Union's belief that Rule 107 require, the assignment of safety men in every instance, each case must be determined on its own facts. 3a See, C Exh 5Se). 601 I)ECISIONS OF NATIONAL LABOR RELATIONS 13()ARD right. As indicated, no provision in the contract author- izes employees or groups of employees to engage in a work stoppage because they determine that a hazardous condition exists. Under the governing procedures, in the event of the latter, the employees are afforded options none of which permit a work stoppage, and neither of which was invoked by Larimer on May 2. Furthermore, as inspection and repair assignments on a regular and routine basis require work on a crane adjacent to another in operation, that recurrent phenomenon does not estab- lish "conditions which are unsafe or unhealthy beyond the normal hazard inherent in the operation in question. It is concluded that Larimer, on May 2, acted alone rather than in concert with other members of his crew, while seeking the aid of signalmen. His action in that regard was not sanctioned by the subsisting collective- bargaining agreement and, indeed, the work stoppage which resulted placed him in violation of section 4, mar- ginal paragraph 4.7, thereof, 3 6 which binds "employees" to refrain from conduct causing an "interruption or im- peding of work. " ' 7 Accordingly, Larimer's resort to "self help" on May 2 was not protected by the Act and, as I find that the reassignment to the mesta spares area was based thereon, Respondent did not violate Section 8(a)(l), (3), and (4) of the Act in that regard. I so find. CONCILUSIONS OF LAW 1. Respondent, United States Steel Corporation, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steel Workers of America, Local 227, AFL- CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(l) of the Act by in effect orally informing an employee that he would be disciplined if he engaged in distribution of literature on behalf of his candidacy for union office on company property. 4. Respondent did not violate Section 8(a)(l), (3), or (4) in any other respect. 5. The unfair labor practice found above is an unfair labor practice having an effect upon commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3 See, G.C. Exh. 6, p. 16. "? Cf. Merlyn Bunney and Clarence Bunney, partners, d/b/a Bunne, Bros. Construction Company, 139 NLRB 1516 (1962). THI REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of the Act, it shall be recommended that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes and policies of the Act. Based upon the foregoing findings of fact and conclu- sions of law, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER" 8 The Respondent, United States Steel Corporation, Dravosburg, Pennsylvania, its officers, agents. succes- sors, and assigns, shall: 1. Cease and desist from: (a) Promulgating and threatening to enforce any rule or provision prohibiting employees from distributing lit- erature in nonworking areas on nonworking time in sup- port of, or in opposition to, any candidate for union office, or relating to the selection or retention of a labor organization as the exclusive bargaining representative of said employees, or relating to other matters involving the exercise of Section 7 rights. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its plant in Dravosburg, Pennsylvania, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by a rep- resentative of Respondent, shall be posted by it immedi- ately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 6, within 20 days from the date of this Order, what steps Respond- ent has taken to comply herewith. 13 In the event no exceptions are filed as provided by Sec 102 46 orf the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 10248 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall he deemed waived for all purposes. 39 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National l.abor Relations Board" 602