Alcoa, Inc.

National Labor Relations Board - Board Decisions

Aug 29, 2008

352 N.L.R.B. 1222 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 141
1222
Alcoa, Inc. and Local 115A, United Steelworkers,
AFL–CIO–CLC, a/w United Steel, Paper & For-
estry, Rubber, Manufacturing, Energy, Allied
Industrial & Service Workers International Un-
ion, AFL–CIO–CLC. Cases 25–CA–29487, 25–
CA–29611, 25–CA–29649, 25–CA–29701, and
25–CA–29860
August 29, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On July 28, 2006, Administrative Law Judge Arthur J.
Amchan issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief,1 and the Respondent
filed a reply brief; the General Counsel filed cross-
exceptions and a supporting brief, and the Respondent
filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.2
Introduction
As discussed below, we reverse the judge’s finding
that the Respondent violated Section 8(a)(5) and (1) of
the Act by unilaterally changing its leave policy to pro-
hibit unit employees from taking unpaid leave to attend
monthly union meetings. In addition, we reverse the
judge’s findings of independent violations of Section
8(a)(1), which were based on his determination that all of
the measures the Respondent took to enforce its new
leave policy violated the Act. We also reverse the
judge’s finding that the Respondent violated Section
8(a)(3) and (1) of the Act by contracting out the Total
Predictive Maintenance (TPM) event at its facility in
April 2005.3 In addition, we reverse the judge’s finding

1 The General Counsel argues that the Respondent’s exceptions and
supporting brief fail to comply with Sec. 102.46 of the Board’s Rules
and Regulations. We find that the Respondent’s exceptions and brief
are in substantial compliance with the Board’s Rules.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
We shall modify the judge’s recommended Order to conform to the
violations found. We shall also substitute a new notice to conform to
the Order as modified.
3 All dates are in 2005, unless otherwise noted.
that the Respondent did not violate Section 8(a)(3) and
(1) of the Act when it suspended Mark Hewitt for 3 days
for using profanity during an August 4 disciplinary meet-
ing. We affirm the judge’s finding, but on a different
rationale than the judge applied, that the Respondent
violated Section 8(a)(3) and (1) by suspending Hewitt for
an additional 27 days for his profane comments.4
I. THE RESPONDENT’S CHANGE IN LEAVE POLICY
A. Factual Background
The Respondent processes aluminum products at its
facility in Lafayette, Indiana. The Respondent has had a
longstanding collective-bargaining relationship with the
Union. For a number of years, the Respondent permitted
unit employees working on the first shift (7 a.m. to 3
p.m.) to clock out up to 2 hours early to attend a monthly
union meeting, which was held from 1:30 to approxi-
mately 3 p.m. Employees who attended this union meet-
ing were not paid for their time off from work, but the
Respondent considered the time off to be an excused
absence. Some employees started work early so that they
could work the full shift and attend the meeting. Prior to
June 21, an employee was only required to notify his or
her supervisor on the day of the meeting that he or she
was going to be leaving early, or the day before if the
employee was working a flexible schedule.5
In early 2005, the Respondent was experiencing high
demand for its products, and its management determined
that over 2100-man hours of production were being lost
due to employees leaving work early for the monthly
meeting. At a meeting on March 8, Pamela Leonard, the
human resources manager for the Respondent’s Lafayette
facility, advised Gerald Misner and Spencer Buchanan,
the union president and vice president, that the Respon-
dent’s policy of excusing employees to attend the Un-
ion’s meetings during working time was costing the plant
valuable man hours. Leonard asked the Union to submit
alternatives to the current practice, such as holding mul-
tiple meetings or changing meeting times. Misner told
Leonard that Leonard was “rocking the boat” and asked
her if she wanted to negotiate about this change. Leo-
nard replied that she did not have to do so. Misner then

4 We find it unnecessary to pass on whether the Respondent’s ac-
tions with respect to Hewitt also violated Sec. 8(a)(4), because the
remedy for that violation would be essentially the same as the remedy
for the 8(a)(3) violation. See United Parcel Service, 327 NLRB 317 fn.
4 (1998), enfd. 228 F.3d 772 (6th Cir. 2000). There are no exceptions
to the judge’s finding that the Respondent violated Sec. 8(a)(5) and (1)
by failing and refusing to provide requested relevant information to the
Union.
5 There is no assertion that the Respondent’s policy of considering
an employee’s attendance at the monthly union meeting to be an ex-
cused absence was covered under the collective-bargaining agreement
or that the collective-bargaining agreement contained a zipper clause.
ALCOA, INC. 1223
stated that the Respondent’s policy of excusing employ-
ees to attend the meetings during working time had be-
come part of the Respondent’s attendance policy and the
Union did not want to bargain about the issue at that
time.
On March 31, Leonard reiterated her request to Misner
“for a proposal on or alternative to shutting down equip-
ment to excuse employees to leave work to attend these
meetings . . . .” Misner replied on April 8, requesting
information concerning the man hours lost due to em-
ployees leaving work early for the meetings. Leonard
responded by providing a list of equipment that the Re-
spondent claimed had been shut down while employees
attended the most recent meeting. During a meeting on
April 28, Leonard, for the third time, requested that Mis-
ner submit a proposal regarding the union meetings.
Misner replied that the Union’s proposal was to leave the
union meeting schedule alone. The following day, Mis-
ner confirmed this response in writing.
On May 18, Leonard told Misner that effective June 1,
the Respondent would discontinue its practice of excus-
ing employees from work to attend the monthly union
meetings. Leonard also restated her position that this
issue was not a mandatory subject of bargaining. The
Respondent subsequently posted a notice to employees
stating that attendance at union meetings would no
longer be excused. On June 20, the Respondent circu-
lated a letter signed by Plant Manager Robert Morrison
repeating this new policy and advising employees that
Morrison had learned of rumors of a mass walkout on
June 21, the date of the Union’s monthly meeting. The
letter informed employees that the Respondent might
consider leaving the plant without permission on June 21
to constitute insubordination, as well as a violation of the
parties’ collective-bargaining agreement. It further noted
that employees could face discipline up to and including
discharge if they violated the new policy. On June 21,
some supervisors warned employees that they could face
discipline if they left early that day. In addition, some
supervisors stood by the timeclocks to record which first-
shift employees left work early. On June 23, manage-
ment questioned two employees, Mark Hewitt and James
Howard, regarding their reasons for leaving work early
on June 21. Approximately 10–12 employees attended
the union meeting on June 21. On previous occasions,
25–60 employees had attended.
B. Judge’s Decision
The judge found that the Respondent violated Section
8(a)(5) and (1) by unilaterally changing its leave policy
to prohibit unit employees from taking unpaid leave to
attend the monthly union meetings. The judge reasoned
that leave or attendance policies are mandatory subjects
of bargaining and therefore the Respondent was required
to bargain over its decision to prohibit employees from
taking unpaid leave to attend the union meetings. The
judge found that the Respondent’s change in policy was
material and substantial because it prevented union
members who wanted to attend the monthly meetings
from being able to discuss the terms and conditions of
their employment with other unit employees. The judge
concluded that the Respondent did not bargain over this
issue because it did not offer the Union anything, but
simply asked the Union to change the way its meetings
were held. The judge further found that the Respondent
did not notify the Union prior to implementing the
change in its leave policy, but, on May 18, simply an-
nounced that unit employees on the first shift could no
longer take unpaid leave or work a flexible schedule on
the day of the union meetings.
Based on this violation, the judge further found that
the Respondent violated Section 8(a)(1) by (1) threaten-
ing unit employees with discipline if they left the Re-
spondent’s facility early on the first shift on June 21; (2)
informing employees that it would engage in surveillance
to determine who was leaving early on that date, and by
engaging in surveillance on June 21; and (3) interrogat-
ing Mark Hewitt and Jim Howard as to why they left the
facility early on June 21. The judge reasoned that all of
the Respondent’s actions in enforcing its unilateral
change in its leave policy violated the Act. We reverse
the judge and dismiss each of these complaint allega-
tions.
Analysis
Section 8(a)(5) of the Act requires an employer to pro-
vide its employees’ representative with notice and an
opportunity to bargain before instituting changes in any
matter that constitutes a mandatory bargaining subject.
NLRB v. Katz, 369 U.S. 736 (1962). A unilateral change
with regard to a mandatory subject of bargaining violates
Section 8(a)(5) and (1) if the change is “material, sub-
stantial, and significant.” Crittenton Hospital, 342
NLRB 686 (2004). Leave or attendance policies have
long been held to be mandatory subjects of bargaining.
E.g., Dorsey Trailers, Inc., 327 NLRB 835, 852 fn. 26
(1999), enfd. in relevant part 233 F.3d 831 (4th Cir.
2000); Ciba-Geigy Pharmaceutical Division, 264 NLRB
1013, 1016 (1982), enfd. 722 F.2d 1120 (3d Cir. 1983).
We agree with the judge that the Respondent had a
past practice of allowing employees to take unpaid leave
to attend the monthly union meetings, that this practice
had become part of their terms and conditions of em-
ployment, and that the Respondent’s change to this prac-
tice was material, substantial, and significant. However,
contrary to the judge, we find that the Respondent met its
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1224
obligation to timely notify the Union of its desire to
change its leave policy and to offer the Union an oppor-
tunity to bargain.
Where a union receives timely notice that an employer
intends to change a condition of employment, it must
promptly request that the employer bargain over the mat-
ter. To be timely, the employer’s notice must be given
sufficiently in advance of the actual implementation of
the change to allow a reasonable and meaningful oppor-
tunity to bargain. Ciba-Geigy Pharmaceutical Division,
supra. Here, through a series of communications well in
advance of the change, the Respondent clearly signaled
to the Union that the current leave policy could not con-
tinue. In March, Leonard told Misner that she was con-
cerned about losing 2100-man hours of production and
invited the Union to explore alternatives to the Respon-
dent’s practice of allowing employees to take unpaid
leave to attend the monthly union meetings. Between
March and May, Leonard asked Misner three times to
submit proposals and to explore other options, such as
holding multiple meetings. The first time, Misner spe-
cifically told Leonard that the Union did not wish to bar-
gain at that time.6 The second time, Misner asked for
documentation of the lost man hours, and Leonard re-
sponded that same day with a list of equipment that had
been shut down to excuse employees to attend the prior
month’s union meeting. After receiving this information,
Misner made no request to bargain. The third time, Mis-
ner made it clear that the Union did not intend to bargain
over this issue; rather, he stated that the Union’s proposal
was to leave the union meeting schedule alone. Only
then did the Respondent announce the new leave policy.
The judge reasoned that the Respondent failed to bar-
gain because it did not offer anything to the Union, but
merely asked the Union to change the way it held its
meetings. Contrary to the judge, the Respondent had no
duty to initially offer substantive concessions; its duty
was merely to give the Union adequate notice and an
opportunity to bargain, a duty we find that it met. The
Respondent informed the Union of its problem, promptly
complied with the Union’s request to present supporting
documentation of lost man hours, and sought, three
times, “a proposal on or alternative to” shutting down its
equipment. Despite this, the Union offered nothing.
That an end to the unpaid leave practice was imminent
was clear from the totality of Leonard’s communications

6 Leonard’s statements that the Respondent’s practice of excusing
absences for union meetings was not a mandatory subject of bargaining
do not establish that the Respondent refused to bargain. Notwithstand-
ing her statements, the Respondent repeatedly solicited the Union’s
proposals, and there is no evidence that the Respondent would not have
considered any alternatives the Union might have provided.
to the Union: her expressed concern about lost produc-
tion, her eagerness to document that concern in response
to the Union’s information request, and her repeated re-
quests to the Union to propose some alternative to the
current arrangement that would not require an equipment
shutdown. Under these circumstances, we find that the
Respondent met its duty to put the Union on notice of the
impending change to its leave policy and to give the Un-
ion an opportunity to bargain. Thus, we find that the
Respondent did not violate Section 8(a)(5) and (1) by
changing its leave policy to prohibit unit employees from
taking unpaid leave to attend the monthly union meet-
ings.
Having so found, we also reverse the judge’s findings
of independent violations of Section 8(a)(1), all of which
were based on his determination that all of the measures
that the Respondent took to enforce its new leave policy
violated the Act. Thus, we dismiss both the 8(a)(5) and
the independent 8(a)(1) allegations centering on the Re-
spondent’s discontinuance of its practice of excusing
employees to attend the Union’s monthly meetings.
II. THE RESPONDENT’S SUBCONTRACTING OF TPM WORK
A. Factual Background
In the spring of 2005, the Respondent conducted its
first TPM event at the Lafayette facility. This mainte-
nance work consisted of a comprehensive cleaning, in-
spection, and repair of the 5-inch drive shaft cell in the
tube mill. The Respondent proposed to the Union that in
addition to bargaining unit employees, supervisory per-
sonnel, including supervisors from other Alcoa facilities,
perform some of the work. The Union, by Misner, re-
jected the Respondent’s proposal and proposed that bar-
gaining unit employees perform all of the work, which
was scheduled for a weekend, and that the Respondent
offer the employees overtime. The Respondent decided
to contract out the work. The parties’ collective-bargain-
ing agreement permits the Respondent to subcontract this
work.
B. Judge’s Decision
The judge found that the Respondent violated Section
8(a)(3) and (1) in contracting out the TPM event to re-
taliate against the Union for its insistence that bargaining
unit employees perform bargaining unit work. In so con-
cluding, he found, inter alia, that the Respondent “bore
animus towards the Union” because of the Union’s re-
fusal to permit supervisors to do the TPM work or to
propose an alternative schedule for the monthly union
meetings. The judge further rejected the Respondent’s
ALCOA, INC. 1225
Wright Line7 defense that the work could not be done
solely by bargaining unit employees without hurting pro-
duction.
Analysis
We disagree with the judge and dismiss this complaint
allegation. Under Wright Line, 251 NLRB at 1083, the
General Counsel must first prove, by a preponderance of
the evidence, that protected or union conduct was a mo-
tivating factor in the employer’s adverse action. Once
the General Counsel makes a showing of discriminatory
motivation by proving protected activity, employer
knowledge of the activity, and animus against it, the bur-
den of persuasion shifts to the employer to demonstrate
that the same action would have taken place even in the
absence of the protected conduct. 251 NLRB at 1089.
Here, the General Counsel has not met his initial burden
under Wright Line of establishing that the Respondent’s
decision to contract out the TPM work was unlawfully
motivated. While the record establishes that employees
engaged in protected activity and that the Respondent
was aware of it, there is no evidence to support the
judge’s finding that the Respondent harbored animus
towards protected activity.
The judge inferred animus from what he deemed a lack
of “first hand evidence that the decision to contract out
the TPM event” could be attributed to anything other
than the Union’s refusals to accede to the Respondent’s
proposals. To supply the missing animus element of the
General Counsel’s case, he relied on what he considered
insufficient evidence of nondiscriminatory business rea-
sons. We decline to make that inference. First, the tim-
ing of the subcontracting decision undercuts that infer-
ence. The decision was actually made before the Union
stated its final position that it would not propose alterna-
tives to the monthly union meeting. Second, the Re-
spondent had a contractual right to subcontract this work,
so that the mere fact that it did so after the Union’s refus-
als to permit supervisors to do the TPM work (or to pro-
pose an alternative schedule for the monthly union meet-
ings), does not establish that the subcontracting decision
was intended as a reprisal for those refusals. This is par-
ticularly true in the context here of the parties’ long his-
tory of bargaining and the absence of any evidence to
suggest that the bargaining relationship has been other
than harmonious. Accordingly, we dismiss this allega-
tion.

7 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
III. THE RESPONDENT’S SUSPENSION OF MARK HEWITT
A. Factual background
Mark Hewitt has worked as a crane operator in the Re-
spondent’s tube mill department for 27 years. Hewitt is
the financial secretary of the Union, also serving on the
Union’s safety committee and as a steward for the tube
mill department. On August 4, bargaining unit employee
Kevin Cripe asked Hewitt to represent him at a discipli-
nary meeting. Doug Foster, who supervised both Cripe
and Hewitt, and Managers Donald Thomas and Scott
Burnett attended the meeting on the Respondent’s behalf.
Phyllis Parks, a unit employee and a union tube mill
committee person, also attended the meeting. Hewitt
arrived at the meeting after it started.
The Respondent discussed disciplining Cripe for an in-
cident that involved Cripe’s use of profanity to Foster.
After Hewitt arrived, he urged Foster to be lenient in
disciplining Cripe, but Foster indicated that he thought a
suspension was appropriate. Hewitt then pointed at Fos-
ter, who was sitting across a table from him, and said, “If
you tell this egotistical f—er to quit talking to people the
way he does, this wouldn’t happen.” Thomas cut Hewitt
off and later that day issued Hewitt a 3-day suspension
for insubordination and abusive and offensive behavior
to a supervisor. The next day, Thomas issued Hewitt a
27-day suspension for a total of 30 days without pay. The
Respondent based the additional 27 days on the fact that
Hewitt had previously received an oral counseling on
May 5 for using the same profanity over the radio when
complaining about the way maintenance employees had
attached a motor to his crane.
B. Judge’s Decision
The judge found that the Respondent did not violate
Section 8(a)(3) and (1) in suspending Hewitt for the ini-
tial 3 days. The judge explained that although Hewitt was
engaged in Section 7 activity when he made the remark
for which he was suspended, Hewitt lost the protection of
Section 7. Applying Atlantic Steel Co., 245 NLRB 814
(1979), the judge reasoned that Hewitt’s outburst was not
provoked by an unfair labor practice. The judge further
observed that Hewitt’s outburst was unwarranted and
occurred in a grievance hearing that concerned Cripe’s
alleged insubordinate use of profanity toward Foster,
who was both Cripe’s and Hewitt’s supervisor. Thus,
the judge concluded that Hewitt’s outburst would under-
cut Foster’s authority and his objective in disciplining
Cripe for his use of profanity. The judge further found,
however, that Hewitt’s additional 27-day suspension was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1226
unlawful under a Wright Line analysis. For the reasons
set out below, we find that the entire 30-day suspension
was unlawful.
Analysis
Because it is undisputed that Hewitt’s discipline was
precipitated by his conduct at the August 4 meeting, the
appropriate analysis is whether the conduct for which he
was disciplined was initially protected under the Act and,
if so, whether he lost that protection at any point. See
Hahner, Foreman & Harness, Inc., 343 NLRB 1423,
1425 fn. 8 (2004).8 It is clear that Hewitt was acting in
his representative capacity as shop steward when he con-
fronted Foster, and that he was engaged in protected
conduct at the time. To determine whether an employee
who is otherwise engaged in protected activity loses the
protection of the Act due to opprobrious conduct, the
Board considers the following factors: (1) the place of
the discussion; (2) the subject matter of the discussion;
(3) the nature of the employee’s outburst; and (4)
whether the outburst was in any way provoked by an
employer’s unfair labor practice. Atlantic Steel, 245
NLRB at 816. Applying these factors, we find that Hew-
itt ‘s behavior was not so “offensive, defamatory or op-
probrious as to remove it from the protection of the Act.”
Ben Pekin Corp., 181 NLRB 1025 (1970), enfd. 452 F.2d
205 (7th Cir. 1971).
Addressing the first factor, we find that the location of
Hewitt’s conduct weighs in favor of finding his conduct
protected. Hewitt’s conduct did not take place in a work
area and thus it was not disruptive of the work process.
Rather, his conduct occurred at a meeting in which Hew-
itt was acting in a representative capacity on behalf of an
employee facing possible discipline. This was an appro-
priate forum for a union steward to express his views
regarding that employee’s discipline.
With regard to the second factor, the subject matter of
Hewitt’s remarks also weighs in favor of protection.
Hewitt’s outburst clearly involved “terms and conditions
of employment” of particular concern to Hewitt as the
union steward responsible for protecting a unit em-
ployee’s rights under the collective-bargaining agree-
ment. His remark was an expression of his view that
Cripe was being unfairly suspended.
The third factor, the nature of the employee’s outburst,
does not weigh against protection. In so concluding, we
note that the Act allows employees, pertinently including

8 As noted above, the judge seemingly applied Atlantic Steel in ana-
lyzing what he termed Hewitt’s “initial three-day suspension,” but
Wright Line in analyzing the “tacking on another 27 days to Hewitt’s
suspension.” Because we reverse the judge’s finding that Hewitt lost
the Act’s protection at any point, we find it unnecessary to rely on his
split treatment of the discipline or his application of Wright Line.
those like Hewiit who are acting in a representative ca-
pacity, some leeway in the use of intemperate language
where such language is part of the “res gestae” of their
concerted activity. Thor Power Tool Co., 148 NLRB
1379, 1380 (1964), enfd. 351 F.2d 584 (7th Cir. 1965).9
Hewitt’s conduct consisted of a single verbal outburst of
profane language, in a disciplinary meeting, which was
unaccompanied by physical contact or threat of physical
harm. His outburst was simply a forceful and momen-
tary expression of his frustration at Foster’s refusal to
exercise leniency in disciplining Cripe. Here, as in Max
Factor & Co., 239 NLRB 804, 819 (1978), Hewitt’s
conduct “appears to have been spontaneous and was not
the product of a conscious decision to degrade [Foster] or
to undermine his authority in the eyes of those witness-
ing the incident.”
Finally, with respect to the fourth factor, Hewitt’s out-
burst was not provoked by any unlawful conduct.
In sum, under Atlantic Steel, supra, we find the factors
of place, subject matter, and nature of the outburst favor
protection, while only the factor of provocation does
not.10 Thus, contrary to the judge, we find that Hewitt
did not lose the Act’s protection when he spontaneously
uttered a single profanity. Accordingly, we find that the
Respondent violated Section 8(a)(3) in suspending Hew-
itt for 30 days.

9 In Thor Power, supra, an employee-member of a union grievance
committee lost his temper during an informal discussion of an em-
ployee’s grievance and referred to his plant superintendent as “the
horse’s ass.” The employer discharged the employee because of this
remark. The Board concluded that the discharge was unlawful. In
reaching this result, the Board observed that the remark was “part of the
res gestae of the grievance discussion . . . .” 148 NLRB at 1380. Simi-
larly, in Postal Service, 250 NLRB 4 (1980), while discussing a possi-
ble grievance, an employee acting as union steward allegedly called a
supervisor a “stupid ass.” The Postal Service suspended the employee
for 5 days. The Board found that the remark occurred during the course
of protected activity, was part of the res gestae of that activity, and did
not lose the protection of the Act. Id. See also Success Village Apart-
ments, Inc., 347 NLRB 1065, 1069 (2006) (union shop chairperson’s
use of crude language toward management during a meeting to discuss
an employee warning was not “uncharacteristic of the occasionally
intemperate conduct engaged in by both management and union repre-
sentatives” during such discussions). While he views it to be a close
call, Chairman Schaumber agrees that extant Board precedent supports
finding that Hewitt’s conduct did not lose the protection of the Act. He
applies that precedent for institutional reasons. Were he writing on a
clean slate, he would find the 30-day suspension to be lawful.
10 See Felix Industries, 339 NLRB 195, 197 (2003), enfd. mem. 2004
WL 1498151 (while the nature of employee’s outburst weighed in favor
of losing the protection of the Act, it did not outweigh the other three
factors favoring the Act’s protection and, therefore, employee did not
lose the protection of the Act based on his conversation with his super-
visor).
ALCOA, INC. 1227
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Alcoa, Inc., Lafayette, Indiana, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending, disciplining, or otherwise discriminat-
ing against employees because of their union or other
protected activities.
(b) Refusing and failing to provide the Union with re-
quested information that is relevant and necessary to the
Union’s performance of its duties as collective-
bargaining representative of the Respondent’s hourly
employees, including the disciplinary records of salaried
employees who have committed violations of the Re-
spondent’s rules that are comparable to those for which
unit employees have been disciplined.
(c) Refusing and failing to provide the Union with re-
quested information that the Respondent deems confi-
dential, without negotiating with the Union to seek an
accommodation with regard to such information.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind
the unlawful suspension imposed on Mark Hewitt for his
conduct on August 4, 2005.
(b) Make Mark Hewitt whole for any loss of earnings
or other benefits he may have suffered as a result of the
unlawful suspension imposed for his conduct on August
4, 2005. Backpay shall be computed on a quarterly basis
as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
(c) Within 14 days from the date of the Board’s Order,
remove from its files any reference to the unlawful sus-
pension of Mark Hewitt, and within 3 days thereafter
notify him in writing that this has been done and that the
unlawful suspension will not be used against him in any
way.
(d) Furnish to the Union in a timely manner the infor-
mation requested by the Union in January 2005, includ-
ing the disciplinary records of salaried employees who
have committed violations of the Respondent’s rules that
are comparable to those for which unit employees have
been disciplined.
(e) Negotiate with the Union in order to seek an ac-
commodation with respect to requested documents not
previously provided on the grounds of confidentiality.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its Lafayette, Indiana facility, copies of the attached no-
tice marked “Appendix.”11 Copies of the notice, on
forms provided by the Regional Director for Region 25,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since February 4, 2005.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1228
Choose not to engage in any of these protected
activities.
WE WILL NOT suspend, discipline, or otherwise dis-
criminate against employees because of their union or
other protected activities.
WE WILL NOT refuse or fail to provide the Union with
requested information that is relevant and necessary to
the Union’s performance of its duties as collective-
bargaining representative, including the disciplinary re-
cords of salaried employees who have committed viola-
tions of our rules that are comparable to those for which
unit employees have been disciplined.
WE WILL NOT refuse or fail to provide the Union with
information it has requested, which we deem confiden-
tial, without negotiating with the Union to seek an ac-
commodation regarding these documents.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the suspension given to Mark Hewitt for
his conduct at a grievance meeting on August 4, 2005.
WE WILL make Mark Hewitt whole for any loss of
earnings or other benefits he may have suffered as a re-
sult of the suspension imposed for his conduct at a griev-
ance meeting on August 4, 2005, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspension of Mark Hewitt, and WE WILL, within 3
days thereafter, inform Mark Hewitt in writing that this
has been done and that the suspension will not be used
against him in any way.
WE WILL provide to the Union the information re-
quested in January 2005, including the disciplinary re-
cords of salaried employees who have committed viola-
tions of our rules that are comparable to those for which
unit employees have been disciplined.
WE WILL negotiate with the Union in order to seek an
accommodation with respect to requested documents not
previously provided on the grounds of confidentiality.
ALCOA, INC
Steve Robles, Esq., for the General Counsel.
Marcia A. Mahony, Esq. (Kightlinger and Gray, LLP), of Indi-
anapolis, Indiana, for the Respondent.
Chris Bolte, Staff Representative, of Jasper, Indiana, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. The first
four dockets in this case were tried in Lafayette, Indiana, on
February 27–March 1, 2006. The trial resumed on June 6,
2006, to take evidence in Case 25–CA–29860, which I consoli-
dated with the other matters. The charges giving rise to this
case were filed between February 7, 2005, and February 6,
2006. A consolidated complaint was issued for the first four
dockets on October 28, 2005. The Regional Director issued the
complaint in Case 25–CA–29680 on April 7, 2006.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Alcoa, Inc., a corporation, processes aluminum products at
its facility in Lafayette, Indiana, where it annually purchases,
receives, sells, and ships goods valued in excess of $50,000
directly from or to points outside the State of Indiana. Respon-
dent admits and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union, United Steelworkers Local 115A, is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Alleged Violations Related to Respondent’s Change in
Policy which no Longer gave Employees an Excused
Absence to Attend Monthly Union Meetings
Many of the alleged violations in this case stem from Re-
spondent’s decision in the spring of 2005 to cease its practice of
allowing employees an excused absence to attend the Union’s
monthly membership meetings. These meetings were held
generally on the third Tuesday of each month. The Union has
represented employees at Alcoa’s Lafayette plant for decades.
The latest collective-bargaining agreement between the Union
and Respondent pertaining to this matter was effective from
May 31, 2001, until May 31, 2006.1
For at least 10 years prior to the Union’s June 21, 2005 meet-
ing, employees working on the first shift (7 a.m. to 3 p.m.) were
allowed to clock out up to 2 hours early to attend the monthly
union meeting, which began at 1:30 p.m. and generally ran
about 1-1/2 hours. Employees were not paid for this absence
but it did not count against them on their attendance record.
Some employees started work early so that they could work an
8-hour shift and attend the union meeting. Prior to June 21, an
employee had only to inform his or her supervisor the day of
the union meeting that he or she was going to be leaving early,
or the day before if he or she was to work a flexible schedule.2

1 The International Union and Alcoa apparently reached agreement
on a new master agreement on May 31, 2006.
2 Respondent may have sent a letter to the Union in May 1998 to the
effect that employees are required to get permission to leave the plant
early on personal business, Exh. R-30. However, in practice such per-
ALCOA, INC. 1229
In the late winter of 2005, Alcoa’s management concluded
that over 2100-man hours of production were being lost as a
result of employees leaving work early to attend the monthly
union meeting. As business was picking up dramatically in
2004 and 2005, Respondent apparently decided that this was
luxury that it could no longer afford.
On March 8, 2005, Pamela Leonard, the human resources
manager for Alcoa’s Lafayette operations, and Deborah Spidel,
a human resources supervisor, met with Gerald Misner, the
union president, and Spencer Buchanan, the Union’s vice
president. Leonard informed Misner and Buchanan that Re-
spondent was losing 2100-man hours of production due to the
fact that employees were leaving work early to attend the un-
ion’s monthly membership meetings. Leonard asked the Union
to provide an alternative schedule, such as holding multiple
meetings.
Misner told Leonard that she was “rocking the boat.” He
also asked Leonard if she wanted to negotiate about such a
change. Leonard responded that she did not have to do so.3
Misner also told Leonard that for many years, Respondent had
considered an employee’s early departure for union meetings to
be an excused absence and that he considered this matter to be
part of Respondent’s attendance policy. He told Leonard that
the Union did not wish to bargain about the matter at this time.4
On March 31, 2005, Leonard emailed Misner (GC Exh. 15).
She mentioned her March 8, discussion with Misner about “the
number of hours the company was excusing employees to at-
tend regular union meetings. At that time I asked you for a
proposal on or alternative to shutting down equipment to ex-
cuse employees to leave work to attend these meetings.”
Misner responded on April 8, by asking for documentation
regarding the man hours lost. Leonard responded the same date
with a list of equipment that Respondent claims was shut down
in order to excuse employees to attend the union meeting on
March 15, 2005. At a meeting of April 28, Leonard again
asked Misner for a proposal regarding union meetings. Misner
responded that the Union’s proposal was to leave the union
meeting schedule alone. He confirmed this response in writing
the next day (GC Exh. 19).

mission was granted routinely. Indeed, there is no evidence that any
employee’s request to leave early had ever been denied prior to June
21, 2005.
3 Leonard, in her testimony about the March 8, 2005 meeting did not
contradict Misner’s testimony on this point (Tr. 444-447). I therefore
credit Misner because his testimony is uncontradicted and consistent
with Leonard’s May 18, 2005 letter (Exh. GC Exh. 11) in which she
stated, “Although it [excused absences for union meetings] is not a
mandatory subject of bargaining.”
Leonard testified Misner told her he was unwilling to negotiate in
answer to her counsel’s leading question about Leonard’s response to
Misner. Counsel asked Leonard how Misner responded to “your sug-
gestions and your attempt to negotiate?” (Tr. 447). Although Misner
never changed his position regarding the Union’s monthly meeting, I
find that Leonard told him that Respondent did not have to bargain over
this change in policy, did not offer the Union an opportunity to bargain
and in fact did not bargain. Respondent offered the Union an opportu-
nity to acquiesce in a change in policy.
4 Respondent’s written attendance policy is Exh. R-7.
On May 18, Leonard informed Misner that, effective June 1,
2005, regular union membership meetings would no longer be
an excused or approved absence. She also reiterated her view
that this issue was not a mandatory subject of bargaining (GC
Exh. 11). Leonard drafted a notice to employees, dated May
19, informing them that attendance at union meetings would no
longer be excused (GC Exh. 2), which she e-mailed to man-
agement personnel and asked that they post it in the facility.
Leonard also disseminated “Supervisor Guidelines for Re-
sponding to Leave Without Permission” (GC Exh. 5), sometime
prior to June 21. These guidelines directed supervisors to tell
employees that union meetings were no longer excused ab-
sences and that they may be subject to discipline up to and
including discharge, if they left early to attend. The guidelines
also directed supervisors to stand by each timeclock to give
employees a final warning and to keep a record of which em-
ployees left the plant. Although not explicit, these guidelines
applied only the day of the next scheduled union meeting, June
21, 2005. With a few exceptions for employees whose flexible
schedules had been approved in advance, employees were also
not allowed to work flexible schedules that day to attend the
union meeting.
On June 20, Respondent disseminated a letter under the sig-
nature of Plant Manager Robert Morrison reiterating this new
policy and informing employees that Morrison had been ad-
vised of rumors of a mass walkout.5 The Morrison letter (GC
Exh. 3) advised employees that Respondent may consider leav-
ing the plant without permission on June 21, to constitute in-
subordination, as well as a violation of the parties’ collective-
bargaining agreement. In this letter, Morrison informed em-
ployees that if they left the plant early without permission to
attend the union meeting, they would be subject to discipline up
to and including discharge.6
Pamela Leonard sent an e-mail to Union President Misner on
the afternoon of June 20 asking him to follow the union busi-

5 The basis for this rumor appears to be a May 19 e-mail from David
Musi, Respondent’s extrusion plant manager, to Pamela Leonard, Exh.
R-31, which recounts a conversation Musi apparently had with em-
ployee Jerry Weaver. Respondent introduced this document into evi-
dence through Leonard, rather than through Musi, who had testified
earlier.
There is no reliable evidence that Respondent had a reasonable basis
for expecting a work stoppage or slowdown on June 21. The contents
of Musi’s e-mail apparently became a rumor, which in an enhanced
form, circulated amongst management personnel (e.g., Tr. 366). This
rumor was then communicated to some bargaining unit employees. At
no time did Respondent make inquires to the Union as to whether it
was planning a “mass walkout” at 11 a.m. on June 21—although Leo-
nard may have mentioned the contents of the Musi e-mail to Misner
and Union Vice President Buchanan.
I note that the Musi email is the purest form of hearsay given the fact
that Musi didn’t testify about his purported conversation with Weaver
and the fact that Weaver did not testify. Moreover, the e-mail on its
face does not indicate that employees were planning a work stoppage,
slowdown or mass walkout. Musi’s e-mail suggests merely that em-
ployees planning to attend the union meeting would clock out at 11
a.m. rather than 1 p.m.
6 While the letter read out of context could be interpreted to apply to
days other than union meetings days, it was implicitly applicable only
to June 21.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1230
ness call-out procedure to enable union executive board and
grievance committee chair people to attend the Union’s
monthly meeting the next day. The Union did not take this
suggestion.
On June 21, at least some supervisors warned employees of
the potential consequences of clocking out early that day.
Some supervisors also stationed themselves by the timeclocks
to document which first-shift employees left work early. Five
employees did so. Two of these, Mark Hewitt and James How-
ard, were summoned to a meeting with management officials,
including Leonard, on June 23.
Leonard advised Hewitt that she was investigating possible
insubordination. She asked him why he left early on June 21.
Hewitt told Leonard that he left to run some personal errands
and then to attend the union meeting in his capacity as a union
official. She made similar inquires to Howard, who told her
that he attended to personal errands, but did not attend the un-
ion meeting. Respondent did not take any disciplinary action
against any first-shift employee for leaving work early on June
21. Approximately 10–12 employees attended the Union’s
membership meeting that day. On other occasions, 25–60 em-
ployees attended.
Analysis
First of all, Respondent was required to bargain over its deci-
sion to prohibit employees from taking unpaid leave to attend
union meetings. Leave or attendance policies are a term and
condition of employment and thus are mandatory subjects of
bargaining, Kendell College of Art, 288 NLRB 1205, 1213
(1988).
Alcoa had an established practice of allowing employees to
take unpaid leave to attend the monthly union meetings. Dur-
ing the life of a collective-bargaining agreement, an employer
may not unilaterally change a term or condition of employment,
not covered by the agreement, which has become an established
practice, Dow Jones & Co., 318 NLRB 574 (1995).7
A unilateral change in leave policies is unlawful if it is mate-
rial, substantial and significant, Flambeau Arnold Corp., 334
NLRB 165 (2001); Toledo Blade Co., 343 NLRB 385 (2004).
Given the fact that the Respondent’s change in policy prevented
union members who wished to attend their monthly union
meeting the opportunity to exchange their views regarding the
terms and conditions of their employment with all similarly
motivated employees from all three shifts, I find that Respon-
dent’s unilateral change was material, substantial and signifi-
cant. Indeed, the facts herein are similar in this regard to Dow
Jones & Co, supra, in which the Board found that an employer
violated Section 8(a)(5) in changing its practice of allowing the
union to use its premises for union meetings.

7 Neither party has alleged that the issue of whether employees were
entitled to unpaid leave was governed by the parties’ collective-
bargaining agreement or by Sec. 8(d) of the Act. The sole basis on
which this case was litigated was whether Respondent had imple-
mented a unilateral change with regard to a mandatory subject of bar-
gaining. Alcoa’s sole argument is that although it was not required to
bargain with regard to any changes it made, it had in fact provided the
union notice of the change in policy and an opportunity to bargain with
regard to it.
Respondent contends that it bargained to impasse. However,
Respondent clearly did not offer the union notice and an oppor-
tunity to bargain over the proposed change in leave (atten-
dance) policy. Respondent gave the union notice that it wanted
the Union to implement a change in the way it conducted its
monthly meetings. Even with regard to this issue, Respondent
did not bargain in that it did not offer the Union anything; it
merely asked the Union to alter the way meetings were con-
ducted without offering anything in return. More importantly,
Respondent did not notify the Union in advance of its intention
to prohibit unit employees on the first shift from taking unpaid
leave or working a flexible schedule on the day of the union
meetings. It simply announced this change on May 18, without
notice and an opportunity to bargain.
Respondent violated Section 8(a)(1) as alleged in complaint
paragraphs 5(a) and (b), by threatening unit employees with
discipline if they left Respondent’s facility early on the first
shift on June 21, 2005, and by informing employees that it
would engage in surveillance, and by engaging insurveillance,
to determine who was leaving early on June 21. Respondent
also violated Section 8(a)(1), as alleged in paragraph 5(c), by
interrogating Mark Hewitt and Jim Howard as to why they left
the facility early on June 21 and whether or not they attended
the union meeting on that date.
It is uncontroverted that Respondent threatened employees
with discipline, up to and including discharge if they left the
Lafayette facility early on June 21. It is also uncontroverted
that supervisors stood by the timeclocks to discourage employ-
ees from leaving and to document who did leave. Since I find
that Respondent violated Section 8(a)(5) in unilaterally chang-
ing its leave policy to prevent employees from attending the
June 21 meeting, I find that all measures it took to enforce that
change violated Section 8(a)(1). Similarly, the interrogations
of Hewitt and Howard on June 23 violated the Act.
Respondent has defended its conduct in part on the grounds
that it had reason to believe that a mass walkout was going to
occur on the afternoon of June 21. I find that Respondent did
not have a reasonable basis for this belief. This rumor appears
to have originated within management and then been shared
with some unit employees.
Extrusion Plant Manager David Musi, who did not testify
about this rumor, sent an email to Pamela Leonard on May 19,
2005, regarding a conversation with unit employee Jerry
Weaver, who was not a witness at this hearing. According to
the e-mail (R. Exh. 31),8 Weaver told Musi that employees
would clock out at 11 a.m. rather than at 1 p.m. on union meet-
ing days if Respondent no longer excused employees to attend
the monthly union meeting. First of all, the only evidence that
Weaver said the above to Musi is classic hearsay and entitled to
no weight. Secondly, even on their face, Weaver’s statements
did not indicate that more employees would leave the plant to
attend the Union’s monthly meetings that would do so ordinar-
ily. The specter of a “mass walkout” was entirely a figment of
management’s imagination.

8 There are two exhibits numbered Exh. R-31 in the record. One re-
ceived on March 1, 2006; the other on June 6. The Musi e-mail is the
Exh. R-31 received on March 1.
ALCOA, INC. 1231
Respondent Subcontracts the Total Predictive
Maintenance (TPM) work on the 5-inch drive
shaft cell in the tube mill
Paragraphs 6(a) and 9 of the complaint allege that Respon-
dent violated Section 8(a)(3) and (1) of the Act by subcontract-
ing the cleaning work associated with a total predictive mainte-
nance (TPM) event scheduled for the 5-inch drive shaft cell in
the tube mill. The General Counsel alleges that Respondent
violated the Act because the decision to subcontract was dis-
criminatorily motivated. He does not allege a Section 8(a)(5)
violation and concedes that the parties’ collective-bargaining
agreement permits Respondent to subcontract this work. Re-
spondent concedes that this is bargaining unit work.
In the spring of 2005, Respondent planned the first ever
TPM event at the Lafayette facility. This work was to entail a
comprehensive cleaning, inspection and repair of the 5-inch
drive shaft cell in the tube mill. Respondent proposed to use
supervisory personnel, including some from other Alcoa facili-
ties to do this work, as well as bargaining unit employees. It
asked the Union to agree to this plan.
The Union, by Local President Misner, refused to agree to
allow supervisors and other nonbargaining unit employees to
perform this bargaining unit work. It proposed that the work,
which was scheduled for a weekend, be accomplished by offer-
ing bargaining unit employees overtime. In response, Respon-
dent, on April 21, 2005, decided to contract out the work (GC
Exh. 17; R. Exh. 29).9
Analysis
The General Counsel argues that Respondent violated Sec-
tion 8(a)(3) and (1) in that it essentially retaliated against the
Union for its failure to agree to the use of supervisory personnel
in the TPM event. Respondent submits, at page 8 of its brief,
that the record establishes a legitimate business purpose for
contracting out, i.e., “that bargaining unit employees alone
could not do the work without negatively impacting produc-
tion.”
The record, however, establishes no such nondiscriminatory
business purpose. Respondent relies completely on the hearsay
testimony of Human Resources Director Pamela Leonard. She
testified that she first considered contracting out the TPM event
when she “realized that the union was not going to be agreeable
either to a contractual remedy and at the point where the de-
partment manager said we can’t do it with the resources we
have, you know, we will miss making product and miss ship-
ments if we pull from other areas to bring people in to open it
up, open up the overtime. [Tr. 433.]”
Thus, there is no first hand evidence that the decision to con-
tract out the TPM event was due to anything but Respondent’s
reaction to the Union’s refusal to allow supervisory employees

9 In a meeting with the Union in which the TPM event was dis-
cussed, Leonard stated that she would offer the Union the full contract
remedy if supervisors were permitted to do some of the TPM work.
However, she did not explain the details of what that remedy entailed
(Tr. 135, 435–36). What this remedy might be is not readily apparent
to this judge from reading the parties’ collective-bargaining agree-
ments, Exhs. GC Exhs. 21 and 22.
to perform bargaining unit work. I thus find that Respondent
violated Section 8(a)(3) and (1) as alleged in the complaint.
In order to prove a violation of Section 8(a)(3) and (1), the
General Counsel must generally make an initial showing that
(1) the employee was engaged in protected activity; (2) the
employer was aware of the activity; and (3) that animus to-
wards the protected activity was a substantial or motivating
reason for the employer’s action. Once the General Counsel
makes this initial showing, the burden of persuasion shifts to
the Respondent to prove its affirmative defense that it would
have taken the same action even if the employee had not en-
gaged in protected activity, Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (lst Cir. 1981); La Gloria Oil & Gas
Co., 337 NLRB 1120 (2002).
In the instant case, the General Counsel has established that
represented employees engaged in protected activity by insist-
ing that bargaining unit work be performed by bargaining unit
employees. Respondent was aware of this protected activity
and bore animus towards the Union and its officers as a result
of their refusal to allow supervisors to perform the TPM work
and their refusal to change the schedule for monthly union
meetings. In the absence of any alternative motive, I infer that
Respondent was motivated by this animus in contracting out the
TPM work. Respondent has not established any affirmative
defense.
Respondent’s Suspension of Mark Hewitt
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(3), (4), and (1) in suspending Mark Hewitt for 30 days
on August 4 and 5, 2005. Mark Hewitt is a crane operator in
Respondent’s tube mill department. He has worked at the La-
fayette plant for 27 years. Hewitt is also the financial secretary
of the Union serves on the Union’s safety committee and is a
steward for the tube mill (Tr. 196).
On the morning of August 4, 2005, bargaining unit employee
Kevin Cripe asked Hewitt to represent him at a disciplinary
meeting. Hewitt arrived at the meeting after it started. Aside
from Cripe and Hewitt, Phyllis Parks, a union tube mill com-
mittee person, also attended the meeting. Doug Foster, who is
both Cripe and Hewitt’s supervisor, and Donald Thomas, the
tube mill manager, and Scott Burnett, another Alcoa manager,
attended the meeting on behalf of Respondent.
Respondent discussed disciplining Cripe for an incident
which started when Supervisor Foster questioned Cripe regard-
ing Cripe’s production on a previous day operating the heat
treat furnace. Cripe apparently responded by putting his face
very close to Foster’s and saying something like that is “a stu-
pid fucking question. We’re only going to get three or four f—
ing loads when we are training new people.”10
After Hewitt arrived at the meeting, he made a plea for leni-
ency on Cripe’s behalf. Foster responded that he thought a
suspension was appropriate. Hewitt then pointed at Foster, who
was sitting across a table from him and said something like, “if
you tell this egotistical f—er to quit talking to people the way

10 Neither Cripe nor Foster testified at the instant hearing. I have
quoted Plant Manager Donald Thomas’ account of the discussion of the
incident at the disciplinary meeting. Hewitt may not have been present
when the incident was discussed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1232
he does, this wouldn’t happen.” Plant Manager Thomas cut
Hewitt off and Cripe was given either a 3-day or 5-day suspen-
sion.
Later on August 4, Hewitt was called to Thomas’ office,
where he was given a 3-day suspension for insubordination and
abusive and offensive behavior towards a supervisor. Respon-
dent later instructed Hewitt by letter to call Thomas the next
day regarding possible further discipline.
On August 5, Hewitt called Thomas, who imposed an addi-
tional 27-day suspension for a total of 30 days—without pay.
Respondent based the additional 27 days on the fact that Hewitt
had a prior offense, resulting in a “one on one” discussion (an
oral counseling) on May 5, 2005. At that time, Respondent
counseled Hewitt for using the word “f—ing” over the radio,
when complaining about the way maintenance employees had
attached a motor to his crane. A supervisor told Hewitt that the
radio was used by departmental and administrative offices and
that was the reason profanity should not be used over the radio.
Generally, but not exclusively, Respondent’s disciplinary pro-
gram is progressive. A “one on one” verbal warning is gener-
ally followed by a written warning, then a 1-day suspension, a
3-day suspension and further discipline or discharge (GC Exh.
24).
Hewitt served the entire suspension imposed in August. The
Union filed a grievance regarding the suspension, which at the
time of the hearing was awaiting Respondent’s answer in the
third step of the grievance procedure.
Analysis
As was the case with the subcontracting of the TPM event, in
order to prove a violation of Section 8(a)(3) and (1), the Gen-
eral Counsel must generally make an initial showing that (1)
the employee was engaged in protected activity; (2) the em-
ployer was aware of the activity; and (3) that animus towards
the protected activity was a substantial or motivating reason for
the employer’s action. Once the General Counsel makes this
initial showing, the burden of persuasion shifts to the Respon-
dent to prove its affirmative defense that it would have taken
the same action even if the employee had not engaged in pro-
tected activity.
Mark Hewitt was engaged in activity generally protected by
Section 7 when he made the remark for which Respondent
suspended him. However, he may lose these protections de-
pending on consideration of four factors: (1) the place of the
discussion between the employee and the employer; (2) the
subject matter of the discussion; (3) the nature of the em-
ployee’s outburst; and (4) whether the outburst was provoked
by an employer’s unfair labor practice; Atlantic Steel Co., 245
NLRB 814 (1979); Trus Joist MacMillan, 341 NLRB 369
(2004).
After considering these factors, I conclude that Hewitt lost
the protection of Section 7, insofar as the initial 3-day suspen-
sion is concerned. Taking the last factor first, his outburst was
not provoked by an unfair labor practice. It was a response to
Supervisor’s Foster’s insistence on a 3-day suspension for
Kevin Cripe, which has not been shown to violate the Act in
any way. Secondly, the other three factors cut against Hewitt.
His outburst was gratuitous and took place in a grievance hear-
ing which concerned the alleged insubordinate use of profanity
by Cripe towards Foster, both of whom were present at the
meeting. Foster was not only Cripe’s supervisor, but also Hew-
itt’s supervisor. Given this context, Hewitt’s comment would
tend to undermine Foster’s authority and detract from the mes-
sage being conveyed to Cripe as to the change in his behavior
called for by the discipline imposed upon him.11 I therefore
conclude that Respondent did not violate the Act in suspending
Hewitt for 3 days.
On the other hand, however, I find that Respondent did vio-
late the Act in tacking on another 27 days to Hewitt’s suspen-
sion. Respondent was well aware of Mark Hewitt’s union ac-
tivities, which included not only his representation of Kevin
Cripe on August 4, but also his position as the Union’s finan-
cial secretary, safety committee person and tube mill steward
(Tr. 57, 196). Further, Respondent’s animus towards Hewitt’s
union activities is established by its interrogation of him on
June 23, 2005, regarding his reason for leaving the plant early
on June 21, to attend the monthly union meeting.
I also infer that the additional 27 days suspension was moti-
vated by Respondent’s animus towards the Union and Hewitt’s
union activities in particular. I draw this inference from the
fact that Respondent ignored the normal progression of its dis-
ciplinary procedure by adding the 27 days, without any satis-
factory nondiscriminatory explanation for doing so.
Respondent issued Hewitt a formal discipline report on May
6, 2005. On the previous day, Hewitt was unhappy with the
way in which a maintenance crew had hooked a motor to his
crane. He used the word “f—ing” as an adjective over the plant
radio. Respondent imposed a “one on one” discussion in part
because the radio is used in Alcoa’s administrative offices.
There is no indication that Hewitt directed his profanity at any
individual.
Respondent’s formal discipline report form indicates that
normally a “one on one” discussion is followed by a written
warning, a 1-day suspension and a 3-day suspension before
Respondent imposes a 3-day plus 27-day suspension. Alcoa
has offered no explanation as to why Hewitt’s prior offense, a
far less serious matter, warranted the imposition of an addi-
tional 27-day suspension for his outburst on August 4.
On the other hand, the record is replete with evidence of
animus towards the Union at this time and towards Hewitt’s
union activities in particular—most notably his leaving work
early on June 21 to attend the monthly union meeting. I find
that but for the Respondent’s animus towards the Union and
Hewitt emanating from the controversies surrounding the June
21 union meeting as well as the “fallout” from the TPM event,
it would not have imposed the additional 27-day suspension. I,
therefore, find that Respondent violated Section 8(a)(3) and (1)
in this regard.12

11 By way of contrast, the alleged discriminatee in Felix Industries,
331 NLRB 144 (2000); 339 NLRB 195 (2003) on remand), made his
comments to a supervisor on the telephone and thus no other employees
heard or observed his statement. The Board found therefore that the
discriminatee’s comments did not have any direct impact on workplace
discipline.
12 Respondent, in its brief, overlooks and ignores the fact that the
Union alleged a violation of Sec. 8(a)(3) and (1) in its charge and that
ALCOA, INC. 1233
Union Information Requests
Complaint paragraphs 7 alleges that Respondent violated
Section 8(a)(5) in refusing to provide information requested by
the Union in January 2005 which the General Counsel and
Union allege are relevant and necessary to the Union’s duties as
collective-bargaining representative for unit employees.
Paragraph 7(d) concerns grievance T & D13 02-04 filed on
behalf of unit employee Kevin Marsell, who apparently had
been disciplined for an alleged drug offense. On January 17,
2005, the Union requested a chain of custody form for
Marsell’s drug tests and a copy of all test results for the last 2
years in which Lifeloc Technologies was involved in testing
any Alcoa employee at Lafayette. On February 18, 2005, Re-
spondent, by Human Resources Supervisor Debby Spidel, in-
formed the Union that it needed a release from Marsell for the
chain of custody form pertaining to his tests and that it would
not provide any test data for any other employee without a re-
lease. Since February 18, Respondent has changed its policy
and no longer requires a release for medical records pertaining
to the grievant. The Union received the chain of custody
documents in May 2005.
Complaint paragraph 7(e) concerns information requests
made by the Union in connection with the processing of griev-
ance on behalf of unit employee Troy Jones. Respondent sent
Jones for drug tests on several occasions. The Union asked for
documentation as to whether Jones had been paid for the time
that he was being tested. Alcoa sent the Union time and atten-
dance records indicating that Jones did not lose any time, but it
did not send the Union copies of its payroll register, which
showed what Jones was actually paid (R. Exh. 27; Tr. 426–
427). However, an employee’s pay is based on the timeclock
readings that were provided to the Union.
Paragraph 7(f) relates to an information request filed in con-
nection with grievance LR 17-04, concerning unit employee
Duane Lord. Among the documents requested were alcohol
test results for any employee in which the result was .001 or
higher and the copies of documentation of any discipline that
was administered as a result of such tests. The Union indicated
that it believed such documentation existed for two individuals,
one of whom was Jeffrey Suralt. Respondent, on February 18,
2005, informed the Union that it would not provide testing
information without a signed release from each employee iden-
tified and in any event would not provide information regarding
Suralt, who it asserts is a salaried employee (R. Exh. 18).
Paragraph 7(g) relates to grievance Ext. (extrusion) 27-04,
filed on behalf of unit employee Darrell Weathers. Weathers
was disciplined for violating Respondent’s lockout procedure
and thus exposing himself to a very serious safety hazard. The
Union asked for information regarding discipline for nonunit
employees, Dick Wilson and Kathy South (alleged lockout-tag
out violations) and Human Resources Supervisor Debby Spidel
(an alleged failure to comply with Respondent’s safety rule

the General Counsel alleged that Hewitt’s suspension violated Sec.
8(a)(3) and (1) in the complaint. The General Counsel did not proceed
exclusively, or even primarily, on the theory that Hewitt’s suspensions
violated Sec. 8(a)(4) and (1).
13 Signifying that the employee works in the tool and die department.
regarding the wearing of safety glasses). The Company re-
sponded by acknowledging that its safety rules applied to all
employees, but that the Union was not entitled to information
regarding discipline taken or not taken with regard to salaried
employees.14 Eventually, Respondent provided the information
regarding Kathy South to the Union.
Complaint paragraph 7(h) relates to an information request
concerning grievance LR-16-04, which was filed on behalf of
Steve Niece, an employee who was terminated for missing
work 6 consecutive days without leave. The Union asked that
Respondent verify the attendance record of another employee,
Kimberly Olands and to verify whether she was on Family
Medical Leave Act (FMLA), or any other type of leave, any-
time between June 17 and 30, 2004. It also asked for informa-
tion indicating the reason(s) why Respondent denied Niece
leave for June 14–18 and 21, 2004.
On February 25, 2005, Respondent informed the Union that
Kimberly Orland’s attendance record was provided on February
4, and that this record was accurate. The Union contends that it
received conflicting records regarding Orland’s attendance and
that Respondent never clarified which records were correct.
Respondent also informed the Union that it needed a release
to give it any of Niece’s medical information. Apparently,
sometime after February 25, Respondent decided that it did not
need a release to provide the Union the grievant’s medical in-
formation, but the Union contends that it did not have any in-
formation relating to the reasons for which Niece was denied
leave. Respondent contends that the information provided to
the Union answers this inquiry in that it contains a note from
Niece’s physician indicating that he was able to work on the
days in question.
Case 25–CA–29860: This case involves oral requests by the
Union in January 2006, which were followed up by written
requests asking for specific information regarding disciplinary
measures Respondent took against two supervisory employees,
Mike Howe and Theresa Spitznagel.
Supervisor Mike Howe was approached by Robert Bran-
stetter, a bargaining unit employee. I assume this occurred
sometime during 2005. Branstetter alleged that Howe was
performing bargaining unit work. After some discussion,
Howe told Branstetter to “get the f–ck out of here.”
On another occasion, I assume in 2005, Supervisor Theresa
Spitznagel grabbed the sleeve of bargaining unit employee
Jerry Barnett and said something like, “[D]on’t you walk away
from me.”
Respondent has been willing to inform the Union only that it
took corrective action with regard to these incidents. It has
refused to respond to the Union’s requests for specific informa-
tion as to the manner in which these supervisory employees
were disciplined.
The Union alleges that this information is relevant to its abil-
ity to process grievances, particularly those of bargaining unit
employees Mark Hewitt, Kevin Cripe, and Curtis Bray. As
discussed earlier, Hewitt was suspended for 30 days for calling

14 The Company’s refusal to provide Wilson’s records on February
4, 2005, appears to be the earliest violation of Sec. 8(a)(5) in this mat-
ter, Exh. R-10.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1234
a supervisor “an egotistical f—er” during a grievance meeting
regarding Cripe. Cripe was suspended for 3 days for telling his
supervisor that his inquiry was the stupidest f—ing question
he’d ever heard. Bray was suspended for 3 days for telling his
supervisor, Jennifer Vandergrift, that “he would mess with her,
if she messed with him.”15
The Union contends the information regarding the discipline
meted out to Howe and Spitznagel is relevant to the Hewitt,
Cripe, and Bray grievances in assisting them in determining
whether the bargaining unit employees are being treated dispar-
ately when compared to salaried employees. Respondent con-
tends that supervisory discipline is not relevant because it has
means available for correcting supervisor conduct, i.e., denying
promotions that are not available in correcting the conduct of
bargaining unit employees. Additionally, Respondent argues
that to give the Union specific information regarding the disci-
pline imposed on supervisory personnel would undercut the
supervisor’s authority in managing the workplace.
Analysis
Generally Applicable Principles
When a collective-bargaining representative seeks informa-
tion from an employer regarding matters pertaining to bargain-
ing unit employees, the request is presumptively relevant and
the employer generally has a duty to provide such information.
However, when a union seeks information concerning matters
outside the bargaining unit, the union is required to make a
showing of relevancy and necessity. However, the burden of
establishing relevancy and necessity is not an exceptionally
heavy one. The union must show a probability that the desired
information is relevant, and that it would be of use to the union
in carrying out its statutory duties and responsibilities, Frito-
Lay, Inc., 333 NLRB 1296 (2001).
In the instant case, the Union made it clear to Respondent
that it sought the disciplinary records of salaried employees in
order to determine whether certain unit members were being
treated in a disparate manner. Since Respondent concedes that
its salaried employees are held to the same standards of conduct
as unit employees, the Union has met its burden of showing
relevancy and necessity with respect to those salaried employ-
ees who committed comparable offenses to those for which unit
employees were disciplined, Holiday Inn on the Bay, 317
NLRB 479, 482 (1995).
In dealing with union requests for relevant but assertedly
confidential information, the Board is required to balance a
union’s need for the information against any legitimate and
substantial confidentially interest established by the employer.
However, an employer possessing the information and refusing
to disclose it on confidentiality grounds has a duty to seek an
accommodation through the bargaining process, Exxon Co.
USA, 321 NLRB 896 (1996). The burden of formulating a
reasonable accommodation is on the employer; the union does
not need to propose a precise alternative to providing the re-

15 Respondent has offered to settle the Cripe, Hewitt, and Bray griev-
ances. The Union has not accepted Alcoa’s offers and all three matters
are pending arbitration. On April 25, 2006, 3 months after the third-
step grievance meeting at which Bray’s suspension was discussed,
Respondent offered to reduce his discipline to a written warning.
quested information unedited, Borgess Medical Center, 342
NLRB 1105 (2004). Potential avenues for accommodation
include redaction of confidential information and protective
orders.
Unreasonable delay in furnishing information relevant to the
processing of grievances and contract negotiations is as much a
violation of the Act as a refusal to furnish any information at
all, Bundy Corp., 292 NLRB 671 (1989). The record herein
establishes that much of the information requested by the Union
in January 2005 was furnished to it by Respondent in May
2005, after Respondent initially refused to furnish this material.
Since the General Counsel did not litigate this matter on a the-
ory of unreasonable delay and because I have no basis, on this
record, for determining whether or not the delay was unreason-
able, I dismiss all the complaint items relating to information
that was furnished in May 2005.
Principles Applied to the Facts Herein
I dismiss paragraph 7(d) of the complaint relating to the Un-
ion’s request for the chain of custody documents relating to
Kevin Marsell on the grounds that they were provided in May
2005. It is unclear from this record whether or not Respondent
has provided tests results for other employees. If it has not
done so, I will order Respondent to furnish the Union with
these results and negotiate to seek an accommodation with the
Union if it claims that these results are confidential.
Regarding paragraph 7(e) I find a violation and will order
Respondent to provide the Union with copies of its payroll
register so that the Union can be certain as to what Troy Jones
was actually paid.
I find that Respondent violated the Act as alleged in com-
plaint paragraph 7(f). It has not sought an accommodation with
the Union regarding the test results of employees whose tests
for blood alcohol were .001 or higher and the disciplinary re-
cords of salaried employee Jeffrey Suralt may well be relevant
to the issue of whether grievant Duane Lord was disparately
disciplined.
With regard to paragraph 7(g), I find a violation with regard
to the disciplinary records of Dick Wilson, but not with regard
to Debby Spidel. The Union sought the disciplinary records of
these two salaried employees to compare them with the disci-
pline of unit employee Darrell Weathers. Wilson’s and Weath-
ers’ violations both involve Respondent’s lockout procedure, a
very important safety matter, also covered by Occupational
Safety and Health Administration (OSHA) regulations. Wil-
son’s disciplinary record may be relevant to determining
whether Weathers was treated disparately in comparison.
Spidel’s records have not been shown to be relevant. She ap-
parently failed to wear safety glasses, an offense not relevant to
the discipline meted out to Weathers.
I affirm the violation alleged in paragraph 7(h). Respondent
will be ordered to produce all records requested which may
bear upon the question as to whether unit employee Steve
Niece was treated disparately when compared to Kimberly
Olands. If Respondent maintains that anything in Olands’ re-
cords is confidential, it must negotiate an accommodation with
the Union, for example, a possible redaction of confidential
information.
ALCOA, INC. 1235
Regarding Case 25–CA–29860, I find that Respondent vio-
lated Section 8(a)(5) in refusing to furnish the Union the disci-
plinary records of salaried employees Mike Howe and Theresa
Spitznagel. Howe’s offense, i.e., telling a unit employee to “get
the f–ck out of here,” may be useful to the Union in its arbitra-
tion of the Cripe, Hewitt, and Bray grievances. Particularly
since Hewitt’s punishment, even if reduced to 3 days, is predi-
cated on his prior offense of using the word “f–ck” over the
radio, the discipline imposed upon Howe may be relevant to his
arbitration.
Sptiznagel’s discipline, similarly, may be relevant to the dis-
cipline imposed upon unit employee Curtis Bray, who was first
given a 3-day suspension, later reduced to a written warning,
for allegedly threatening and/or being insubordinate to Supervi-
sor Jennifer Vandergrift.
SUMMARY OF CONCLUSIONS OF LAW
Respondent, Alcoa, Inc., at its Lafayette, Indiana facility,
violated Section 8(a)(5) and (1) of the Act by unilaterally
changing its leave policy to prohibit unit employees from tak-
ing unpaid leave to attend monthly union meetings.
Respondent violated Section 8(a)(1) of the Act by threaten-
ing employees with discipline if the left Respondent’s facility
early on June 21, 2005; in informing employees that Respon-
dent would engage in surveillance to determine who was leav-
ing early on that date and by engaging in such surveillance on
June 21.
Respondent violated Section 8(a)(1) on June 23, 2005, by in-
terrogating unit employees Mark Hewitt and Jim Howard as to
the reasons for which they left the Lafayette facility early on
June 21.
Respondent violated Section 8(a)(3) and (1) of the Act in
contracting out the TPM event at the facility in April 2005 in
order to retaliate against the Union’s insistence that bargaining
unit employees perform bargaining unit work.
Respondent violated Section 8(a)(3) and (1) of the Act in
suspending Mark Hewitt for an additional 27 days for his
comments at the August 4, grievance meeting.
Respondent violated Section 8(a)(5) and (1) of the Act in
failing to provide the Union with the following information:
All drug test results not previously provided as re-
quested in connection with grievance T & D 02-04;
All records not previously provided that were re-
quested by the Union in connection with grievance LR 17-
04, including disciplinary records regarding Jeffrey Suralt;
Payroll register documents pertaining to Troy Jones, as
requested by the Union;
Disciplinary records pertaining to salaried employee
Dick Wilson’s violation of Respondent’s lock-out/tag-out
rules;
All records relating to the treatment of Kimberly
Olands, as compared to grievant Steve Niece and any
documents not previously provided regarding the reasons
for which Niece was denied leave;
Disciplinary records previously requested regarding
salaried employees Mike Howe and Theresa Spitznagel.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]