American Steel Works

National Labor Relations Board - Board Decisions

Aug 31, 1982

263 N.L.R.B. 826 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Steel Works and Gerald W. Ford, Philip
Comerford, and John E. Sumner, Jr. Cases 17-
CA-8668, 17-CA-8707, and 17-CA-8825
August 31, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 15, 1979, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions, with comments; and the General Counsel
filed a brief, with an appendix, in support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decisicn in light of the exceptions and brief
and has decided to affirm the rulings,' findings,
2
and conclusions of the Administrative Law Judge
and to adopt his recommended Order,
3 as modified
herein. 4
The Administrative L,aw Judge found, and we
agree, that employee Ford was discharged in viola-
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Producrts.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
a In the seventh and eighth paragraphs of sec. B,3, of his Decision, the
Administrative Law Judge stated that employee Sumner attended the un-
employment compensation hearing concerning employee Ford. While the
record shows that a number of employees attended the hearing, there is
nothing to indicate that Sumner was among them. However, Sumner's
signature was the third one appearing on a document certifying that Ford
had not influenced employees to participate in a wildcat strike. This doc-
ument was received in evidence at that hearing and was shown to Re-
spondent's representatives during that hearing.
a In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
4 In par 1(d) of his recommended Order, the Administrative Law
Judge uses the broad cease-and-desist language "in any other manner."
However, we have considered this case in light of the standards set forth
in Hickmottrr Foods Inc., 242 NLRB 1357 (1979), and have concluded that
a broad remedial order is inappropriate since it has not been shown that
Respondent has a proclivity to violate the Act or has engaged in such
egregious or widespread misconduct as to demonstrate a general disre-
gard for the employees' fundamental statutory rights. Accordingly, we
shall modify the recommended Order by substituting the narrow injunc-
tive language "in any like or related manner."
We shall further modify the recommended Order by incorporating
therein a provision requiring Respondent to expunge from all its records
and files any references to the unlawful discharges of employees Ford
and Sumner and to the unlawful suspension of employee Comerford, and
to notify said employees, in writing, that Respondent has taken such
action and that evidence of the unlawful discharges or of the unlawful
suspension will not be used as a basis for future personnel action against
them.
Finally, we shall modify par. 2(a) of the recommended Order to in-
clude therein the appropriate reinstatement language.
263 NLRB No. 108
tion of Section 8(a)(4), (3), and (1), and that em-
ployee Sumner was discharged in violation of Sec-
tion 8(a)(3) and (1).
Subsequent to the issuance of the Administrative
Law Judge's Decision in this proceeding, the
Board issued its decision in Wright Line, a Division
of Wright Line, Inc., 251 NLRB 1083 (1980), in
which it set forth the test it will henceforth employ
in dual-motive cases. Under the Wright Line test
the General Counsel is required to make a prima
facie showing sufficient to support the inference
that protected conduct was a "motivating factor"
in the employer's decision. Once this is established,
the burden will shift to the employer to demon-
strate that the same action would have taken place
even in the absence of the protected conduct. Al-
though the Administrative Law Judge did not have
the Wright Line test before him, he did make all the
findings which are necessary to the application of
that test.
As to the violation concerning Ford, the Admin-
istrative Law Judge concluded that Ford's protect-
ed activity was one of the reasons for his dis-
charge. As to whether the discharge would have
taken place even in the absence of the protected
conduct, the Administrative Law Judge specifically
found that "Ford would not have been discharged
but for his prior protected activity including the
filing of grievances and the filing of a charge with
the Board and a complaint with OSHA." Thus, the
Administrative Law Judge found that the dis-
charge was improperly motivated, and that it was
not established that the discharge would have oc-
curred absent such improper motivation. In light of
these findings, with which we are in full agree-
ment, we conclude that under the test in Wright
Line, supra, Respondent's discharge of Ford violat-
ed the Act as alleged in the complaint. Therefore,
we adopt the Administrative Law Judge's finding
that Respondent discharged Ford in violation of
Section 8(a)(4), (3), and (1) of the Act.
As to the violation concerning Sumner, the Ad-
ministrative Law Judge concluded that the on-
going union activity was a cause of Sumner's dis-
charge, and that absent such activity Sumner
would not have been discharged. Thus, the Admin-
istrative Law Judge found that Sumner's discharge
was improperly motivated, and that Respondent
did not establish that the discharge would have oc-
curred absent such improper motivation. Again, in
light of these findings with which we are in
accord, we conclude that the violation alleged has
been sustained. Therefore, we adopt the Adminis-
trative Law Judge's finding that Respondent dis-
charged Sumner in violation of Section 8(a)(3) and
(1) of the Act.
826
AMERICAN STEEL WORKS
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,
American Steel Works, Kansas City, Missouri, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph l(d):
"(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the following for paragraph 2(a):
"(a) Offer Gerald W. Ford and John E. Sumner,
Jr., immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
other substantially equivalent positions of employ-
ment, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and
make them and Philip Comerford whole for any
losses they may have suffered as a result of the dis-
crimination against them pursuant to the provisions
set forth in the remedy section above."
3. Insert the following as paragraph 2(b) and re-
letter the following paragraphs accordingly:
"(b) Expunge from its records and files any and
all references to the unlawful discharges of em-
ployees Ford and Sumner and to the unlawful sus-
pension of employee Comerford, and notify said
employees, in writing, that this has been done and
that evidence of the unlawful discharges or of the
unlawful suspension will not be used as a basis for
future personnel action against them."
4. Substitute the attached Appendix A for that of
the Administrative Law Judge.
APPENDIX A
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 parties participated
and were given the opportunity to call, examine,
and cross-examine witnesses and to present evi-
dence, the National Labor Relations Board found
that we have violated the National Labor Relations
Act, as amended, in certain respects. We have been
ordered to stop this activity, to post this notice,
and to abide by its terms.
WE WILL NOT suspend, discharge, or other-
wise discriminate against our employees be-
cause of their interest in, or activity on behalf
of, United Steelworkers of America Local
Union No. 1963 or any other labor organiza-
tion.
WE WILL NOT suspend, discharge, or other-
wise discriminate against our employees be-
cause they engage in concerted activity pro-
tected by Section 7 of the Act.
WE WILL NOT discharge or otherwise dis-
criminate against our employees because they
file charges with the National Labor Relations
Board or any other agency.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL offer Gerald W. Ford and John E.
Sumner, Jr., immediate and full reinstatement
to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions of
employment, without prejudice to their senior-
ity or any other rights or privileges previously
enjoyed, and WE WILL make them and Philip
Comerford whole for any loss of wages or
benefits they may have suffered as a result of
the discrimination against them, with interest.
WE WILL expunge from our records and
files any and all references to the unlawful dis-
charges of employees Ford and Sumner and to
the unlawful suspension of employee Comer-
ford, and WE WILL notify these employees, in
writing, that this has been done and that evi-
dence of the unlawful discharges or of the un-
lawful suspension will not be used as a basis
for future personnel action against them.
AMERICAN STEEL WORKS
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: These
consolidated cases were heard before me on April 3, 4,
and 5, 1979, upon the General Cousel's complaints which
alleged generally that on November 9, 1978,1 the Re-
spondent threatened employees in violation of Section
8(a)(1) of the National Labor Relations Act, as amended,
29 U.S.C. § 151, et seq.;2 on December 14 suspended
Philip Comerford, on December 20 discharged Gerald
W. Ford, and on March 6 discharged John E. Sumner,
Jr., all in violation of Section 8(a)(1) and (3) of the Act.
All dates are in late 1978 or early 1979 unless otherwise indicated.
a The General Counsel argues in his brief that a threat was made to
Philip Comerford on December 18 but this was not alleged in any of the
complaints. While there is some evidence concerning this event, the
matter was not fully litigated nor, in fact, has there been any motion to
amend any of the complaints to include such an allegation. Accordingly,
nc finding or conclusion will be made concerning this contention.
- -
827
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition, the discharge of Ford is alleged to be viola-
tive of Section 8(a)(4).
The Respondent generally denies that it engaged in
any unfair labor practices and affirmatively contends that
it suspended Comerford and discharged Ford and
Sumner for cause.
Upon the record as a whole,3 including my observa-
tion of the witnesses, briefs, and arguments of counsel, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The Respondent is a Missouri corporation engaged in
the manufacture and nonretail sale of steel products at a
facility located in Kansas City, Missouri. In the course
and conduct of its business, the Respondent annually
purchases directly from points outside the State of Mis-
souri goods, products, and materials valued in excess of
$50,000. The Respondent annually sells and delivers di-
rectly to points outside the State of Missouri products
valued in excess of $50,000. The Respondent admits, and
I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America Local Union No.
1963 (herein called the Union) is admitted to be, and I
find is, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
For many years the Union has represented the Re-
spondent's production employees. The Respondent and
the Union have been parties to successive collective-bar-
gaining agreements, the most recent of which was ex-
ecuted on October 12, 1978, effective from October 1,
1977, to October 1, 1980. During the material time here
there were approximately 29 employees in the bargaining
unit, all of whom, presumably, were members of the
Union pursuant to the union-security clause.
The contract also contains a grievance and arbitration
clause which outlines the manner in which disputes aris-
ing under the agreement shall be decided. This clause in-
cludes a no-strike pledge.
Gerald W. Ford came to work for the Respondent the
second time in June 1978. In August he joined the Union
and sometime in the early part of October he was ap-
pointed by Union President Benjamin Panuco to fill the
remainder of the treasurer's term.
Thereafter, Ford was an officer of the Union, includ-
ing service as a committeeman during the latter stages of
contract negotiations and is a signatory to the contract.
As with the other officers, Ford functioned as a union
s The General Counsel's motion to correct the transcript is granted.
Attached as Appendix B is the list of corrections. [Appendix B has been
omitted from publication.]
steward, the bargaining unit being too small to justify
stewards in addition to the officers.
Shortly after becoming a union officer, Ford under-
took to complain on behalf of fellow employees about a
variety of matters involving such things as the lunch-
room, excusable absences, and job assignments. These
complaints were in the form of grievances, the first three
of which are dated October 9, composed by Ford, and
signed by him as well as by a number of other employ-
ees. These grievances received negative answers from
Willard F. Grindley, the Company's vice president and
principal officer in dealing with production employees.
On October 24 Ford filed another grievance which
was answered by Grindley that day. In his answer,
Grindley referred to an October 12 meeting at which
Grindley had torn up one of Ford's grievances. And he
added, "You mentioned on October 12, 1978 that you
guessed you would terminate your employment with us
if we so wished. Please advise when you can do so; this
would surely be mutually beneficial and we offer formal
invitation for you to leave, since it seems impossible to
work with you in a reasonable manner."
On October 26 Ford filed a charge with the National
Labor Relations Board alleging that since on or about
October 9 the Respondent had failed to process griev-
ances pursuant to the grievance and arbitration proce-
dure of the collective-bargaining agreement.4
On November 7, Ford typed a grievance to be filed by
employee Paul Cook. Cook presented the grievance to
Shop Superintendent Joseph Korasac who refused to
accept it on grounds that it had been typed by Ford and
not written in longhand by Cook.
Also on November 7 Ford filed a grievance alleging
that he was being forced to violate the contract by ac-
cepting an order to work out of his job classification.
This grievance too was answered by Grindley with the
characterization that it was not "a grievance."
On December 6 Ford filed a complaint with the Occu-
pational Safety and Health Administration which result-
ed in an OSHA inspection on December 13. OSHA In-
spectors Judy Bukowski and William Jackson arrived at
the Respondent's plant around 9 a.m. and served the
complaint on Grindley.
During this initial meeting, Grindley, noting that the
complaint had been signed by Ford, said, "he is a trou-
blemaker" pointing to a stack of papers on his desk.
Preparatory to the inspection, Jackson asked Grindley
if they could have a representative from the Union
present and accompany them. Panuco was called and
joined discussion and the subsequent walk-through of the
plant.
About 10:30 a.m. as they were proceeding with the in-
spection, Philip Comerford approached the group and
asked if he was to go along, inasmuch as he had been
elected the month before as the union safety officer, a
fact which was noted on the OSHA complaint. As will
be discussed in more detail below, Grindley told Fore-
man Rudy Beretta to "get this man back to work," an
order which Beretta testified Comerford ignored some
I This charge was apparently dismissed or withdrawn and is not the
basis for any of the complaints here.
828
AMERICAN STEEL WORKS
four times during the course of 10 minutes. Comerford
finally did return to work after being advised by Panuco
that Panuco would continue to be the Union's repre-
sentative during the inspection.
On December 14, after consultation with Korasac and
Beretta, Grindley determined to discipline Comerford for
his "insubordination" in being away from his assigned
work station on December 13 and not immediately re-
turning to it when told to do so by Beretta. Thus Comer-
ford was given a 1-1/2-day suspension.
According to the testimony of Ford and Cook, about
1:15 p.m. that day, Ford announced that he was feeling
ill, as had happened in the past, and he would go home
for the rest of the day. Ford testified that he told Beretta
he was sick and asked if he could leave; he also testified
that he asked Korasac for permission to go home. Al-
though Korasac was a witness for the Respondent, he
did not deny Ford had asked permission to leave. While
Beretta denied that Ford asked permission of him, he did
testify that Korasac told him that Ford had said that he
was sick and to write such on Ford's timecard. And Ber-
etta did so.
The only real difference in the testimonial versions of
Ford and Beretta is whether Ford in fact talked to Ber-
etta or just talked to Korasac who then told Beretta that
Ford went home sick. In any event, it is clear that Ford
was given permission to leave work on the afternoon of
December 14 due to illness.
Thus, Ford punched out at 1:31 p.m. on December 14.
Thereafter, from 1:32 until 1:52, 26 other employees
punched out and finally Panuco left at 2:38.
Faced with what the Union later conceded was an un-
lawful wildcat strike, the Respondent suspended all the
employees until January 2, 1979. Then Grindley was
contacted by William G. Lincoln, the subdistrict director
for the Union, concerning getting the men back to work.
Grindley, Lincoln, and officers of the Union along with
the Respondent's president, David Smart, met on De-
cember 18. During the course of this discussion, the
Union admitted that the strike was unlawful but contend-
ed that the Respondent ought to put the men back to
work, then they could take their respective positions
with regard to Comerford and Ford, Grindley having
suggested that Ford resign or be kicked out of the
Union, which the Union declined to do.
The Company did agree to reinstate all the employees
the next day but determined at the time to discharge
Ford because, according to Grindley, he had caused the
wildcat strike. Grindley said he had six employees who
would so testify.
On or about January 29, Ford circulated a petition
which stated, in effect, that the signatories certified that
Ford did not influence them to walk out or participate in
the wildcat strike on December 14. This was signed by
24 of the production employees. And, it was offered into
evidence during Ford's unemployment compensation
hearing held on the morning of March 6.
Following the return to work of those employees who
participated in Ford's unemployment compensation hear-
ing on March 6, Floyd Hamilton made a statement to the
effect that if Ford did not return his tools (Hamilton's
tools having been stolen sometime in late December
along with tools of some other employees) he would tell
management that Ford in fact had caused the wildcat
strike. After making this statement, Hamilton overheard
two employees, whom he identified as Frank Smith and
John Sumner, say something to the effect that if Hamil-
ton spoke against Ford he would wind up in "little
pieces." Hamilton then ran to Grindley's office and in an
agitated manner stated that he was being threatened with
being cut up in little pieces.
Grindley testified that he told Hamilton to identify the
individuals who were making these threats and he would
discharge them. Hamilton declined to do so, saying that
he did not need Grindley's help. From then throughout
the rest of the day there were conversations between
Hamilton and Grindley and between Hamilton and other
employees concerning this matter.
Then about 4 p.m., at the end of the shift, Sumner ap-
proached Hamilton. According to Hamilton, Sumner
told him that had he said anything identifying Sumner he
had better not walk in the street, or words to that effect.
This, according to Hamilton, precipitated him going
once again to Grindley and pointing out that Sumner
was the one who had made the threats. Grindley went to
Sumner and told him that he was being fired for having
threatened Hamilton. Grindley testified that he generally
respected Sumner's work and was reluctant to fire him,
but he felt he had to do so. And he further said, "All I
know is there were, I think he said, 29, 1 am not sure, 29
guys who signed a document that stated that Gerald
Ford did not lead a wildcat strike. And he said not one
of them would come forward and tell the truth. He said
this will all come to a head the third of April."
B. Analysis and Concluding Findings
1. The discharge of Gerald W. Ford
The record here clearly establishes that, shortly after
becoming a union member in August 1978, Ford was ap-
pointed to be an officer in the Union and immediately
thereafter began taking an active role in union affairs,
particularly including filing grievances for what he per-
ceived to be contract violations on the part of the Com-
pany. Ford also filed an unfair labor practice charge in
October as well as a complaint with OSHA, which re-
sulted in an OSHA inspection on December 13.
While there is no showing of general union animus on
the part of the Respondent, the record abounds with evi-
dence that Grindley harbored animus toward Ford be-
cause of his filing grievances, as well as charges with the
Board and OSHA. Indeed, Grindley admits that, for
some 4 weeks prior to the wildcat strike on December
14, he had considered discharging Ford because of these
acts-"during improperly filed grievances." And in one
of exchanges of correspondence between Grindley and
Ford, Grindley invited Ford to resign.
But the Respondent contends that Ford's activity in
October and November did not play a part in his dis-
charge-that he was discharged solely because the Re-
spondent believed he led the wildcat strike.5
f It appears that the strike was caused by the Respondent's suspending
Comerford. In view of my conclusion, infra, that the Respondent violat-
Continued
829
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is little question that Ford's prestrike activity
was a substantial source of annoyance to Grindley, to the
point that he actually considered discharging Ford be-
cause of it. That Ford's conduct, irrespective of its char-
acterization by Grindley, was protected activity is clear.
He was a union officer filing grievances relating to the
contract. Even if they were factually erroneous, a matter
which need not be decided, to file grievances, even a lot
of grievances, clearly is activity protected by Section 7
of the Act. E.g., Farmers Union Cooperative Marketing
Assn., 145 NLRB 1 (1963). Equally protected is filing a
charge with the Board as well as filing a complaint with
OSHA relating to health and safety in the plant. E.g., G.
V R. Inc., 201 NLRB 147 (1973). Thus to the extent that
Grindley was motivated by Ford's activity in October
and November the discharge was violative of Section
8(a)(l), (3), and (4). Professional Ambulance Service, Inc.,
232 NLRB 1141 (1977).
At an October or November meeting between manage-
ment and the Union, Grindley referred to Ford as the
one starting all the "trouble." Grindley stated on Decem-
ber 13 to the OSHA inspectors that Ford was a "trouble-
maker." And following his discharge, Ford talked to
Korasac who told him "you are fired for being a trouble-
maker," a statement not denied by Korasac.
While Korasac may have been referring to the Compa-
ny's feeling that Ford initiated the wildcat strike, in view
of the fact that "trouble" and "troublemaker" were
words used to describe Ford prior to the strike, I con-
clude that Korasac also included the protected activity
outlined above.
Given Ford's substantial activity in October and No-
vember, and the animus it generated, some of which is
admitted to by Grindley, and the statement by Korasac
following Ford's discharge, I conclude that in significant
part the Company was motivated by Ford's protected
activity.
Furthermore I do not credit Grindley that this activity
was not a factor. I base this not only on Grindley's gen-
erally negative demeanor during the course of the hear-
ing but also on the documentary evidence which shows
Grindley's substantial animus toward Ford as a result of
this activity. It strains credulity to believe that, given
Grindley's animus, such would not have been taken into
consideration by him in reaching the decision to dis-
charge Ford following the wildcat strike.
However, inasmuch as Grindley did not in fact dis-
charge Ford prior to the wildcat strike, although having
contemplated it, it is more reasonable than not to infer
that but for the wildcat strike Ford would not have been
discharged when he was. In short, the wildcat strike was
also a significant factor in the Respondent's determina-
tion to discharge Ford. I believe from this record that in
ed the Act in suspending Comerford for his having engaged in protected
activity, the strike was arguably an unfair labor practice strike and, if so,
probably not a breach of contract. See Mastro Plastics Corp. and French-
American Reeds Manufacturing Co., Inc. v. N.LR.B., 350 U.S. 270 (1956).
However, since this matter was litigated on the premise that the strike
was an unlawful breach of contract, and because finding it to be an unfair
labor practice strike would riot alter the remedy herein, in view of my
conclusion that the discharge of Ford was motivated in part by his
having engaged in protected activity, I will treat the strike as having
been unprotected activity.
fact the Respondent was motivated both by Ford's previ-
ous protected activity as well as its belief that he led the
wildcat strike.
Further, I believe that, if Ford did not in fact lead the
strike on December 14, the surrounding circumstances
gave the Respondent ample reason to believe he did. The
Respondent's belief in this regard was certainly not un-
reasonable.
Basically I do not credit Ford's version that he inno-
cently left work sick on December 14 and that the others
engaged in the wildcat strike without any input from
him. It is undenied that Ford told Korasac that he was
going to go home sick and this was in fact written on his
timecard. It also is the testimony of both Ford and Cook
that Ford told Cook shortly after 1 o'clock that he was
sick and was going to go home. However, if this and
only this happened, then it does not seem reasonable that
Cook would have clocked out I minute after Ford. Had
Ford told Cook simply that he was going to go home
sick without this also being some kind of a signal, it does
not seem reasonable that Cook would have followed
him. To credit Ford would require concluding that
Cook, on his own, decided to lead the walkout.
In addition is the testimony of Theodore Malloy and
Donny Gurley, both of whom testified that a few min-
utes before 1:30 Ford told them that they were going to
strike. While Ford has a stake in the outcome of this
matter neither Malloy nor Gurley does. Further, I found
their testimony generally straightforward and their de-
meanor credible. Thus I credit them over Ford.
Finally that Ford, who for some 2 or 3 months had
acted as a leader among the men, would initiate a wild-
cat strike seems reasonable. I therefore discredit Ford's
denial that he sought employees to join him in a wildcat
strike. I conclude that he in fact did lead the strike. I fur-
ther discredit Ford's testimony on rebuttal examination
that upon hearing employees discuss the possibility of
striking on December 13 he told them not to do so until
he had had a chance the next day to discuss the Comer-
ford matter with management.
While it appears that neither Malloy nor Gurley told
the Respondent that Ford had contacted them until after
Ford had been discharged, nevertheless at the time of his
discharge there was reason to believe that Ford had led
the strike. He was a leader among the men with regard
to labor matters. He was the first one to clock out, fol-
lowed shortly by the remaining employees. Thus I be-
lieve that Grindley could reasonably conclude that Ford
had led the wildcat strike.
The Respondent is clearly permitted to discipline
anyone involved in an unlawful strike; and certainly
could have discharged the individual it perceived to be
the leader while reinstating the others. Precision Castings
Company, Division of Aurora Corporation, a wholly owned
subsidiary of Allied Products Corporation, 233 NLRB 183
(1977). However, the Respondent could not rely on
Ford's strike activity to justify discharging him for filing
grievances under the contract and complaints with gov-
ernment agencies. Gould Corporation, 237 NLRB 881
(1978) (Member Truesdale dissenting from the 8(aX3)
830
AMERICAN STEEL WORKS
finding but concurring that the discharge violated Sec-
tion 8(aXl); Member Penello dissenting).
This, as Gould, is the rare duel-motive case where but
for the unprotected activity the employee would not
have been discharged, but nevertheless his discharge was
predicated upon his having previously engaged in pro-
tected activity. The Board has long held that where a
discharge is motivated at least in part by antiunion con-
siderations then the discharge is violative of Section
8(aX3). E.g., Wood Transformers, Inc., 226 NLRB 1112,
1116 (1976); Chrysler Corporation, Dodge Truck Plant, 232
NLRB 466 (1977). 6
I therefore conclude that Ford in fact led the wildcat
strike on December 14, that such was the reasonable
conclusion of the Respondent, and that this fact was a
substantial consideration in the Respondent's determina-
tion to discharge him. I also conclude, however, that
Ford would not have been discharged but for his prior
protected activity including the filing of grievances and
the filing of a charge with the Board and a complaint
with OSHA. The Respondent in discharging Ford violat-
ed Section 8(aXl), (3), and (4) of the Act.
2. The suspension of Philip Comerford
The Respondent contends that there was a safety com-
mittee consisting of Grindley and Panuco, the Union's
president, and that it was without knowledge that Co-
merford had anything to do with the safety committee or
being the union safety officer. However, at least from the
time the OSHA complaint was served upon Grindley,
Grindley was on notice that Comerford had been desig-
nated by the Union as the "safety officer." Such was
stated on the complaint.7
Although there are some differences in emphasis, both
sides attempting to characterize Comerford's actions in
the light most favorable to their particular position, there
is no real dispute concerning what happened on the
morning of December 13. After the OSHA inspection
started, Comerford learned of it and, inasmuch as he was
the safety officer, he sought out the inspection team to
see if he was supposed to participate. To do this, he had
to leave his work station. When he approached the
group, he was told by Beretta, on instructions from
Grindley, to go back to work. Comerford ignored this
order by Beretta and proceeded to ask if his presence
during the inspection tour was needed. When he was
told no, he did in fact return to work.
All this took no more than a few minutes and while it
might be characterized by Grindley as insubordination,
to some extent anytime an employee questions manage-
ment he is insubordinate.
But in the context of protected activity, as I find par-
ticipation in the OSHA inspection to be, such "insubordi-
nation" cannot justify disciplinary action.
The Respondent may very well have been justified in
withholding pay for the few minutes that Comerford was
i Liberty Mutual Insurance Ca v. N.LR.B., 592 F.2d 595 (Ist Cir.
1979), relied on by the Respondent. is not controlling.
I On the complaint, under Ford's signature, title, and address: "Note
Phil Comerford is our Safety Officer but he is in England." Presumably
at the time the complaint was filed Comerford was in England. He was
working on December 13.
away from his work station but to discipline him further
for seeking to engage in protected activity is clearly a
violation of the Act. Such is analogous to presenting a
grievance to the company on working time. Only where
the employer can show some overriding business interest,
say if Comerford had left a dangerous or irrepairable sit-
uation, could the discipline not be a violation of the Act.
See, e.g., N.L.R.B. v. Fansteel Metallurgical Corp., 306
U.S. 240 (1939); Plastilite Corporation, 153 NLRB 180
(1965). s
I therefore conclude that Comerford was disciplined
because he sought to determine whether or not he was
to participate in the OSHA inspection and that, in disci-
plining him for this, the Respondent violated Section
8(aXl1) and (3) of the Act.
3. The discharge of John E. Sumner, Jr.
Based on the generally credible testimony of Hamilton,
excitable though it may have been, I conclude that in
fact on March 6, after some employees returned from the
unemployment compensation hearing, Sumner did make
statements which Hamilton took to be threats to him.
Whether the threats were as substantial as Hamilton testi-
fied really need not be decided. I conclude that Hamilton
in fact went to Grindley stating that he had been threat-
ened, and that Grindley could reasonably believe him.
This is not a case where an employee engaged in pro-
tected activity threatens a coworker, in which the issue
is whether the employee loses "the protective mantle of
the Act." Nor is this a situation where the discharge
grew out of protected activity then engaged in by
Sumner, in which case motive is not dispositive, the issue
being whether the threat occurred. N.L.R.B. v. Burnup
& Sims, Inc., 379 U.S. 21 (1964). Rather, the issue here is
whether Sumner's threat was the real reason Grindley
discharged him. If so, then even if the threat could be
deemed insubstantial the discharge is not unlawful.
An employer does not violate the Act by discharging
an employee for a bad reason or even no reason. Irratio-
nally is not an unfair labor practice. However, where the
reason advanced for the discharge is not rational then
that fact may be considered to infer that the true motive
lies elsewhere. Shattuck Denn Mining Copp. v. N.L.R.B.,
362 F.2d 426 (9th Cir. 1966).
So here the nature of Sumner's threat as recounted to
Grindley by Hamilton must be viewed not in terms of
whether such would legally justify the discharge of one
engaged in protected activity: but, rather, whether absent
the overall protected activity here, Grindley would have
discharged Sumner.
I conclude that Grindley's discharge of Sumner was
motivated by the ongoing union activity of the employ-
ees. The threat was seized upon as an excuse for the dis-
charge. While I believe that Grindley would not have
I There is testimony and argument concerning whether Comerford
"lied" to the OSHA inspectors about the type of respirator furnished him
when painting as well as the fact that Comerford was ordered to shave
his beard. Neither of these matters, however, had anything to do with his
suspension and were not independently alleged to be unfair labor prac-
tices. They are, therefore, not further considered. and are mentioned only
because there is argument and testimony concerning them
831
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged Sumner absent Hamilton's accusation, I also
believe that, absent the union activity engaged in by vir-
tually all the employees, Grindley would not have dis-
charged a competent employee on the evidence then
before him. Thus I conclude that the ongoing union ac-
tivity was a direct and substantial cause of Grindley's
act.
Although Ford was Grindley's principal protagonist,
substantially all the bargaining unit was involved. Thus
on December 14 there were 29 employees in the bargain-
ing unit, 27 of whom walked out within a few minutes of
Ford. Twenty had signed a document in November de-
scribed by Grindley as "a memorandum by Gerald Ford
to all union members of United Steelworkers, Local
1963, stating a lie." Twenty-four signed the January 29
document by which they certified that Ford had not in-
fluenced them to walk out. This was offered into evi-
dence at Ford's unemployment compensation hearing on
March 6, and characterized by Grindley as a "lie."
From at least December 18 on, the gravamen of this
dispute involved Grindley's contention that Ford had in-
stigated an unlawful strike. Ford's defense included
having employees sign the January 29 document. March
6 was the first proceeding in which Ford's discharge was
litigated. Both by signing the "certificate" and being
present at the March 6 hearing Sumner aligned himself
with Ford and against Grindley.
It was this act of aligning with Ford which was the
true reason Grindley discharged Sumner on March 6,
after having been given the excuse to do so by Hamilton.
Indeed after he was discharged, Sumner asked Grindley
why and was told, "this will all come to a head the third
of April [the then scheduled hearing date for the unfair
labor practice complaints involving Ford and Comer-
ford]." While Grindley may very well have believed that
he was right and the employees, including Sumner, were
wrong in their defense of Ford, such clearly does not
justify his discharge of Sumner. As noted above, there is
ample evidence that Ford in fact instigated the strike.
Without more, however, such does not prove that
Sumner's act in signing the "certificate" or attending the
hearing was not protected. It may well be that Ford did
not influence Sumner. And there is no evidence he did.
Clearly for employees to defend the discharge of a
fellow employee is concerted activity protected by Sec-
tion 7, and it is this defense which motivated Grindley to
discharge Sumner. Since such also related to his mem-
bership and activity through the Union, the discharge
violated Section 8(a)(3) as well as Section 8(a)(1).
4. The alleged threat
The only allegation of an unlawful threat appears in
the complaint in Case 17-CA-8668 relating to Ford. It is
alleged that on November 9, 1978, Grindley threatened
an employee (presumably Ford) with discharge for
having filed a grievance and having engaged in union
and other protected activity.
I have not been referred to any testimonial evidence to
support this allegation, nor does my review of the tran-
script disclose any conversations on or about November
9 between Ford and Grindley in which Grindley made
such a threat. As noted above, Grindley certainly har-
bored animus toward Ford because he had filed a
number of grievances. And Ford in fact filed grievances
on November 9. These facts, however, are insufficient to
support finding the violation alleged. Accordingly, I
shall recommend that paragraphs 5(a) and 5(b) of the
complaint in Case 17-CA-8668 be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth above, oc-
curring in connection with its operations, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having concluded that the Respondent has engaged in
certain unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affirmative
action including offering Gerald W. Ford and John E.
Sumner, Jr., reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions of employment, without prejudice to their senior-
ity or other rights and privileges, and make them and
Philip Comerford whole for any losses they may have
suffered as a result of the discrimination against them in
accordance with the formula set forth in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (197 7).
9
Upon the foregoing findings of fact, conclusions of
law, the entire record in this matter, and pursuant to the
provisions of Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER'1
The Respondent, American Steel Works, Kansas City,
Missouri, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Suspending, discharging, or otherwise discriminat-
ing against employees because of their interest in or ac-
tivity on behalf of United Steelworkers of America
Local Union No. 1963.
(b) Suspending, discharging, or otherwise discriminat-
ing against employees because they engage in concerted
activity protected by Section 7 of the Act.
(c) Discharging or otherwise discriminating against
employees because they filed charges with the National
Labor Relations Board.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
9 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
10 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
832
AMERICAN STEEL WORKS
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Offer Gerald W. Ford and John E. Sumner, Jr.,
immediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to other substantially equiv-
alent positions of employment and make them amd Philip
Comerford whole for any losses they may have suffered
as a result of the discrimination against them pursuant to
the provisions set forth in The Remedy section above.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Kansas City, Missouri, facility the at-
tached notice marked "Appendix A."' Copies of said
" 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
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
The allegations in paragraphs 5(a) and 5(b) of Case 17-
CA-8668 are dismissed.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
833