Beta Steel Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1267 (N.L.R.B. 1998)

BETA STEEL CORP. 1267
Beta Steel Corporation and Dennis Holland. Case 25–
CA–25139
September 30, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On December 11, 1997, Administrative Law Judge Ar-
thur J. Amchan issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply to the General Counsel’s answer-
ing brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs2 and has decided to
affirm the judge’s rulings, findings,3 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Beta Steel Corporation, Port-
age, Indiana, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.

Walter Steele, Esq., for the General Counsel.1
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Valparaiso, Indiana, on October 27 and 28, 1997.
The charge was filed January 14, 1997, and the complaint was
issued on June 30, 1997.

1 The General Counsel’s request for permission to file a special re-
sponse to the Respondent’s reply brief is denied. In view of that denial,
we also deny the Respondent’s motion to strike the legal argument
contained in the General Counsel’s request.
2 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
3 The Respondent has excepted to the judge’s findings on the ground
that it was prevented from entering evidence at the hearing because it
had not been provided with the witness statements and other investiga-
tive materials prior to the hearing. As a result, the Respondent’s coun-
sel did not appear at the hearing or provide the witnesses subpoenaed
by the General Counsel. We agree with the judge that, under the
Board’s longstanding rules (see Sec. 102.118 of the Board’s Rules and
Regulations), the Respondent was not entitled to prehearing discovery.
Moreover, the Respondent’s counsel was so informed by the judge on
at least two occasions before the trial and warned of the consequences
to his client of his failure to produce the subpoenaed witnesses. The
Respondent’s subsequent failure even to appear at the hearing fore-
closes its opportunity to now present the evidence it had every opportu-
nity to present before the judge. See Bristol Manor Health Care Center,
295 NLRB 1106 (1989), enfd. 915 F.2d 1561 (3d Cir. 1990); Bannon
Mills, Inc., 146 NLRB 611, 633–634 (1964). Accordingly, we deny the
Respondent’s motion to reopen the record to take the Respondent’s
evidence and grant the General Counsel’s motion to strike the evidence
submitted with the Respondent’s brief in support of exceptions.
1 As discussed below, Respondent and its counsel, Terry R. Boesch,
Esq., of Valparaiso, Indiana, did not appear at the hearing.
On the entire record, including my observation of the de-
meanor of the witnesses, I make the following2
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, engages in the processing of steel
at its facility in Portage, Indiana, where it annually purchases
and receives goods valued in excess of $50,000 directly from
points outside of the State of Indiana. It also annually sells and
ships goods valued in excess of $50,000 directly to points out-
side of Indiana. I find that Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act. Local 2038 of the International Longshoremen’s As-
sociation is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges and Respondent admits that on
or about September 13, 1996, Beta Steel Corporation dis-
charged Dennis Holland. The General Counsel alleges that the
discharge violated Section 8(a)(1) and (3) of the Act because it
was made in retaliation for the filing of safety complaints by
Holland in August and September 1996. He contends further
that Holland’s safety complaints were related to a collective-
bargaining agreement between Local 2038 of the International
Longshoremen’s Association and Respondent.
A. Prehearing Conference Calls
Two conference calls between counsel for Respondent, Terry
R. Boesch, counsel for the General Counsel, Walter Steele, and
myself, were conducted during the week prior to hearing. The
first occurred on Tuesday afternoon, October 21. During this
call, Boesch informed me he had just received a subpoena du-
ces tecum from the General Counsel asking for the personnel
records of all of Respondent’s employees who had been disci-
plined and discharged in the last 5 years and all the Company’s
safety records for the last 5 years. Respondent’s counsel indi-
cated he would move to revoke the subpoena as being unduly
burdensome and for seeking information not calculated to lead
to any relevant evidence.
After some discussion as to what the General Counsel was
looking for in these documents, I informed the parties that I
would not require Respondent to produce the personnel files.3
Instead, I would require Respondent to make the files available
to the General Counsel for inspection during the 4 weeks after
the hearing began and I would leave the record open so that the
General Counsel could introduce any evidence, relevant to the
issues in this case, that indicated disparate treatment of Hol-
land. As to the safety records, I indicated that I would require
Respondent to produce only those records for the period Sep-
tember 1, 1995, through September 30, 1996.
During this conversation, Boesch informed opposing counsel
and myself that he had sought injunctive relief in the United
2 The General Counsel waived its opportunity to file a brief.
3 In retrospect a more appropriate request would have been for the
personnel files and any other documents relating to employees who
performed work, engaged in any volunteer activities or received any
payments from other sources, while claiming they were incapable of
performing all or any part of their employment duties at Respondent’s
facility.
326 NLRB No. 126
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1268
States District Court in Hammond, Indiana, seeking to stay the
hearing. Boesch alleged that he was promised the names of the
General Counsel’s witnesses and their statements in advance of
hearing by Board Agent Andrew Stites. He alleged further that
he would not have made Respondent’s management personnel
available to the Board investigator but for this promise.
I told Boesch that I had no authority to order the General
Counsel to provide him such information in advance of trial. I
cited the Board’s longstanding practices against discovery and
pretrial disclosure, and its regulations, particularly, Section
102.118. Further, I told him that if Stites made such represen-
tations he had no authority to do so. I also suggested that if
such promises were made, no attorney could reasonably rely on
them given the Board’s regulations and longstanding practices.
I informed the parties that the hearing would begin at 1 p.m.
central standard time of Monday, October 27. Boesch ended the
conversation by giving myself and opposing counsel directions
to the Porter County Administration Center, where the hearing
was scheduled.
On the afternoon of Friday, October 24, Boesch initiated an-
other conference call. He informed counsel for the General
Counsel and myself that the district court was denying his
motion for an injunction. We revisited his allegations regard-
ing the promises made by Stites and I informed the parties that
I would not grant a petition to revoke the General Counsel’s
subpoenas as modified in our prior conversation. Boesch then
informed me he intended to produce neither the documents nor
the management witnesses who had been subpoenaed. I in-
formed the parties that, at trial, I might refuse to allow Respon-
dent to present such witnesses in its case pursuant to the
Board’s decision in Bannon Mills, 146 NLRB 611, 614 fn.
633–634 (1964).
Further, I told Boesch that I did not see how he would be
prejudiced by the alleged failure of the General Counsel to live
up to the alleged promises. I observed that he would learn the
identity of the Board’s witnesses at the hearing and would ob-
tain their statements after each had testified.4 I said that if there
was some reason why Respondent could not adequately address
the testimony of the General Counsel’s witnesses during the
week of October 27, I would leave the record open and recon-
vene the hearing to provide Beta Steel an opportunity to do so.
Moreover, I observed that Beta had not sacrificed much in talk-
ing to the Board agent during the investigatory stage of the
proceeding. I noted that it was my understanding that the
Board may elect not to file a complaint after being apprised of
an employer’s evidence negating an unfair labor practice. Fur-
ther, if an employer refuses to co-operate in the investigation,
the Board may gain access to management personnel and the
employer’s records by subpoenaing them at hearing.
B. The Hearing
Respondent did not file a motion requesting a continuance of
the scheduled hearing date. On October 27, 1997, I arrived at
the hearing site at 1 p.m. Seeing nobody at the table for Re-
spondent, I asked if Boesch was present. A lady walked up to
me and, without introducing herself or providing any explana-
tion, handed me an affidavit prepared by Boesch (ALJ Exh. 1).
The affidavit suggested that neither Boesch nor his client in-
tended to appear at the hearing. The affidavit asserted that Beta

4 The General Counsel’s attorney informed Boesch that four of his
witnesses were the management officials he had subpoenaed.
Steel was being denied its due process rights by the General
Counsel’s refusal to honor Stites’ “promises.”
Neither Boesch nor his client appeared at the hearing or oth-
erwise attempted to get in contact with myself, the Division of
Judges or the General Counsel. I asked the General Counsel to
call Boesch’s office. He reported to me that he did so but got
no answer. At this point I instructed the General Counsel to
present his evidence in support of the complaint. The Board
has previously found this to be an appropriate method of pro-
ceeding when a party, with adequate notice of a hearing, fails to
appear, Bristol Manor Health Care Center, 295 NLRB 1106
(1989).
C. The Substance of the Case
Dennis Holland worked for Beta Steel Corporation from
February 1993 until September 10, 1996. He is a member of
Local 2038 of the International Longshoremen’s Association.
All but his first 6 months with Respondent were spent in the
shipping department. At times, he worked in a scalehouse,
which was located 75–100 feet from the mill. Holland rotated
between a variety of tasks. Two days a week he attended the
scales, 1 day a week he worked as “checker” verifying the ac-
curacy on certain shipping department data. The other 2 days a
week he drove a forklift, loading steel coils onto trucks.5
In late 1995 or early 1996, Donald Loomis became manager
of the shipping department. The volume of traffic handled by
the department increased markedly. Beta Steel began using
larger “shuttle” trucks to transport the steel coils produced at
the mill to the nearby Port of Indiana.
When using these larger trucks, Beta management discontin-
ued the practice of securing the coils to the truck with a steel
chain. Holland complained to Carl Maul, the plant manager,
Lee Spitka, a supervisor, and Jim Hunt, Beta’s safety manager,
that not using the chains was dangerous. He told them an unse-
cured coil could go through the scalehouse walls.
Holland and two other employees, Mark Devyack and Nick
Million filed a union grievance over the practice in about Feb-
ruary 1996. Beta then began to use one chain per coil on each
truck. Two weeks after the filing of the grievance, Devyack
and Million were discharged for reasons unexplained in this
record. Afterwards, Respondent discontinued the practice of
chaining down the coils. Both employees filed grievances over
their discharge. Devyack prevailed in an arbitration but did not
return to work at Beta Steel. Million also found employment
elsewhere.
In March 1996, an explosion at Respondent’s mill killed
three employees and injured nine others. Holland was in the
scalehouse when the explosion occurred but had been at the
mill only a few minutes earlier. He knew two of the dead
workers well and talked to one, Kevin Myers, just 10 minutes
before the explosion.
After the explosion Respondent offered counseling to those
employees who desired it and kept on its payroll a number of
employees who were not ready to return to work for physical
and/or emotional reasons. Holland was one of about 40 em-
ployees (out of approximately 120) who did not return to work
immediately. Several weeks after the explosion he began at-
tending counseling session with Jeffrey Robinson, a licensed
social worker, who had been retained by Respondent. Holland
5 The coils were 48 inches wide and apparently varied in length.
They weigh between 32,000 and 36,000 pounds.
BETA STEEL CORP. 1269
met with Robinson weekly until he returned to work and bi-
weekly until he was fired.
At the beginning of his counseling, Holland told Robinson
that he was continuing to serve as a volunteer fireman in his
hometown of Lake Station, Indiana. Holland had been a volun-
teer fireman since 1984. At work, prior to the explosion, Hol-
land regularly wore T-shirts and caps that indicated that he was
a volunteer fireman. The vehicle he drove to work was
equipped with emergency lights and had license plates indicat-
ing his membership in the volunteer fire department. In 1996,
he was the department’s safety officer. In this capacity, he
drove a fire truck or ambulance. At an accident or fire, Holland
assured that all the firemen wore proper safety equipment. He
received $9.50 per call and a clothing and gasoline allowance
of between $150–$200 (either annually or biannually).6
Robinson encouraged Holland to continue performing his
duties as a volunteer fireman. He told him it would be helpful
in coping with the emotional trauma from the explosion. Hol-
land returned to work on May 20, 1996. However, he declined
to drive a forklift and, at Respondent’s request, obtained a phy-
sician’s note restricting him from doing so.
Holland discussed driving the forklift with Jeffrey Robinson.
He told Robinson he was uncomfortable driving forklifts at the
speeds required by his job. In early August 1996, Holland
asked Respondent to allow him to resume driving forklifts. He
was required to obtain a doctor’s release and commenced using
forklifts about August 12 or 13.
In late July or early August, Holland became chairman of a
“area safety committee” for the shipping and banding depart-
ments. This committee was established by the Union and man-
agement. Its membership included Supervisor Lee Spitka,
Safety Director Jim Hunt, and several bargaining unit mem-
bers.7 Shortly thereafter, at a meeting with Respondent’s safety
director, James Hunt, Holland complained about the steel coils
not being chained to the trucks. Supervisor Lee Spitka said
employees at the loading dock would not chain the coils down
and gave Holland a letter from Shipping Department Manager
Don Loomis stating that this was not required so long as the
coils were adequately blocked with 4 by 4 pieces of wood
(dunnage).
On August 27, Holland was summoned to the office of Beta
Steel vice president, “Toli” Fliakos. Fliakos informed Holland
that he had learned that Holland had been answering calls as a
fireman while he was off of work from Beta and while on re-
stricted duty. Fliakos said he considered this an abuse of the
program set up to accommodate employees after the explosion.
Holland responded that he had made no attempt to hide the fact
that he was still working as a volunteer fireman and nobody
from Beta had asked him about it. Fliakos told Holland that he
would not be disciplined but that the Company was unhappy
with his conduct.8

6 The number of calls to which Holland responded varied, but ap-
pears to be approximately two per week.
7 Several area safety committees were apparently established a few
months after the March 1996 explosion. They are referred to in the
collective-bargaining agreement that became effective on January 1,
1997 (G.C. Exh. 12, pp. 29–30).
8 In April or May 1996 the Union sent its members a letter stating
that employees, who were working elsewhere while being paid by Beta
Steel during their recuperation, were violating the Union’s agreement
with the Company. This letter was sent after Fliakos raised his concern
about this issue with the Union.
On September 10, one of Holland’s coworkers, Mike Tsam-
pis, asked him for a safety and health suggestion form. After
Holland provided the form, Tsampis filled it out. His primary
suggestion was that shuttle trucks have one chain securing each
steel coil before exiting the mill (G.C. Exh. 8). Holland also
signed the form and took it to Supervisor Lee Spitka.
Holland was called to Fliakos’ office, 1 hour later, where he
was informed that he was being suspended, subject to dis-
charge, for answering fire department calls while he was off of
work. Holland told Fliakos that his activity with the fire de-
partment was not gainful employment.
On September 13, Holland and union officials met with
management in a second step grievance proceeding. Holland
presented management with a letter from Jeffrey Robinson
confirming that he encouraged Holland to continue his work
with the fire department and opining that it helped him prepare
for his return to work (G.C. Exh. 10). Holland also reiterated
the minimal compensation he received from the fire depart-
ment.
Fliakos also expressed his anger at Jeffrey Robinson, who at-
tended this meeting. Robinson had told Fliakos in a telephone
conversation after Holland’s discharge that he did not consider
Holland’s work with the fire department to be inconsistent with
his inability to perform his job at the scene of the March explo-
sion or his hesitancy to drive a forklift at the same site. Fliakos
yelled at Robinson expressing his disagreement with that opin-
ion and telling Robinson he should have talked to Fliakos be-
fore writing any letter on Holland’s behalf.
After the step-2 grievance, Beta confirmed its decision to
terminate Holland. The Union informed him that it did not
have the resources to pursue his case to arbitration. On January
14, 1997, Holland filed an unfair labor practice charge with the
NLRB.
Analysis
In order to prove that an employer violated Section 8(a)(1)
and (3) in terminating an employee, the General Counsel must
show that union activity has been a substantial factor in the
employer’s decision. Then the burden of persuasion shifts to
the employer to prove its affirmative defense that it would have
taken the same action even if the employee had not engaged in
Union or other protected activity. Wright Line, 251 NLRB 1083
(1980), enf. 662 F.2d 899 (1st Cir. 1981).
To establish discriminatory motivation the General Counsel
generally must show union or other protected activity, em-
ployer knowledge of that activity, animus or hostility towards
that activity and a causally related adverse personnel action.
Inferences of knowledge,9 animus,10 and discriminatory moti-
vation11 may be drawn from circumstantial evidence rather than
from direct evidence.
In the instant case, Dennis Holland engaged in union activity
in attempting to enforce the safety and health provisions of the
collective-bargaining agreement with regard to chaining down
the coils. Respondent was aware of this activity. I infer ani-
mus and retaliatory motive from the fact that Beta knew of
Holland’s activities with the fire department 2 weeks before his
discharge but did not act upon that knowledge until the day it
was presented with a safety complaint from Holland and a fel-
9 Flowers Baking Co., 240 NLRB 870, 871 (1979).
10 Washington Nursing Home, 321 NLRB 366, 375 (1996).
11 W. F. Bolin Co. v. NLRB, 70 F. 3d 863 (6th Cir. 1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1270
low employee. The timing of Holland’s discharge, immedi-
ately after his protected activity, strongly suggests discrimina-
tion.
The critical factor in this matter is whether I believe Hol-
land’s testimony that Vice President Fliakos discussed his work
as a volunteer fireman with him on August 27 and told him that
he would not be disciplined for it. Obviously one important
factor in determining the credibility of this testimony is the fact
that it is uncontroverted. However, I have also taken into con-
sideration the fact that Holland eschewed the temptation to
embellish his testimony regarding the events of September 10.
Particularly, in the absence of any management witnesses, Hol-
land could have fabricated testimony regarding their reaction to
his protected activities. The fact that he did not do so leads me
to credit his testimony about his August 27 conversation with
Fliakos.
Moreover, Holland’s account of this conversation is not im-
plausible in light of several factors regarding his open activities
as a volunteer fireman. First of all, his service on the fire de-
partment commenced years before the March explosion. The
fact that Holland was a volunteer fireman was obvious to his
supervisors and coworkers from the clothing he wore and the
lights and license on his vehicle. When he returned to work
after the explosion, I infer that his vehicle was in the same con-
dition as before the explosion. Further, any inquiry on the part
of Respondent would have disclosed that Holland was, as be-
fore the explosion, being compensated minimally for his ser-
vices. Thus, his situation was very different than that of an
employee who was recuperating while on Respondent’s payroll
and at the same time engaged in full-time or substantially gain-
ful part-time employment elsewhere.
My decision to credit Holland’s testimony regarding the Au-
gust 27 conversation with Fliakos leads me to infer that his
protected activity of September 10 caused Fliakos to reconsider
his decision not to discipline Holland for his activities with the
fire department. Thus, I conclude that Holland would not have
been discharged or disciplined but for his protected activities.
CONCLUSIONS OF LAW
By discharging Dennis Holland on September 13, 1996, Re-
spondent has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (3) and Sec-
tion 2(6) and (7) of the Act.
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.
The Respondent having discriminatorily discharged Dennis
Holland, it must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a quar-
terly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12

12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
ORDER
The Respondent, Beta Steel Corporation, Portage, Indiana,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting Local 2038 of the International Long-
shoremen’s Association, or any other union.
(b) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Dennis
Holland full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Dennis Holland whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge and notify
Dennis Holland in writing that this has been done and that the
discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cility in Portage, Indiana, copies of the attached notice marked
“Appendix.”13 Copies of the notice, on forms provided by the
Regional Director for Region 25, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily 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
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since September 10, 1996.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

adopted by the Board and all objections to them shall be deemed
waived for all purposes.
13 If this Order is enforced by a Judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
BETA STEEL CORP. 1271
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 violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT discharge or otherwise discriminate against any
of you for supporting Local 2038 of the International Long-
shoreman’s Association, or any other union.
WE WILL NOT in any like or related manner interfere with, re-
strain, 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,
offer Dennis Holland full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Dennis Holland whole for any loss of earn-
ings and other benefits resulting from his discharge, 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 unlawful discharge
of Dennis Holland, and WE WILL, within 3 days thereafter, no-
tify Dennis Holland in writing that this has been done and that
the discharge will not be used against him in any way.

BETA STEEL CORPORATION