Jay Metals

National Labor Relations Board - Board Decisions

Aug 10, 1992

308 N.L.R.B. 167 (N.L.R.B. 1992)

167
308 NLRB No. 40
JAY METALS
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s estabished policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings. We also find no merit in
the Respondent’s allegations of bias and prejudice on the part of the
judge. Thus, we perceive no evidence that the judge prejudged the
case, made prejudical rulings, or demonstrated a bias against the Re-
spondent in his analysis or discussion of the evidence. Similarly,
there is no basis for finding that bias and prejudice exist merely be-
cause the judge resolved important factual conflicts in favor of the
General Counsel’s witnesses. NLRB v. Pittsburgh Steamship Co.,
337 U.S. 656, 659 (1949).
2 Accordingly, we find it unnecessary to pass on the judge’s find-
ing that McCoy was also terminated for filing an OSHA complaint
as this finding would be cumulative and would not materially affect
the remedy. We agree with the judge that the Respondent’s state-
ments that McCoy was a ‘‘wise guy’’ and a ‘‘nuisance’’ referred to
his union and OSHA activities and hence were unlawful.
3 We note additionally that the Respondent admitted that during an
earlier organizing campaign, in January 1989, it made successful ef-
forts to determine the probable union sentiments of most of its em-
ployees.
4 For the reasons stated by the judge, we find that these statements
were unlawful.
5 For the reasons stated by the judge, we agree that the Respond-
ent’s earlier prohibition against solicitation or distribution of lit-
erature violated Sec. 8(a)(1) of the Act. We also note that the judge
included in his decision the text of a separate rule adopted by the
Respondent, which prohibits off-duty employees from entering or re-
maining on its premises. The General Counsel has not alleged that
this rule is unlawful, and it therefore is not before us.
Jay Metals, Inc. and Larry McCoy. Case 8–CA–
22399
August 10, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On November 25, 1991, Administrative Law Judge
Karl H. Buschmann issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief. The
Respondent also filed a brief in response to the Gen-
eral Counsel’s answering brief.
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified, and to adopt the recommended
Order as modified.
1. The Respondent has excepted, inter alia, to the
judge’s finding that it unlawfully discharged, or laid
off and unlawfully refused to recall, employee Larry
McCoy because of his protected concerted activities.
We find no merit to these exceptions. Contrary to the
assertion of the Respondent, there is ample evidence
that it was aware of McCoy’s activities on behalf of
the United Steelworkers of America at the time it de-
cided to terminate his employment.2 Thus, the judge
credited testimony that 8 days before the layoff Plant
Manager Cunningham sarcastically asked McCoy if he
was trying to organize ‘‘a union, huh, huh?’’ and also
credited testimony by the Respondent’s former head of
maintenance, Alan Flanders, that McCoy was per-
ceived by the Respondent to be a union supporter at
the time it decided not to recall him. Although not
mentioned by the judge, Flanders also testified that
McCoy’s union activity was a factor in the Respond-
ent’s decision. We also note that the individual who
the Respondent contends effectively recommended that
McCoy not be recalled, Foreman Los, admitted that he
was aware of McCoy’s union activities at a time prior
to the decision not to recall him.3
We also agree with the judge that the General Coun-
sel has established union animus, based, inter alia, on
the Respondent’s many coercive statements found by
the judge to violate Section 8(a)(1).4 We note addition-
ally Flanders’ testimony that McCoy’s union activity
was a factor in the decision not to recall him, and the
Respondent’s adoption of an unlawful no-solici-
tation/no-distribution rule in August 1989, shortly after
McCoy began passing around Steelworkers organizing
literature, as discussed below. In finding union animus,
however, we do not rely on the provision in the Re-
spondent’s handbook stating the Respondent’s opposi-
tion to unions or on Cunningham’s statement that the
Respondent’s owners were against the Union and that
it was his job to fight for what they wanted.
Accordingly, and for the reasons stated by the judge,
we find that the General Counsel has established a
prima facie case that McCoy’s termination was unlaw-
ful, and that the Respondent has failed to rebut that
showing.
2. The judge also found, inter alia, that the Respond-
ent’s July 1990 no-solicitation/no-distribution rule was
unlawful. We disagree.5 The rule provided that ‘‘solici-
tation and/or distribution of literature on company
premises during working time without permission from
Management’’ is prohibited. In Our Way, Inc., 268
NLRB 394 (1983), the Board held that a rule against
solicitation or distribution of literature during ‘‘work-
ing time’’ is presumptively lawful, and will not be
condemned as ambiguous merely because the term
‘‘working time’’ is not expressly defined for employ-
ees. See also Chugach Alaska Fisheries, 295 NLRB 44
(1989). Thus, the Board recognized in Our Way that
no-solicitation/no-distribution rules ‘‘using ‘working
time’ are presumptively valid because that term con-
notes periods when employees are performing actual
168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 In this regard, we note that the Fair Labor Standards Act requires
employers to count breaks of less than 20 minutes duration as hours
worked for minimum wage and overtime purposes, and that employ-
ees are generally paid for this time. See 29 C.F.R. § 785.18. The
Board nevertheless presumes that employees understand that such
breaks are not encompassed by the term ‘‘work time.’’ See, e.g.,
Our Way, above. On the facts of this case, we see no reason why
a similar presumption should not apply in the case of a paid
lunchbreak.
1 Respondent’s second motion to adduce additional evidence filed
by letter of August 13, 1991 is denied for the reasons stated in the
General Counsel’s memorandum in opposition filed August 22,
1991. The filing of a new charge involving a different employer is
not relevant to this case.
job duties, periods which do not include employees’
own time such as lunch and break periods.’’ Id. at 395.
The judge here found that, despite the rule’s pre-
sumptive validity under Our Way, because employees
take short breaks as the work schedule permits and are
paid for their lunch and breaktime they would not
know whether the rule applied to solicitation and lit-
erature distribution during those periods. The judge’s
conclusion that the rule was unlawful also appears to
have been influenced by his inference that some em-
ployees might never be able to engage in solicitation
or distribution activities during the workday if employ-
ees were not given simultaneous breaks under the Re-
spondent’s schedule. To the extent, however, that the
Respondent releases employees from their duties for
lunch or other breaks, it would be inconsistent with
Our Way to infer that the Respondent’s no-
solicitation/no-distribution rule would apply to such
periods—or that employees might reasonably think that
it did—merely because employees are paid for such
periods or because the breaks are informally scheduled
and may not overlap with the breaks of other employ-
ees.6 Accordingly, we find that the General Counsel
has failed to rebut the presumptive validity of the Re-
spondent’s July 1990 rule.
ORDER
The National Labor Relations Board orders that the
Respondent, Jay Metals, Inc., Lorain, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Delete paragraph 2(a) of the Order and reletter
the subsequent paragraphs.
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 or-
dered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate
against our employees because of their union activities
or other protected concerted activities.
WE WILL NOT coercively state to our employees that
they were laid off and would not be recalled because
of their union support or other protected concerted ac-
tivities.
WE WILL NOT publish or maintain an unlawfully re-
strictive or ambiguous no-solicitation or no-distribution
policy for our employees.
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 offer Larry McCoy full and immediate re-
instatement to his former job, or, if that job no longer
exists, to a substantially equivalent position without
prejudice to his seniority and other rights and privi-
leges, and WE WILL make him whole for any loss of
earnings he may have suffered by reason of the dis-
crimination practiced against him with interest and no-
tify him that we have removed from our files any ref-
erence to his discharge and that the discharge will not
be used against him in any way.
JAY METALS, INC.
Patricia E. Snyder, Esq., for the General Counsel.
Gerald Skoch, and Allan Churchmack, Esqs., of Lakewood,
Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMAN, Administrative Law Judge. This
case was tried on December 12, 1990, in Cleveland, Ohio.
The charge in Case 8–CA–22399 was filed by Larry McCoy1
on January 26, 1990. The charge was amended on June 29,
1990. Based on the amended charge, a complaint issued on
July 26, 1990, alleging that the Respondent, Jay Metals Inc.,
violated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act (the Act) by threatening an employee with dis-
charge, stating that a layoff was union related, interrogating
an employee about union activities, maintaining an unlawful
no-solicitation rule and by terminating employee McCoy be-
cause of his union activities. The Respondent filed an an-
swer, dated August 16, 1990, admitting certain jurisdictional
allegations in the complaint and denying that it committed
any unfair labor practices.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Jay Metals, Inc., is an Ohio corporation
with an office and place of business located in Lorain, Ohio,
169JAY METALS
2 Albert Stanley, a former employee of the Respondent, testified
about a conversation with Cummingham. By letter dated February
18, 1991, Respondent’s counsel forwarded a motion to adduce addi-
tional evidence, to wit evidence of two prior convictions of Albert
Stanley, the witness. The General Counsel opposed the motion by
a the filing of an opposition, dated February 26, 1991. Pursuant to
Rule 609 of the Federal Rules of Evidence, I grant the Respondent’s
motion in part by admitting evidence of a conviction for ‘‘petty
theft’’ in 1989. The Respondent’s motion is denied insofar as it
seeks to adduce evidence of a prior conviction dating back more
than 10 years. In view of the new evidence and Cunningham’s un-
equivocal denial that he had the alleged conversation with Stanley,
I do not credit Stanley’s testimony in this regard.
where it is engaged in aluminum processing. With sales in
excess of $50,000 directly to points outside of the State of
Ohio, the Company is admittedly engaged in commerce and
therefore an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act (Tr. 4–5).
The Union, United Steelworkers of America, AFL–CIO, is
a labor organization within the meaning of Section 2(5) of
the Act.
II. FACTS
The Respondent employs up to 14 employees in a variety
of jobs ranging from furnace operators to maintenance help-
ers (Tr. 50, 150; G.C. Exhs. 3, 5). The Company’s president
is Dean Warner and the plant manager is Kevin Cunningham
(Tr. 18, 196). In January 1989, Local Lodge 1802 of the Ma-
chinists Union made an unsuccessful attempt to organize the
employees (Tr. 42; G.C. Exh. 5). One of the employees,
Larry McCoy, who had supported that union drive contacted
the Steelworkers Union in July 1989 in order to organize the
employees at ‘‘Jay Metals because of the safety hazards and
other reasons.’’ (Tr. 105–06.) In October, he obtained union
literature from the Steelworkers and showed it to at least
seven of his coworkers (Tr. 106–111). He explained his con-
tact with the Steelworkers as follows (Tr. 112):
Yes, I called Mr. Grayhouse back, and I told him that
I’m sure that there would be more votes for yes than
there would be for no. And I would like to get the
cards, and he says that we’d have to wait until late No-
vember or early December before we could pass out the
cards. But he would send me the literature on the union
and what they do, you know, what they could do for
you and what they can’t do for you. He would send me
the literature through the mail.
And when I received it, I gave it to Jimmy Swartz,
and he gave it back to me. I talked to other employees
at Jay Metals about unionizing, and they said ‘‘. . . just
get the cards.’’
McCoy also informed management of his intentions to file
a complaint to OSHA about the Company’s safety conditions
(Tr. 117). As a result of McCoy’s complaint with OSHA,
two inspectors visited the plant on October 20, 1989. They
ordered a cleanup of the factory within 30 days or risk a fine
(Tr. 119). During that time,2 Plant Manager Cunningham ap-
proached McCoy inquiring whether he was ‘‘a wise guy by
calling OSHA.’’ When McCoy pretended not to know what
Cunningham referred to, Cunningham said, ‘‘You ain’t trying
to organize a union, huh, huh?’’(Tr. 118.) Several days after
the OSHA inspection, rumors spread about a layoff cir-
culated in the plant as a result of a defective fan connected
to the furnace. On October 28, Cunningham told McCoy not
to come in on the following Monday and said that he was
laid off, because ‘‘That’s what you get for being a wise
guy.’’ (Tr. 121.) Two other employees with less seniority
then McCoy were also laid off, but two employees with less
seniority continued to work (Tr. 122). The two employees
with less seniority were ultimately recalled, but McCoy was
never recalled. According to McCoy’s testimony, President
Dean Warner informed McCoy in the late November, that he
would not be recalled (Tr. 124). And Cunningham thereafter
confirmed that McCoy would not be recalled, because he
‘‘was a nuisance’’ (Tr. 125). In October 1990 while McCoy
was still on layoff, the Respondent hired a new employee,
Jerry Martin.
In July 1990, to its employees the Respondent distributed
to its employees a revised set of Plant Rules which in Rule
numbered 15 containing the following prohibition (Jt. Exh.
2, Tr. 75):
Solicitation and/or distribution of literature on Company
premises during working time without permission from
Management.
This prohibition replaced a no-solicitation and no-distribu-
tion rule which had been in force from August 1989 until
July 1990. That rule also numbered 15, prohibited the fol-
lowing (Jt. Exh. 1):
Solicitation and/or distribution of literature on Company
premises without permission from management.
The employees’ handbook contained a separate proviso
dealing with that subject but somewhat inconsistent with
Rule 15, as follows (Jt. Exh. 1, p. 6):
Our employees are encouraged to take an active part
in civic affairs and worthy charitable activities. How-
ever, in order to avoid interference with work and to
protect you from unnecessary annoyance, soliciting of
any kind, or distribution of literature on the premises
during an employees’ working time, is not permitted.
Distribution of literature in working areas is not per-
mitted.
Due to the safety requirements of our business, em-
ployees should not remain or enter upon Company
premises unless the employee is on duty or scheduled
for work.
Analysis
The General Counsel’s argument that the Respondent
clearly violated Section 8(a)(3) and (1) of the Act is coun-
tered by the Respondent who submits that the record does
not support a finding of the employee’s protected activity or
the Company’s knowledge of such conduct or the Company’s
union animus. In any case, according to the Respondent, it
had a legitimate business reason for the layoff and the failure
to recall McCoy, and it did not threaten any employees.
The record, notably the Employee Handbook distributed to
all employees, reveals Respondent’s union animus as follows
(Jt. Exh. l, p. 3):
170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We are opposed to a union coming into the Com-
pany because we sincerely believe it would not be in
your best interest on in the best interest of our cus-
tomers in the community we serve.
. . . .
Considering these factors we know you will agree
that a union is unnecessary at Jay Metals, Inc.
The Respondent’s plant manager, Cunningham, confirmed
Respondent’s union animus by testifying about the Union as
follows (Tr. 85):
I guess—I knew that they were very much against it,
Mr. Warner, the owners of the company, were very
much against it, and it was my job to, you know, fight
for what they wanted.
. . . .
And so I did.
The record is also clear that following the defeat of the
campaign by the Machinists union, McCoy assumed the lead-
ing role in campaigning among the employees for the Steel-
workers. He made the initial contact with the Union and ob-
tained union literature. He shared the union material with the
other employees, talked to them in support of the Union, and
ultimately requested the Union to furnish him with union au-
thorization cards. He also engaged in protected, concerted ac-
tivity by contacting OSHA and prompting inspectors to in-
vestigate the safety conditions of the plant.
Management was aware of McCoy’s safety complaints as
well as his union activity. Cunningham accused him of being
a ‘‘wise guy’’ for calling OSHA and when McCoy pretended
ignorance, Cunningham sarcastically referred to his union ac-
tivity (Tr. 118). Another former employee, Alan Flanders,
unequivocally testified that management was informed as to
which individual employee supported the Union and that
manageent kept a complete list of the employees who fa-
vored the Union. Flanders who attended management meet-
ings during his employ with the Company, stated that
McCoy was clearly perceived as a union supporter and an
employee who frequently complained about defective and
unsafe equipment. Flanders further stated that the Company
was unequivocally opposed to the Union (Tr. 159-60).
Rumors spread in October that layoffs were imminent due
to the breakdown of the furnaces, but McCoy felt reassured
when Cunningham stated that layoffs would proceed accord-
ing to the seniority of the work force (Tr. 120). McCoy testi-
fied that he had seniority over four other employees.
Nevertheless, McCoy was one of four selected for layoffs
while two employees with less seniority, (Frank Branner and
Craig Ehrhardt) remained employed (Tr. 122). One of the
four employees, Greg Lovett, was recalled on December 11,
1989. In April 1990, the Company recalled Frank Tyes. The
two recalled employees had less seniority than McCoy, and
in late 1990, the Company hired an inexperienced laborer.
Yet McCoy was never recalled. When confronted by McCoy,
Cunningham advised McCoy ‘‘to go and find a job’’ because
he was a nuisance and would never be recalled (Tr. 125).
This factual scenario clearly shows that the Respondent se-
lected McCoy for layoff and refused to recall him, because
of his union activities. Considering Respondent’s obvious
awareness of the employees’ union activities and McCoy’s
leading role in it, as well as the Company’s union animus,
the Company resorted to the layoff procedure to rid itself of
McCoy who was perceived as a nuisance. In doing so, the
Respondent ignored its policy expressed in its Employee
Handbook under ‘‘Work Force Reduction’’ (G.C. Exh. 1, p.
7):
If it is necessary for economic or business reasons to
reduce employment, each position will be carefully ana-
lyzed along with the record of the individual involved.
Because the qualifications, past performance, and length
of service of each individual will be the controlling fac-
tors, experienced personnel will have the best chance of
avoiding displacement. In case of layoff, the Company
gives as much advance notice as possible.
The Respondent failed to conduct a careful analysis, it ig-
nored seniority in laying off and recalling the employees.
Significantly, when it hired Jerry Martin in October 1990, an
inexperienced worker instead of recalling McCoy, the Re-
spondent failed to heed its stated policy that ‘‘experienced
personnel will have the best chance of avoiding displace-
ment.’’ Considering Respondent’s disparate treatment of
McCoy, I have no difficulty in concluding that the Respond-
ent violated Section 8(a)(3) and (1) of the Act.
Any attempt to argue that McCoy would have been dis-
charged in the absence of his union activity is not convinc-
ing. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The
Respondent argues that ‘‘McCoy was initially laid off and
later not recalled for legitimate business reason[s].’’ (R. Br.
12.) The layoff, according to the Respondent, was neces-
sitated by the mechanical breakdown of a furnace and it was
determined that it was not economical to retain the existing
work force. The General Counsel does not take issue with
the economic justification for a layoff, but points to the dis-
criminatory conduct of the layoff and the discriminatory
methods of recall. Had the Respondent laid off four employ-
ees in accordance with plant seniority, McCoy’s job would
have been saved. Furthermore, once the layoff was effec-
tuated, McCoy as the most senior should have been the first
to be recalled. Yet the Respondent recalled two other em-
ployees with less seniority. Finally, the Respondent could
have recalled McCoy in lieu of hiring a totally inexperienced
employee. The Respondent also argues that McCoy was ‘‘the
least desirable of the four laid off employees’’ based upon
his past performance and qualification. Indeed, according to
the Respondent’s testimony, it was President Warner who se-
lected the four employees for layoff with the view towards
keeping the best workers and it was employee Phil Los who
made the decision to recall Greg Lovett rather than McCoy
(Tr. 91, 200, 232). Yet the record shows that McCoy was not
an inferior worker. According to Cunningham, McCoy had
an ‘‘excellent attendance’’ record who ‘‘did his job and that
was it’’ (Tr. 54). Stanley testified that McCoy ‘‘was a good
worker . . . [who] was there every day’’ (Tr. 149). Flanders
described McCoy as ‘‘your average worker’’ (Tr. 160). And
McCoy testified that Cunningham had praised his work on
several occasions (Tr. 252). And even if it were accepted that
employee effectively recomended the preferential recall of
Lovett, the Respondent is unable to explain the epmloyment
of Tyes, an inexperienced worker, in lieu of McCoy. The Re-
spondent openly criticized McCoy as a nuisance and a com-
171JAY METALS
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 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
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.’’
plainer. This criticism is in accord with his reputation as a
union organizer and an employee who had filed safety com-
plaints with OSHA. In short the record does not show that
the Respondent would have laid off McCoy or refused to re-
call him in the absence of his union activity or his safety
complaints.
I further find that Cunningham’s various statements, de-
scribing McCoy on one occasion as a nuisance and on an-
other as a ‘‘wise guy’’ for complaining to OSHA and the ac-
cusation that he was trying to organize a union, as well as
his justification for the layoff, ‘‘that’s what you get for being
a wise guy,’’ as clearly coercive statements in violation of
Section 8(a)(1) of the Act.
With respect to the Respondent’s policy in force from Au-
gust 1989 to 1990 dealing with solicitation or distribution of
union material, it is significant that the prohibition includes
an employee’s own time or nonworking time. Such a prohi-
bition is presumptively unlawful. Our Way Inc., 268 NLRB
394, 395 (1983). The revision circulated to the employees in
July 1990 prohibits such activity, ‘‘during working time
without permission from Management’’ and is presumptively
valid. However the Respondent does not recognize regular
lunch periods or breaktime. According to Plant Manager
Cunningham lunch and break periods are paid time whereby
‘‘employees are allowed to take a lunch whenever they can
find time . . . a lot of times the lunch break will be 10 min-
utes here, 10 minutes there or 25 minutes . . . to keep the
furnace running . . . so we pay them for it’’ (Tr. 66). Under
these circumstances the rule is indefinite and ambiguous. An
employee’s nonworking time may not be his own time and
may, in any case, include the working time of another em-
ployee who is being solicited. The new policy unlawfully re-
stricts the employees in the exercise of their Section 7 rights
and therefore violates Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Jay Metals Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The United Steelworkers of America, AFL–CIO is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By coercively stating that an employee was laid off and
would not be recalled because of the employee’s union sup-
port or other protected concerted activities, the Respondent
violated Section 8(a)(1) of the Act.
4. By discharging or by laying off and failing to recall
Larry McCoy because of his union support or other protected
concerted activities, the Respondent violated Section 8(a)(3)
and (1) of the Act.
5. By publishing and maintaining an unlawfully restrictive
and ambiguous no-solicitation and no-distribution rule, the
Respondent violated Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having unlawfully discharged Larry McCoy, the Respond-
ent shall offer him reinstatement and make him whole for
lost earnings and other benefits computed on a quarterly
basis for the date of discharge to the date of a proper offer
of reinstatement, less net interim earnings in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed 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 recommended3
ORDER
The Respondent, Jay Metals Inc., Lorain, Ohio, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively stating that an employee was laid off and
would not be recalled because of his union support or other
protected concerted activities.
(b) Publishing and maintaining an overly restrictive and
ambiguous no-solicitation and no-distribution policy.
(c) Discharging or otherwise discriminating against em-
ployees because of their union support or other protected
concerted activities.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed the by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind in writing to all employees its unlawful no-so-
licitation and no-distribution policy.
(b) Offer Larry McCoy immediate and full reinstatement
to his former job or, if that job no longer exists, to a substan-
tially equivalent position without prejudice to his seniority or
any other rights or privileges previously enjoyed and make
him whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against him in the
manner set forth in the remedy section of the decision.
(c) Remove from its files any references to the unlawful
discharge of the discharged employee and notify the em-
ployee in writing that this has been done and that the dis-
charge will not be used against him in any way.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its Lorain, Ohio facility copes of the attached
notice marked ‘‘Appendix.’’4 Copies of the notice, on forms
provided by the Regional Director for Region 8, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.