Ohio Ferro-Alloys Corp.

National Labor Relations Board - Board Decisions

Mar 12, 1974

209 N.L.R.B. 577 (N.L.R.B. 1974)

OHIO FERRO-ALLOYS CORP. 577
Ohio Ferro-Alloys Corporation and Local 2626, Unit-
ed Steelworkers of America , AFL-CIO and Ronald
W. Schiesz . Cases 19-CA-5907 and 19-CA-5980
March 12, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On March 16, 1973, Administrative Law Judge
Herman Corenman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions together with a brief in support of its
exceptions to the Administrative Law Judge's Deci-
sion; General Counsel filed exceptions and a brief in
support thereof, plus a reply brief to Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
Administrative Law Judge's Decision in light of the
exceptions and briefs and has decided to affirm the
Administrative Law Judge' s rulings , findings,' and
conclusions as modified herein,2 and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent , Ohio Ferro-Alloys
Corporation, Tacoma , Washington , its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
i The 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
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
2 We agree with the Respondent's contention that two of the 8(axl)
violations found by the Administrative Law Judge involved conduct which
occurred outside the limitations period prescribed by Sec 10(b) of the Act.
Specifically, these occurrences are: (1) Plant Manager Yadeskie's statement
to employee Hicks in November 1971, wherein the former told Hicks that
"he was not going to put up with anymore of this and he would get me"
[referring to Hicks' efforts to enforce the bargaining agreement ]; and (2) at
a meeting of pickets in the plant parkmg lot during the strike in October
1971, Plant Manager Yadeskie's statement to Shop Steward 0 Crossland in
the presence of other employees "that we won't be led by a bunch of lost
sheep-we know who they are and we will definitely take care of them."
Accordingly we dismiss these allegations of the complaint.
Further, the Administrative Law Judge concluded that the Respondent
violated Sec 8(a)(1) when Supervisor Zampardo told employee Crossland to
be careful because Plant Manager Yadeskie was watching him and others.
This conversation occurred right after Yadeskie had "cussed" Crossland for
recklessly operating a forklift in the plant . Crossland's conversation with
Zampardo was initiated by the former and there is no dispute concerning
Crossland's handling of the forklift . Also, there is no specific portion of the
complaint alleging this conduct as a violation . Considering these circum-
stances, we find merit in Respondent 's exception to this finding and we
hereby overrule the Administrative Law Judge with respect to his finding.
We agree with the Administrative Law Judge that, as to the discharge of
employee Ronald D. Schiesz, this is a proper case for deferral to the
arbitrator's decision , the requirements of Spielberg Mfg. Co., 112 NLRB
1080, having been met. However, we do not adopt the Administrative Law
Judge's characterization of the award as a "compromise" award . Further,
we disavow his rationale suggesting that we would defer to such an award. It
is clear from the arbitrator 's decision that the arbitrator did consider
whether Schiesz was discharged for his union activities and that the
arbitrator found that Respondent acted improperly in discharging Schiesz.
However , the arbitrator also found that Schiesz falsified his employment
application by stating therein that he had never been arrested or served a
jail sentence when he in fact had a history of arrests and had been convicted
and sentenced to San Quentin State Penitentiary for a term of 5 years to life
Taking this factor into consideration , the arbitrator decided to order
reinstatement but not award backpay . Where an employee has obtained his
job through the use of a false statement in his application, it is not
repugnant to the purposes and policies of the Act to order less than
reinstatement with backpay. See, e.g, SouthernAirwayCompany, 124 NLRB
749; W Kelly Gregory, Inc, 207 NLRB No. 95.
DECISION
STATEMENT OF THE CASE
HERMAN CORENMAN, Administrative Law Judge: This
case was heard at Tacoma, Washington, on January 16 and
17, 1973, on a consolidated complaint issued September 8,
1972. The consolidated complaint was issued pursuant to
charges filed on June 23, 1972, by Local 2626 United Steel
Workers of America, AFL-CIO, herein called the Union,
and on August 4, 1972, by Ronald W. Schiesz, an
individual. The consolidated complaint alleges that Ohio
Ferro-Alloys Corporation, herein called the Respondent,
discriminatonly discharged Ronald W. Schiesz in violation
of Section 8(a)(1) and (3) of the Act and by its supervisors
uttered threats of reprisal against employees in violation of
Section 8(a)(1) of the Act. The Respondent's answer
admits that it discharged Ronald W. Schiesz, but denies
that it in any manner violated the Act. The Respondent
pleads that the Board should defer to the decision of the
arbitrator provided for under the terms of the collective-
bargaining agreement between the Respondent and the
Union.
All parties appeared at the hearing and were afforded
full opportunity to be heard, to present oral and written
evidence , and to examine and cross -examine witnesses.
The parties waived oral arguments , but the General
Counsel and the Respondent have submitted briefs which
have been carefully considered.
Upon the entire record,' my observation of the demean-
or of the witnesses, and the briefs submitted by the parties,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the Respondent admits, and I
find that the Respondent is an Ohio corporation having an
i The General Counsel's unopposed motion to correct transcript which is
attached to his brief is granted.
209 NLRB No. 77
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office and place of business in Tacoma, Washington, where
it is engaged in the production of alloys for the aluminum
and steel industries. During the calendar year 1971,
Respondent made purchases of supplies and materials
valued in excess of $50,000 directly from points outside the
State of Washington. Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION
The pleadings establish, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent operates three manufacturing plants in
Ohio and one at Tacoma, Washington. The United Steel
Workers of America have for many years represented the
production and maintenance employees in all of the
Respondent's plants. The alleged unfair labor practices
involved only the Tacoma plant which is represented by
Local 2626, herein called the Union.
In keeping with past practice, in the summer and fall of
1971, the Respondent and the United Steelworkers
negotiated a multiplant collective-bargaining agreement
covering all four plants and the local unions at each plant
negotiated separately on local problems peculiar to each
plant. The new agreement was made effective October 1,
1971, to October 1, 1974.
The interpretation of article 10 of the new collective-
bargaining agreement with respect to "substitute work"
became a source of bitter controversy between manage-
ment of the Tacoma plant and the Union's grievance
committee at the Tacoma plant. The union committeemen
were advising the plant employees to refuse to perform
jobs under their interpretation of article 10 of the
agreement and, instead, go home and still receive pay for
the remainder of the shift .2
B. Threats of Reprisal
Clifford A . Hicks was a member of the union grievance
committee at the Tacoma plant, from the labor and
2 Apparently , the union committeemen were relying on the following two
paragraphs of paragraph 10 of the agreement.
3 Should Management conclude to reactivate the employees
terminated job, the displaced employee can refuse all work and shall he
paid for the remainder of the shift
4 Should Management conclude to activate an employee's job which
was not available at the beginning of the shift, the displaced employees
will be required to return to his job. Should his job be terminated
during the remaining shift , he may refuse substitute work and shall be
paid for the remainder of the shift.
The management people were requesting the employees to remain at work
and perform the assigned job and to file a grievance if they protested
assignment of work
9 Yadeskie testified that he remembered this occasion and recalls telling
Hicks again as he had told him on other occasions that we did not want
anyone coercing or forcing or harassing or pressuring the people into doing
shipping department, where most of the rancor prevailed in
connection with the interpretation of article 10 of the
collective-bargaining agreement.
Hicks testified credibly that, on one occasion in
November 1971, he attended a meeting with about 30 other
people from the labor and shipping department which was
called by Plant Manager Steve Yadeskie in the plant's
lunchroom. At this meeting, Yadeskie discussed article 10
and during the course of the discussion accused Hicks of
threatening and coercing the men to comply with Hicks'
interpretation of article 10. Hicks retorted that he was
enforcing the contract, that he wasn't coercing anybody.
Yadeskie replied, according to Hicks credible testimony,
that he "was not going to put up with anymore of this and
he would get me." I find that this remark by Yadeskie to
Hicks violated Section 8(a)(1) of the Act.3
Hicks further testified credibly that on an occasion in
March 1972, when he refused substitute work in reliance
on his right under article 10 of the agreement, Supervisor
Pat Hutt told Hicks that "if he kept pushing this article 10,
that they would have to suffer the consequences and also
that they would shut the plant down. I find that this
remark by Hutt to Hicks constituted a threat of reprisal in
violation of Section 8(a)(1) of the Act .4
Otis Crossland, who was a shop steward at the time,
credibly testified that while he was on strike during
contract negotiations, and while he was on picket duty,
Plant Manager Yadeskie called a meeting of employees in
the parking lot and among other things told them "that we
will show them that we won't be led by a bunch of lost
sheep-we know who they are and we will definitely take
care of them." I find that this statement by Yadeskie
constituted a threat of reprisal against the strike leaders in
violation of Section 8(a)(1) of the Act .5
Crossland also testified credibly that Labor Supervisor
Pat Hutt told him in confidence that the Union was
pushing too hard, that we would break the company if we
kept pushing and trying to enforce our contract. I do not
find that this statement made by Hutt to Crossland
constituted a threat of reprisal but merely a prediction of
what could happen to the Respondent.
Crossland testified credibly and without contradiction
that on one occasion Steve Yadeskie "cussed" him for
recklessly operating a forklift: After this incident, Cross-
land testified he asked his foreman, Zampardo, if he was
things that were his interpretation of article 10 , that we were having enough
problems and upsetting the employees was not conducive to good relations
Yadeskie testified that the United Steelworkers staff representative,
Thomas D Hughes, was also present . Yadeskie, however, did not deny that
he told Hicks , as Hicks testified , that he "was not going to put up with
anymore of this and he would get me ." I therefore credit Hicks' testimony
concerning this incident it is also noted that as a result of Yadeskie's
remarks to Hicks on this occasion , Hicks filed a grievance
4 Hutt's recollection of this event is that he told Hicks that if they didn't
straighten out and the Union be a little more lenient that they would he
closing the plant down
5 Yadeskie remembers this occasion when he talked to some of the
employees while Crossland was picketing Yadeskie testified that when
some of the employees asked him if they were going back to work soon, he
replied , "I certainly hope so"-"I wish you would get back operating." On
the basis of all the evidence and the other evidence which shows Yadeskie's
explosive temper, I have concluded that Crossland's testimony about this
incident is the more probable.
OHIO FERRO-ALLOYS CORP.
doing a good job and Zampardo said, "Yes," and
explained to Crossland that Yadeskie was worried about
the plant shutting down, and that he couldn't say too
much, because Yadeskie was his superior. Crossland
credibly testified that Zampardo told him to be careful
because Yadeskie was watching Crossland and others at
the time. In the context of the discord that had arisen
between Yadeskie and the Union over the enforcement of
article 10 of the collective-bargaining agreement at the
time, I find that Zampardo's remark to Crossland that he
and others were being watched constituted a threat of
reprisal within the meaning of Section 8(a)(1) of the Act.
Employee Randall S. Swanson, chairman of the Union's
safety committee, credibly and without contradiction
testified that the safety committee was having difficulty
getting the Respondent to act on safety complaints, so his
committee filed a complaint with OSHA, the federal
agency which administers the Occupational Safety and
Health Act, in March 1972. Subsequent to this complaint
OSHA made an inspection of the plant. In a safety meeting
with the Respondent following the inspection, Yadeskie
was very upset and told Swanson that he had no business
"filing the complaint outside the company and we should
resolve things between us." Swanson credibly testified,
and, without contradiction, Yadeskie made a few com-
ments about his way of thinking and attitude, and told
him, "it will send me down the road."
I find that the aforesaid remark by Yadeskie to Swanson
constituted a threat of reprisal within the meaning of
Section 8(a)(1) of the Act.
Swanson testified credibly that on an occasion after
Schiesz had been fired, he was having a private discussion
with Maintenance Supervisor Mervin Farmer concerning
the collective-bargaining agreement. Farmer told Swanson,
"how bad we were hurting the company, and we'd better
straighten up"-and •'Ron Schiesz was too smart to work
here, and I sure hope you don't have that same problem." I
find that this statement by Farmer to Swanson served as a
warning to Swanson not to push for enforcement of the
contract or else suffer the same fate that befell Schiesz who
was fired in February 1972. This warning constituted a
threat of reprisal within the meaning of Section 8(a)(1) of
the Act .6
Swanson also testified credibly that sometime after
February 1972, he noticed that one of the workers had
refused to wear his safety glasses, so Swanson wrote up a
safety referral form and submitted it to the furnace
supervisor, Elmer Bruner. Swanson credibly testified that
Bruner at first refused to accept it and told Swanson, "You
are watching me and I will watch you." Swanson also
testified that Bruner told him he was going to "get" him.7 I
find that Bruner's aforesaid remarks to Swanson violated
Section 8(a)(1) of the Act.
Swanson credibly testified that on another occasion after
February 1972, he observed that Bruner, in violation of the
6 Farmer testified he did not recall having the aforesaid conversation
with Swanson. and testified further that he would not make such a remark
that, "Ron Schicsz was too smart to work here," because he, "likes to have
all the intelligent help he can get " Farmer's assigned reason for not making
the remark to Swanson is not convincing . In the context of the conversation,
it is apparent that Swanson was referring to Schiesz' union activity when he
used the expression . "too smart to work here."
579
contract, was relieving the dispatcher and thereby imper-
missibly doing bargaining unit work. Swanson thereupon
filed a grievance with Bruner asking for 4 hours pay
because he was doing bargaining unit work. When
Swanson handed Bruner the grievance, an argument
ensued as to whether or not Bruner was going to accept the
grievance. Bruner said he could not understand why
Swanson was harassing him and again told him, "If you're
watching me, I'll watch you and I'll get you."8 1 find that
this remark made by Bruner to Swanson constituted a
threat of reprisal in violation of Section 8(a)(1) of the Act.
Arthur Hahn has been chairman of the Union's
grievance committee following Ron Schiesz' discharge in
February 1972.
Hahn testified that on July 7, 1972, Maintenance
Supervisor Mervin Farmer approached him and asked him
if there was any way that Hahn could "give up" the
substitute work clause and promised to promote him to A-
Maintenance man, if he could do that. Hahn replied that
he didn't have authority to give up any portion of the
contract, and it was his responsibility to uphold the
contract. Hahn testified that Bruner approached him
several times to stop enforcing the substitute work clause
of the contract, and he testified that on one occasion after
July 1972, when he had presented seven or eight grievances
on supervisors doing bargaining unit work, Maintenance
Supervisor Farmer told Hahn that if he "gave up the
grievances on supervisor's work", that he would promote
him to "A-Maintenance." Hahn also testified that Farmer
told him that the Respondent was "having trouble with
OSHA, the Union, and the air pollution, and if the Union
didn't slack off, the plant would close down."
Farmer denies having offered Hahn a promotion to "A-
Maintenance" man if he gave up filing grievances. Farmer
did recall a conversation with Arthur Hahn in which he
told Hahn the Company was in trouble financially, that he
was concerned about his job, and about the plant staying
in operation. Farmer describes the conversation further
that he related to Hahn that the economy in the alloy
industry was low; there was a lack of orders;- there was the
further expense of complying with the National Safety Act,
and "we seemed to be having a rash of unnecessary union
problems-and I very definitely asked them if there was
something that could be done to help enhance the
company's position." Farmer testified that he did not recall
discussing with Hahn the matter of supervisors doing
bargaining work.
Farmer testified credibly and produced documentary
evidence to the effect that Hahn did request a promotion
to "A-Maintenance", and the request was denied on June
14, 1972, "because of lack of experience," and upon
reconsideration was denied again on June 27, 1972. Farmer
further credibly testified that on July 5, 1972, he did
recommend Hahn for "B-Maintenance." Farmer further
testified credibly that under date of June 27, 1972, he made
7 Bruner testified he remembered the incident about the safety glasses
but that he didn't make the remarks attributed to him by Swanson Bruner's
failure to recount the substance of the conversation persuades me that
Swanson's account of what was said is credible
8 Bruner remembers this incident in which Swanson filed a grievance for
his relieving the dispatcher He testified that Swanson just sat there and
watched him for about 30 minutes.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a note to himself recounting the fact that on that day,
"Arthur Hahn explained to M. Farmer that he had been
easy to get along with until we didn't give him "A-
Maintenance" and wrote him a reprimand-." In view of
this positive and documentary evidence submitted to
support Farmer's position, I credit Farmer's denial that he
offered to promote Hahn to "A-Maintenance" man if he
would forego filing grievances.
I do, however, credit Hahn's testimony that Farmer told
him that he was having trouble with OSHA, the Union,
and air pollution, and if the Union didn't slack off, the
plant would close down. This threat to closedown the plant
is consistent with Farmer's concern which he expressed to
Hahn about the economic position of the Respondent. I
find that this threat that the plant would close down if the
Union, "didn't slack off" violated Section 8(a)(1) of the
Act.
Robert Crabtree was a safety man and was elected to
treasurer of the Union in February 1972. Crabtree testified
credibly that in March or April 1972 an employee named
Bob Freeman came to him in the plant and complained to
him that he was being forced to do substitute work which
he didn't want to do. Crabtree, together with Freeman,
approached Labor Foreman Zampardo and told him of
Freeman 's complaint. At this point, Crabtree and Zampar-
do engaged in a debate over the question of whether or not
Bob Freeman could refuse the substitute work; Crabtree
taking the position that, under article 10 of the contract,
Freeman could refuse the work and Zampardo taking the
position that he should perform the substitute work and
file a grievance. Crabtree credibly testified that Zampardo
told him if Freeman went home, "Mr. Yadeskie is going to
know about it and I'm going to be in trouble", and
Crabtree replied, "that's up to him." Zampardo then,
speaking to Crabtree, said, "You keep creating problems
down here for me and if it doesn 't cease, I'm going to have
to find a way to put a stop to it."
Zampardo agrees that, in connection with the above
incident concerning Freeman' s refusal to perform substi-
tute work, he told Freeman to go ahead and do the work
and file a grievance. Zampardo, however, denies that he
told Crabtree that if he didn't stop creating problems,
Zampardo would have to find a way to put a stop to it. In
view of the distress that this substitute work problem was
causing Zampardo, I am persuaded that Crabtree's
testimony is the more probable and accurate. I therefore
find that Zampardo's threat to put a stop to union
complaints about being forced to perform substitute work
interfered with employees' rights to file grievances and to
enforce the contract and therefore violated Section 8(a)(1)
of the Act.
Crabtree credibly testified that on June 30, 1972, a fellow
employee named Dave Willowby came to him in the plant
and told him he was having a problem in the loading dock
area . Plant Manager Yadeskie who was in the area at the
time, ran up to Crabtree and grabbed him by the arm. At
9 Zampardo denied saying to Moms that "now that Ron is gone, maybe
things will get back like they were," but admits he told Moms , "You guys,
these petty grievances , if you got the cause , it's o.k., I don 't care-we'll
thrash them out and settle them . It's the only way to settle things We got to
get along. That's all there is to it; otherwise, we're going to lose our jobs."
Zampardo also recalled that he told Moms, "Now how would you like, you
this point, Yadeskie told him that "he had" enough of
Crabtree's "bull-running around threatening and intimi-
dating," and that he would put a stop to it . Yadeskie's
testimonial account of this incident was that he saw an
employee away from his work area talking to Crabtree and
he learned that this employee was seeking advice from
Crabtree . When this employee went back to his job,
Yadeskie testified he approached Crabtree and asked what
it was about . After Crabtree explained the problem, he
started walking away whereupon Yadeskie grabbed him by
the shirt and asked where he was going . Crabtree said he
was going to see Art Hahn, the Union 's grievance man.
Yadeskie testifies , he replied, "That isn't necessary . We just
do not want these people badgered anymore."
Zampardo who was present when the incident occurred
testified that Yadeskie told Crabtree to return his work,
and grabbed Crabtree by the sleeve and again ordered
Crabtree to go back to his work. I find , on the basis of all
the testimony in connection with this last incident, that
Yadeskie 's conduct was a legitimate exercise of the
Respondent's right to direct the work force . In this
instance , Crabtree was away from his work station and
Yadeskie directed him to return to his work.
Timothy C . Morris was a union shop steward beginning
in February 1972. Morris testified credibly - that after Ron
Schiesz was discharged, Zampardo said to him, "Well, Ron
Schiesz is gone, now, maybe things will get back like they
were ." Morris testified , that on the same day, Zampardo
told him that the Union was filing too many grievances,
and that Yadeskie was angry with him and the other
foremen because they were not writing out enough
reprimands . I find that this remark by Zampardo to Morris
would have a restraining effect on the employees' right to
file grievances and as such violated Section 8(axl) of the
Act.9
Moms, who was also on the Union's safety committee,
testified credibly that in July 1972, he entered Yadeskie's
office and there complimented him on his progress with
respect to plant safety. Morris testifies without contradic-
tion that when he also told Yadeskie that the employees
were getting tired of being watched, Yadeskie became
angry and said "It's people like you and Ron Schiesz and
Robert Crabtree and Cliff Hicks and Randy Swanson .. .
that is going to close this plant down ." I find that this
comment by Yadeskie referred to grievance activity of the
employees and to that extent interfered with, restrained,
and coerced employees in their Section 7 right to file
grievances and constituted a threat of reprisal , namely,
plant closing , in violation of Section 8(a)(1) of the Act.
C. The Discharge of Ronald D. Schiesz
Ronald D. Schiesz was hired in November 1966. He had
been chairman of the Union's grievance committee since
May 1970. He was issued a "suspension subject to
discharge" on February 8, 1972, and was discharged
guys giving me these grievances-how would you like this if I gave you a
reprimand " I find on the basis of the testimony of both Moms and
Zampardo that Zampardo's remarks about giving reprimands substantially
corroborates Moms' testimony and in effect acted as a restrainton the filing
of grievances
OHIO FERRO-ALLOYS CORP.
February 17, 1972, by Plant Manager Yadeskie after he
learned that Schiesz had falsified his application for
employment. The General Counsel contends that Schiesz
was discharged because of his union activity; the Respon-
dent contends the discharge was for application falsifica-
tion. The record shows without dispute that Schiesz was an
aggressive chairman of the grievance committee and was
especially active in taking action in support of his
interpretation of the contract, in filing grievances in
connection with plant safety, the substitute work issue, and
in connection with supervisors performing bargaining unit
work.
Schiesz called a 1-day strike on October 27, 1971, in
protest against the Respondent's failure to promptly post
for bidding all jobs in the labor and shipping department.
Schiesz also called another strike beginning midnight
October 30, 1971, which lasted until the afternoon of
October 31, 1971.
It is established without dispute that Schiesz' conduct in
enforcing the terms of the collective-bargaining agreement,
particularly the substitute work clause of article 10, the
clause forbidding supervisors from performing bargaining
unit work, and in protesting unsafe conditions in the plant
aroused the antagonism of the plant supervisors, especially
Steve Yadeskie, the plant manager who discharged
Schiesz.io
Schiesz' union leadership caused a number of the older
employees to fear that the turmoil and unrest in the plant
would perhaps cause the Tacoma plant to close its doors.
Helen Laskey, aged 59, employed with the Respondent
over 27 years as a dispatcher, was one such employee who
was nearing retirement. Laskey testified that she was quite
concerned about Schiesz' conduct. She testified that "it just
seemed like he was running the Union, where before the
Union would give a little and the men would give a little
and the company could give a little, Schiesz would not let
us give one way or the other." Laskey testified that, in a
conversation she had had with office manager Doris
Willingham, "We couldn't understand . . . why he wanted
to dictate to us, make us do just what he wanted us to do.
We could not understand it at all. And he was telling us
when we should take our breaks . . . that we had to have a
relief man to do it, that we couldn't have a foreman to do
it; consequently, it got to the point that the dispatchers
would stay on the platforms for 8 hours at a time. We did
not want to leave Inexperienced men there." Miss Laskey
asked Mrs. Willingham if she could look into Schiesz'
background "and find out where he had been working
before and why he was so strict with us."
Mrs. Willingham credibly testified that not only Helen
Laskey, but other employees asked her to look into Schiesz'
background. Willingham discussed it with Labor Foreman
Zampardo and they both "wondered if Schiesz was a paid
agent for some other company." This turmoil in the plant
10 Schiesz credibly testi fied to an incident where, after twice observing
Yadeskie performing bargaining unit work in connection with the repair of
a furnace , he criticized Yadeskie and told him he was not setting a very
good example to other supervisors . Yadeskie became incensed and in
profane language told Schiesz that he was tired of his meddling and warned
Schiesz to "watch his step," and that he was nothing but a dictator Schiesz
replied that Yadeskie was the dictator-the despot and told him, "You've
reigned tyranically around this place for as long as I know and the thing
581
disturbed Willingham who feared that it might result in her
losing her job too by the plant's closing down. Willingham
suggested to Zampardo that they "look into Schiesz's
background." Following this conversation with Willing-
ham, and while Plant Manager Yadeskie was on vacation,
Zampardo procured a police record on Schiesz which
disclosed, among other things, that Schiesz had been
arrested for car theft and had served time for armed
robbery at the San Quentin penitentiary. As Yadeskie was
away on vacation, Zampardo phoned one of the Respon-
dent's executives, Mr. Cunningham in Ohio, to notify him.
Zampardo testified that he suspected, because of the
turmoil in the plant and the rumors he heard that the
Union was out to get him, as well from reading a story in
True Magazine about industrial spies, that he suspected
that Schiesz might be an industrial spy.
When Yadeskie returned from his vacation on February
7, 1972, Zampardo gave him the slip of paper containing
Schiesz' police record. Yadeskie personally paid a visit to
the police station where he was assured on identifying a
photograph of Schiesz, that he indeed did have a police
record. Yadeskie, thereupon, on February 8, 1972, issued
to Schiesz a suspension pending discharge for falsification
of his employment application.
With respect to Schiesz' employment application, dated
November 17, 1966, in answer to the printed question:
"Have you ever been arrested or served a jail sentence?"
Schiesz wrote in the answer, "No." To the questions,
"What Charge?," and, "What Penalty?," the answer was
left blank. Over Schiesz' signature was the printed
language in the application, "I understand and agree that
any misrepresentation or omission of facts on this
application is cause for cancellation of this application or
will be cause for immediate dismissal if I am employed."
Yadeskie engaged a detective firm to procure a complete
police record which was furnished by the FBI. This record
showed arrests for car theft 11-29-51, Armed robbery
4-19-54, armed robbery 2-13-62 for which he was
convicted on two counts and sentenced to San Quentin
State Penitentiary, for a term of 5 years to life, as well as
other arrests for minor offenses. When Yadeskie received
the FBI "blow-back" sheet on February 17, 1972, he
turned it over to the Union on the same date and
reaffirmed Schiesz' discharge.
The Arbitration Proceeding
Pursuant to the grievance-arbitration processes of the
collective-bargaining agreement, the propriety of Schiesz'
discharge was submitted to an arbitrator by agreement
between the Respondent and the Union. A hearing was
held before the arbitrator on June 2, 1972. An experienced
staff representative of the United Steelworkers of America,
represented Mr. Schiesz and the Respondent was repre-
sented by legal counsel. A stenographic transcript was
that irritates you is the fact that there is someone here that is stopping part
of the action" and told him further that , "there are people around here that
aren 't afraid of you and we are going to end this reign of intimidation and
coercion." Schiesz then told Yadeskie , "Whether you like it or not, I will be
giving you your Christmas present Monday , which will be a grievance"
Later that same afternoon Yadeskie came to Schiesz and apologized for his
action. Schiesz nevertheless did file the grievance with respect to Yadeskie's
performance of bargaining unit work.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made of the testimony , witnesses were called and examined
and cross-examined , documentary evidence was submitted
by the parties and postheanng briefs were submitted to the
arbitrator by each of the parties . The Union sought to
prove , and argued in its brief , inter alia, that Schiesz'
discharge was based on his union activity . The Respondent
argued that the discharge was based solely on Schiesz'
concealment of his criminal record in completing his
application for employment in November 1966.
The Union 's grievance report , Exhibit 4 in the arbitra-
tion proceeding , dated 2-17-72 and signed by Schiesz and
Arthur W. Hahn , grievance chairman , reads as follows:
Nature of Grievance SUSPENSION & DISCHARGE
- Article 12
On Feb. 13, 1972, after a review of my employment
application , the charge of "falsification" as stated in
the suspension notification was established as correct
and the discharge was affirmed.
On the basis of discussions held to date, I challenge
S. R. Yadeskie 's assertions that the action taken in this
case is neither discriminatory nor inconsistent with past
practice . I also allege that the Co.'s motivation for this
action hinges quite significantly on the grievant 's active
role in union activity.
I maintain that this action is unfair and unjust. I ask
to be reinstated with no loss of seniority, and
compensated for all earnings lost.
/s/ Arthur W. Hahn /s/, Ronald W . Schiesz
Arthur Hahn Ronald W . Schiesz, #2910
Grievance Chairman 2/17/72
The Respondent, in denying the grievance by letter dated
2-22-72 , an exhibit in the arbitration proceedings, an-
swered as follows:
Re: Grievance #16-72
Dear Mr . Hughes:
The grievant in this case has stated that his discharge
was motivated by his Union activities '; however, I want
to make it clear that the discharge was not for his
activities prior to his employment or subsequent to his
employment , but for the fraud committed upon the
Company at the time he was hired.
The employment application completed by the grievant
states that any falsification of the record would be
reason for immediate dismissal . The Company Policies
and Procedures also list falsification as a reason for
immediate dismissal . This dismissal was effectuated
immediately upon knowledge of the falsification.
At the time the grievant was hired, the Company was
having a large turn-over of employees ; therefore, it was
impossible to complete a thorough check of each
applicant at the time of hire. In pre -employment
checking, the Company can only assume a reasonable
burden with regard to time and expense , which makes
truthful information provided by an applicant of prime
importance in checking his record, and in this case, we
find some of the prior employers listed are non-
existent.
It is apparent that the grievant did, knowingly,
willfully , and with intent to deceive, falsify his
employment application . We must maintain that
Management has a right that the mere passage of time
cannot dissipate to weigh the total record and the
measure of the crimes committed in determining the
suitability of the applicant for employment.
In this case had the record been known , the grievant
would not have been employed.
DETERMINATION : Grievance Denied
Sincerely,
R. F. Miller , Director
Industrial Relations
RFM:ds
cc: S. R . Yadeskie
Art Hahn , Grievance Chairman
On page 7 of the Union 's post-hearing brief to the
Arbitrator , it argued as follows:
... Now this brings up the question of just why
was Mr . Schiesz discharged . The answer is simply-and
the Union proved beyond a doubt-that was for his
Union activity. The company felt that if they could
relieve themselves of Mr . Schiesz, somehow, their
Union problems would vanish and there would be no
more turmoil in the plant.
The Respondent argued on pages 15 and 16 of its post-
hearing brief to the arbitrator that it was not motivated to
discharge Schiesz because of his union activity. The
Respondent argued as follows:
Next , the grievance would seek reinstatement be-
cause of the Company 's "motivation"; it allegedly
hinged on "the grievant's active role in union activi-
ties". Even if true , this would be no defense to
falsification of an employment application . But beyond
that there is no evidence that it was true. The Company
has had a union for years . It has had active members
before . As Yadeskie put it , union activity is rather
"cyclical" . It will undoubtedly have active union
members in the future . There is no evidence that any
union activity on Schiesz 's part was a motivating factor
in his discharge . True , some activities on his part
caused justified concern on the part of employees. It
was the expression of this concern to Yadeskie that
caused him to go to the Tacoma Police Department
where he found out that Schiesz in fact had served a jail
sentence and had a criminal record.
Language in the arbitrator 's decision clearly shows that
the arbitrator considered the Union 's claim that Schiesz
was discharged for union activity.
Thus the arbitrator , page 3 of his decision , in reciting the
Union's grounds for the reinstatement of Schiesz stated
OHIO FERRO-ALLOYS CORP.
that . . . "The grievant was discharged not for proper
cause but for union activity."
That the issue of Schiesz' union activity was considered
by the arbitrator is disclosed further, page 5 of his decision,
where he states as follows:
Thus we are faced quite clearly with an issue which
could possibly hinge on discrimination because of
union activity. However the relations of the actions of
the employees who carried the information to Yade-
skie, to actual discrimination by the Company for
Union activity is a bit far-fetched.
Further evidence that the arbitrator treated the issue as
to whether Schiesz was discharged for union activity
appears on page 5 of the arbitrator's decision as follows:
... We have a record, apparently, of a man who
once on the job, was able to keep out of trouble with
the police and authorities, who performed adequately
on the job and also became highly active in the
leadership of union activities in the Company. These
matters must not be disregarded in this case even
though the proven falsification would seem to indicate
that discharge would be automatic.
On page 7 of his decision, the arbitrator spoke as
follows:
... In this case that would involve protecting
Schiesz from the discriminatory actions of his fellow
employees because of his union activity.
The Arbitrator's Decision and Award
Apparently as a compromise between the respective
positions of the Respondent and the Union, the arbitrator
made the following award:
Since the decision itself is clouded because of the
mutual errors of both the Company and the employee it
would appear that we have either to determine who
committed the most fatal or significant error or try to
provide a balance in the penalty. The latter is my
choice.
Beginning no later than ten days from the date of this
award I, therefore, order that the grievant Ronald
Schiesz be offered his job back at the same rate of pay
as of the time he was terminated and only after he has
filled out an application form accurately and properly.
Should Schiesz accept the offer it will be with the
conditions that should be convicted of any crime of
felonious nature from the moment of his re-entry in the
work of the Company he shall immediately be
discharged with no recourse. The grievant is not to
receive back pay or seniority credit for the time he has
not been working for the Company. His seniority
accumulation will start where he left off on February
11, 1972.
583
Legal Analysis and Conclusion With Respect to the
Discharge of Schiesz
In Spielberg Manufacturing Company, 112 NLRB 1080,
the Board while acknowledging that it is not bound, as a
matter of law, by an arbitration award, held nevertheless
that where the arbitration "proceedings appear to have
been fair and regular , all parties had agreed to be bound,
and the decision of the arbitration panel is not clearly
repugnant to the purposes and policies of the Act . . . . we
believe that the desireable objective of encouraging the
voluntary settlement of labor disputes will best be served
by our recognition of the arbitrator's award." This has
come to be known as the Spielberg doctrine and has been
applied by the Board in numerous decisions either
deferring to, or disregarding the, arbitrator 's decision.
I am of the opinion , and I have concluded that the
instant case meets the Spielberg standards.
It is clear that the arbitration proceedings were fair and
regular. The arbitrator, Dr. Keltner, was selected by
mutual agreement from a panel submitted by the Federal
Mediation and Conciliation Service . Schiesz was represent-
ed ably by Thomas D. Hughes, an experienced staff
representative of the United Steelworkers of America. Both
sides were afforded full opportunity to present their case
and to submit briefs and to fully argue their respective
positions . No claim is made that Schiesz was dissatisfied
with or was opposed to union representation.
Section 11.1, D of the 1971 collective-bargaining agree-
ment provided for final and binding arbitration as the final
step in differences arising between the Respondent and the
Union as to the meaning and application of the contract
provisions or should any trouble of any kind arise in the
plant as provided in section 11.1 of the agreement.
I am of the opinion and I conclude that the decision of
the arbitrator was not clearly repugnant to the purposes
and policies of the Act. On the basis of the record evidence
which appears in the case at bar, reasonable minds could
differ with respect to the inferences to be drawn from the
entire record. Some could reasonably find that Schiesz was
discharged for concealing a past serious criminal record,
and that if the Respondent had known of the record, it
would not have hired Schiesz in the first instance, as
Yadeskie testified. See, e.g., N.L.RB. v. Whitelights
Products Division, 298 F.2d 12, 16 (C.A. 1, 1962) and
Alterman Transport Line, Inc., 173 NLRB 434. On the same
record, other reasonable minds could fairly conclude that
Schiesz' aggressive union activity was the cause of his
discharge, and that absent his union activity which had
made him persona non grata to the Respondent, the
Respondent would not have discharged him on the
discovery of his past criminal record, particularly in view
of his law abiding record and his satisfactory work
performance in the 5-1/2 years of his employment by the
Respondent. See, e .g., Jacksonville Paper Company, A
Division of Unijax Corporation, 182 NLRB 6. As I have
stated earlier in this Decision , it appears that the decision
and award of the arbitrator was calculated to strike a
compromise between the opposing claims of Schiesz and
the Union on one hand, and the Respondent on the other
hand. The arbitrator's award, which was issued on August
3, 1972, required an offer of reinstatement within 10 days
584 DECISIONS OF NATIONAL
from the award , but without backpay . The record shows
that Schiesz was reinstated with full seniority on October 9,
1972, with backpay from August 13 to October 9, 1972.
The award also required Schiesz , as a condition of
reinstatement, to submit a new application form "accurate-
ly and properly" with which he has complied.
Having found that the criteria set forth in the Spielberg
case have been met , I have concluded , in deference to the
award of the arbitrator with which the Respondent has
complied , that the 8(a)(1) and (3) allegation in connection
with Schiesz ' discharge should be dismissed . See Gulf
States Asphalt Company, 200 NLRB No. 100 (December
18, 1972). Campbell Sixty Six Express, Inc., 200 NLRB No.
157 (December 22, 1972). International Union of Electric,
Radio and Machine Workers Local Union No. 130
AFL-CIO-CLC (Westinghouse Electric Corporation), 200
NLRB No. 115 (December 5, 1972). Superior Motor
Transportation Co., Inc., 200 NLRB No. 139.
Upon the basis of the entire record, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threats to discharge employees, to issue repn-
mands to them, to discriminate against them, or to take
reprisals against them, because they filed grievances in
connection with their wages, hours, or other working
conditions and terms of employment, the Respondent
violated Section 8(a)(1) of the Act.
4. By threats that the plant would close down if
employees continued to file grievances with respect to their
wages, hours, and working conditions, the Respondent
violated Section 8(a)(1) of the Act.
5. It would not effectuate the purposes and policies of
the Act to assert jurisdiction with respect to those
allegations of the complaint relating to the discharge of
Ronald Schiesz.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of this proceeding, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER"
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening to discharge, take reprisals against, or
discriminate against employees because they have filed
grievances with respect to wages, hours, and working
conditions.
(b) Threatemng to close the plant if the employees file
grievances with respect to their wages, hours, or working
conditions.
(c) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of the
LABOR RELATIONS BOARD
right to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Post at its plant at Tacoma, Washington, copies of the
attached notice marked "Appendix." 12 Copies of said
notice, on forms provided by the Regional Director for
Region 19, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) The allegations of the complaint relating to the
discharge of Ronald W. Schiesz are dismissed.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
11 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.
12 In the event the Board 's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law and we have been ordered to post this notice. We
intend to carry out the order of the Board and abide by the
following:
WE WILL NOT threaten employees with loss of jobs,
closing of the plant, or other punishment because of
their union activity or because they filed grievances.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
these rights.
All employees are free to join or assist any union, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
Our employees are also free to refrain from any or all such
activities, except to the extent that their rights may be
affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized
in Section 8(a)(3) of the National Labor Relations Act.
OHIO FERRO-ALLOYS CORP. 585
OHIO FERRO -ALLOYS This notice must remain posted for 60 consecutive days
CORPORATION from the date of posting and must not be altered, defaced,
(Employer) or covered by any other material.
Any questions concerning this notice or compliance with
Dated By its provisions may be directed to the Board's Office, 10th
(Representative ) (Title) Floor, Republic, 1511 Third Avenue , Seattle , Washington
This is an official notice and must not be defaced by
98101, Telephone 442-5692.
anyone.