U.S. Steel

National Labor Relations Board - Board Decisions

Sep 12, 2003

340 N.L.R.B. 153 (N.L.R.B. 2003)

U.S. STEEL 153
U.S. Steel, a Division of USX Corporation and United
Steelworkers of America, Local Union No. 5092,
AFL–CIO. Cases 4–CA–27695–1 and 4–CA–
27695–2
September 12, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND
WALSH
On July 25, 2001, Administrative Law Judge Michael
A. Marcionese issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, and a reply
brief. The General Counsel filed an 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 decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, U.S. Steel, a Division of
USX Corporation, Fairless Works, Pennsylvania, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order.

MEMBER SCHAUMBER, concurring.
I agree with my colleagues that the Respondent vio-
lated Section 8(a)(1) and (3) of the Act by discharging
accounting department employees Brian Koontz and
Stanley Zuczek on June 4, 1998,1 because of their union

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
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.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) and (3) of the Act by discharging Brian Koontz and Stanley
Zuczek because of their union and other protected concerted activities,
we find it unnecessary to rely on the judge’s speculation that: employee
Koontz likely would have simply ignored Department Manager Clair’s
request to return the pager in light of all that “he and Zuczek had re-
cently been through at the hands of the Respondent”; employee Zuczek
likely would have ignored Department Manager Clair’s request to
return the pager, and that Clair’s threat to bill employee Zuczek for the
pager “must have seemed inconsequential”; and regarding Department
Manager Pentin’s motive for attempting to hand-deliver the May 6,
1998 letters to employees Koontz and Zuczek.
2 We will substitute a new notice in accordance with our recent deci-
sion in Ishikawa Gasket American, Inc., 337 NLRB 175 (2001).
1 All dates are in 1998 unless otherwise stated.
and other protected concerted activities.2 As explained
by the judge, “[t]he real issue here is whether [Koontz’
and Zuczek’s] failure to return [their] pagers would have
resulted in [their June 4] termination if not for Koontz’
and Zuczek’s history of union and protected concerted
activity.” (Sec. II,B, par. 12.) I agree with the judge and
my colleagues that the answer is “no.” I write separately,
however, to explain why the Respondent’s argument–
that given Koontz’ and Zuczek’s history of insubordina-
tion, the answer should be “yes,” an argument to which I
am not unsympathetic, must fail.
Koontz and Zuczek were longtime employees of the
Respondent who had clean disciplinary records up until
October 1997. Koontz and Zuczek were also longtime
union officials who at all times relevant represented the
bargaining unit employees as, respectively, grievance
committeeman and grievance committee chairman. As
part of their union responsibilities, in May 1996, Koontz
and Zuczek filed grievances on behalf of two female
bargaining unit members who alleged that their supervi-
sor had engaged in sexual harassment. Koontz’ and Zuc-
zek’s filing of charges and meetings with the Respon-
dent’s officials over the sexual harassment issues contin-
ued into 1997. Also in 1997, Koontz and Zuczek pro-
tested John Pentin’s, the Respondent’s accounting de-
partment manager, work assignments for a May 1997
physical inventory. Pentin did not appreciate Koontz’
and Zuczek’s perceived interference and, at a May 30,
1997 meeting to discuss the issue, called Koontz a “m—
f—.” Koontz and Zuczek then informed another man-
ager of Pentin’s behavior at the meeting. On the follow-
ing day, May 31, Pentin told Zuczek that if Koontz and
Zuczek pursued the incident any further and put a black
mark on his record, he would fire them both.
It is against this background of a “history of union and
protected concerted activity,” that the judge considered
the issue presented, i.e., whether the Respondent’s June 4
discharges of Koontz and Zuczek violated the Act. The
Respondent, on the other hand, asserts that the June 4
discharges can only be properly understood when viewed
in the context of the Respondent’s earlier discipline of
Koontz and Zuczek.
As to these disciplinary actions, on October 20, 1997,
Koontz and Zuczek received 5-day suspensions (their first
discipline) for being “absent from work without permis-
sion.” Pentin had called a mandatory meeting for October
16, 1997, and employees had been informed that they
would have to get excused by Pentin if they could not
attend the meeting. Koontz and Zuczek neither attended
2 I also agree with my colleagues that the judge properly denied the
Respondent’s motion to sever and dismiss the complaint allegations
relating to Koontz.
340 NLRB No. 22
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 154
the meeting nor requested excuses from Pentin. Instead,
they followed their routine procedure of informing their
immediate supervisor when they were called out on union
business. Then, on January 5, the Respondent discharged
Koontz and Zuczek for failing to report to work as di-
rected on December 22, 1997. In brief, Koontz and Zuc-
zek had remained at work through November 11, 1997,
the last day of the disciplinary hearing over their October
20 5-day suspensions. They called out sick on November
12, 1997, and their doctor sent the Respondent letters
regarding their condition and explaining that they would
not be able to return to work until further notice. The
Respondent plainly doubted whether Koontz and Zuczek
were unable to return to work for medical reasons, but it
failed to follow the advice of its own doctor, Dr. Pearcy,
that it get an independent medical evaluation of Koontz
and Zuczek. Instead, on December 18, 1997, the Re-
spondent directed that Koontz and Zuczek return to work
on December 22, 1997, and then it denied the Union’s
December 19, 1997 request that the Respondent delay
Koontz’ and Zuczek’s return until December 26, after the
Christmas holiday, so that both men could consult their
doctors. When Koontz and Zuczek failed to report to
work as directed on December 22, the Respondent noti-
fied them that it had suspended them for 5 days subject to
discharge. The Respondent converted their suspensions
to discharges on January 5.
The Union grieved both the 5-day suspensions and the
January 5 discharges. Arbitrators sustained both griev-
ances. As to the 5-day suspensions, the arbitrator found
that although Koontz and Zuczek appeared to have “mis-
use[d] their positions as union officials in a manipulative
manner to miss the October 16 meeting,” he nevertheless
sustained the grievances on the grounds that his was “an
isolated act of misconduct” which, given Koontz’ and
Zuczek’s clean disciplinary records, did not warrant the
Respondent’s disregard of its progressive disciplinary
system. (It is unclear why, in light of his finding of a
“misuse [of Koontz’ and Zuczek’s] positions as union
officials,” the arbitrator did not overrule the grievances
but reduce the discipline.)
As to the January 5 discharges, the arbitrator in that
proceeding found that the grievants “presented evidence
of disability which on its face cannot be rejected as un-
reasonable” and that the Respondent had not established
a convincing reason for rejecting that evidence. The ar-
bitrator explained that the determination that the Re-
spondent lacked proper cause to discharge Koontz and
Zuczek was based on “a finding that at the time they
were ordered to report to work they satisfied the eligibil-
ity requirements for sick leave and salary continuance set
forth” in the contract. So much for the relevant back-
ground.
As to the June 4 discharges at issue here, the facts are
relatively straightforward. Having discharged Koontz and
Zuczek on January 5 for failure to report to work, the Re-
spondent, by certified letters of January 13, instructed
Koontz and Zuczek to return their pagers to the Respon-
dent. The letters warned that failure to return the pagers
within 30 days would result in their being personally
billed for the cost of the pagers (the company from which
the Respondent leased the pagers charged the Respondent
$99.95 for lost pagers). Both men ignored the letters’
contents. Neither returned his pager within the required
30 days nor otherwise responded to Respondent’s January
13 letter. The Respondent, however, took no action
against them at that time. Then, on May 5, at the end of
the arbitration hearings over their October 1997 suspen-
sions, Pentin attempted to hand-deliver letters, dated May
6, to Koontz and Zuczek.3 In the letters, Pentin referred
to the January 13 letters and stated that this was Koontz’
and Zuczek’s second and final notice to return the pagers.
The letters, which were identical, warned that failure to
return the pagers by May 20 could result, inter alia, in the
issuance of “discipline up to and including discharge.”
Neither responded to the May 20 letter. On May 29, the
Respondent sent certified letters to Koontz and Zuczek
which notified them of 5-day suspensions subject to dis-
charge for “failure to return company property as in-
structed.” The Respondent converted the suspensions to
terminations by certified letters dated June 4.
Relying on Koontz’ and Zuczek’s filing of grievances
and unfair labor practice charges on behalf of unit em-
ployees, the Respondent’s knowledge of that protected
concerted activity, and the animosity exhibited by Pentin
and other Respondent officials toward Koontz and Zuc-
zek for engaging in that activity, the judge found that the
General Counsel had carried its initial burden under
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), of
showing that the Respondent’s June 4 discharges of
Koontz and Zuczek were unlawfully motivated. In find-
ing that the General Counsel had shown that the June 4
discharges were unlawfully motivated, the judge relied in
addition on the earlier arbitration awards, and on the

3 In finding the violations alleged, I do not rely on the judge’s un-
supported speculation that “Pentin’s hand-delivery of these letters was
a calculated strategy by him and the Respondent to ensure that Koontz
and Zuczek did not know their jobs were again in jeopardy.” (Sec.
II,A,2, par. 14.) Indeed, it is just as, if not more, likely that the Re-
spondent wanted to ensure that Koontz and Zuczek were aware that
their jobs were in jeopardy and therefore hand-delivered the notices
rather than running the risk that Koontz and Zuczek would ignore let-
ters sent by mail, as they had the January 13 letters.
U.S. STEEL 155
facts that the Respondent had never previously disci-
plined, much less discharged, an employee for failing to
return a pager, and that it had discharged Koontz and
Zuczek without conducting an investigation prior to dis-
charging them.
Having found that the General Counsel had satisfied
its initial burden of showing that the discharges of
Koontz and Zuczek were unlawfully motivated, the judge
next considered whether the Respondent had shown on
rebuttal that it would have discharged Koontz and Zuc-
zek even absent their protected concerted activity. In
finding that the Respondent failed to rebut the General
Counsel’s initial showing that the discharges were
unlawfully motivated, the judge found without merit the
Respondent’s various defenses, including, inter alia, its
defense that the June 4 discharges were justified because
Koontz’ and Zuczek’s failure to return the pagers was the
culmination of a pattern of defiant behavior that was evi-
denced by their conduct which led to their October 20,
1997 5-day suspensions and their January 5 discharges.
I agree with the judge that since the arbitrators found
that the 5-day suspensions and January 5 discharges were
not justified, and that the arbitration awards ordered the
expunction of the disciplinary actions from Koontz’ and
Zuczek’s records, the Respondent cannot rely on that
discipline to justify its June 4 discharges of Koontz and
Zuczek. That is not to say, however, that Koontz and
Zuczek did not engage in insubordinate behavior that, in
other circumstances, might have subsequently justified
their June 4 discharges.
For I find that Koontz and Zuczek did engage in an act
of insubordination when they deliberately failed both to
attend the October 16 mandatory meeting and to notify
Pentin, as required, that they would be absent. Indeed,
the arbitrator concluded as much when he found that
Koontz and Zuczek appeared to have “misuse[d] their
positions as union officials in a manipulative manner to
miss the October 16 meeting.” I also find that Koontz
and Zuczek may have engaged in insubordinate behavior
by failing to report to work as ordered on December 22,
1997. Assuming such acts of insubordination, in my
view the Respondent would have been justified in dis-
charging Koontz and Zuczek for another, third, act of
insubordination, the failure to return their pagers as in-
structed.
The problem with the Respondent’s “insubordination”
defense, however, is that the Respondent did not disci-
pline Koontz and Zuczek for insubordination. Rather, it
gave them 5-day suspensions on October 20, 1997, for
being “absent from work without permission”; it dis-
charged them on January 5 for failing to report to work
as directed on December 22, 1997; and it discharged
them a second time on June 4 for “failure to return com-
pany property [i.e., the pagers] as instructed.” Thus, the
Respondent itself tied its discipline and discharges of
Koontz and Zuczek to specific individual acts of alleged
misconduct. Further, it is significant that the Respon-
dent’s June 4 discharge of Koontz and Zuczek was in-
consistent even with the initial disciplinary action it first
notified them it would take if the pagers were not re-
turned, the deduction of the cost of the pagers from their
salaries. For although the Respondent set out this initial
disciplinary action in its January 13 letter, i.e., after the
October 20, 1997 5-day suspensions and after the Janu-
ary 5 discharges, it made no reference to the earlier sus-
pensions and discharges in the January 13 letter. Nor at
that time did it to rely on those suspensions and dis-
charges to justify a more severe disciplinary action. For
these reasons, it is too late in the day for the Respondent
to justify its June 4 discharges of Koontz and Zuczek by
asserting that it discharged them for a reason other than
the reason it gave at the time.
In sum, the Respondent’s “insubordination” defense
must fail. If, however, the Respondent had actually dis-
ciplined Koontz and Zuczek for insubordination, and had
applied its own progressive disciplinary system, rather
than an escalating one, to each act of misconduct, the
result might be different.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT discharge or otherwise discriminate
against any of you for supporting United Steelworkers of
America, Local Union No. 5092, AFL–CIO, or any other
union, or for engaging in any other concerted activities
that are protected by the Act.
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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 156
WE WILL, within 14 days from the date of the
Board’s Order, offer Stanley Zuczek full reinstatement to
his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Brian Koontz and Stanley Zuczek
whole for any loss of earnings and other benefits result-
ing from their 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 discharges of Koontz and Zuczek, and WE
WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the discharges
will not be used against them in any way.

U.S. STEEL, A DIVISION OF USX CORPORATION

Barbara C. Joseph, Esq., for the General Counsel.
Thomas G. Servodidio and Joseph N. Fabrizzio, Esqs. (Duane,
Morris & Heckscher, LLP), for the Respondent.
Wayne Hamilton, Esq. (Galfand, Berger, LLP), for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. I
heard this case in Philadelphia, Pennsylvania, on June 6 and 7,
August 14–18, and September 6, 2000. United Steelworkers of
America, Local Union No. 5092, AFL–CIO (the Union) filed
the unfair labor practice charges on November 27, 1998.1
Based on these charges, a corrected order consolidating cases,
consolidated complaint and notice of hearing issued on July 8,
1999. The complaint alleges that the Respondent, U.S. Steel, a
Division of USX Corporation, violated Section 8(a)(1) and (3)
of the Act by discharging employees Brian Koontz and Stanley
Zuczek on June 4, 1998.2 The Respondent filed its answer to
the complaint on July 23, 1999, denying the unfair labor prac-
tice allegations and asserting several affirmative defenses. The
Respondent asserted that its actions were motivated by a good-
faith belief that Koontz and Zuczek had committed offenses
warranting discipline; that, assuming protected concerted activ-
ity were found to have motivated the Respondent’s actions, it
would have taken the same action in the absence of protected
activity; and that the Respondent had already rescinded the
June 4 discharge of Koontz.3

1 All dates are in 1998 unless otherwise indicated.
2 The corrected complaint also alleged that a November 3, 1998 dis-
charge of Koontz was unlawful. By letter dated March 2, 2000, the
Regional Director dismissed this allegation, deferring to an arbitration
award upholding the discharge. See Spielberg Mfg. Co., 112 NLRB
1080 (1955), and Olin Corp., 268 NLRB 573 (1984).
3 The Respondent also asserted a general 10(b) defense. The Re-
spondent did not pursue this defense at the hearing or in its posthearing
brief.
The June 4 terminations of Koontz and Zuczek occurred in
the context of a protracted dispute between these two long-term
employees, both active union representatives, and the Respon-
dent’s management. The story that unfolded at the hearing be-
gan in the spring of 1996, if not earlier, when employees com-
plained to Koontz and Zuczek about perceived sexual harass-
ment by their supervisor, and continued beyond the specific
unfair labor practice alleged in the complaint. The June 4 termi-
nations of Koontz and Zuczek were the second attempt by the
Respondent to terminate them in a 6-month period. The Re-
spondent initially terminated Koontz and Zuczek on January 5.
An arbitration panel reversed that action in an award that issued
after the June 4 discharge. Less than 3 months earlier, on Octo-
ber 20, 1997, the Respondent had suspended Koontz and Zuczek
for 5 days, an action that was also reversed in an arbitration
award rendered after the June 4 terminations. The General
Counsel has deferred to both arbitration awards under the
Board’s Spielberg/Olin, supra, deferral policy. On November 3,
after the discharge at issue here, the Respondent attempted a
third time to discharge Koontz. That attempt proved successful,
with the arbitrator upholding the discharge in an award to which
the General Counsel has also deferred. The facts related to the
June 4 terminations at issue before me are relatively simple and
straightforward, and the applicable legal standard, i.e., the
Board’s Wright Line4 motivation test, is well established. How-
ever, my decision is complicated by the parties’ insistence that I
consider all of the preceding events in determining whether the
Respondent’s action on June 4 was motivated by protected ac-
tivity, or would have occurred even in the absence of this activ-
ity. The General Counsel and the Charging Party argue that the
June 4 termination was merely one in a series of discriminatory
and pretextual actions which the Respondent took against
Koontz and Zuczek with the intent of ridding itself of these ac-
tive and outspoken union grievance representatives. On the other
hand, the Respondent argues that the conduct for which Koontz
and Zuczek were terminated on June 4 is just another example
of a pattern of defiant behavior and disregard of management
authority by Koontz and Zuczek that is unrelated to their pro-
tected activity. The Respondent and the General Counsel each
offered a great deal of evidence to convince me of their respec-
tive positions. Much of this evidence has already been consid-
ered by three arbitration panels whose findings have been effec-
tively adopted by the Board’s General Counsel. Other evidence,
not previously considered, will be discussed in the findings of
fact. Although I may not address all of the evidence and the
many conversations and events that I heard testimony about in
this proceeding, all of the evidence has been considered in
reaching my decision. Statements or events that are remote in
time or of little relevance to resolving the unfair labor practice
issue have been omitted from this decision.
Before turning to the facts, there are two preliminary mo-
tions that must be addressed.
4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert
denied 455 U.S. 989 (1982).
U.S. STEEL 157
Motion to Correct the Record
The parties filed their respective briefs on October 20, 2000.
Counsel for the General Counsel filed with her brief a motion
to correct the transcript. The Respondent filed a response in
which he stipulated to most of the General Counsel’s correc-
tions, either as proposed or as modified by the Respondent, and
proposed several additional corrections that were accurate and
consistent with the corrections proposed by the General Coun-
sel. As to these corrections, I shall grant the General Counsel’s
motion as supplemented by the Respondent’s response and
correct the transcript accordingly. Counsel for the Respondent
opposed three of the General Counsel’s proposed corrections.
Because there is a significant dispute between the parties as to
these three alleged errors in the transcript, they require addi-
tional discussion.
The General Counsel proposed correcting the transcript at
page 615, line 10 from “does he” to “do you.” The Respondent
contends that the current transcript version accurately reflects
the question that counsel for the General Counsel asked the
witness at the hearing. The Respondent argues that the General
Counsel is attempting to change her question to remove an
alleged inconsistency in the testimony of the witness (Phillip
Bourke). Having reviewed the disputed portion of the transcript
in the context of THE General Counsel’s overall examination
of the witness and his earlier responses, I find that the correc-
tion proposed by the General Counsel is accurate and that the
text in the transcript is erroneous. Accordingly, I shall grant the
General Counsel’s motion in this respect.
The General Counsel proposed correcting the transcript at
page 783, line 15 from “it’s part” to “it’s not part.” This portion
of the transcript relates to the Respondent’s proffer of a docu-
ment (R. Exh. 29) that contained handwriting on the back. The
dispute is over what Respondent’s counsel said at the hearing
when asked about this handwriting. Although my own recollec-
tion is that counsel said it was not part of the document, I find it
unnecessary to correct this portion of the transcript. Counsel for
the Respondent stated at the hearing, and reiterated in his
posthearing response to the General Counsel’s motion, that the
Respondent was not relying on this handwritten part of the
document. Moreover, in ruling on the proffer at the hearing, I
explicitly excluded the handwriting from the document re-
ceived in evidence. Whether the handwriting was part of the
document or not is of no consequence because the handwriting
is not in evidence and cannot be considered in making a deci-
sion in this matter.
The General Counsel proposed correcting the transcript at
page 858, line 21 from “contest”5 to “conduct.” The Respon-
dent argues that the word in the transcript is a correct transcrip-
tion of the witness’ testimony. Having reviewed the transcript
in the context of the overall testimony of this witness (Deborah
Jensen, the attorney for the Union who represented the dis-
criminatees during an arbitration proceeding), I agree with the
Respondent that the witness used the word contest, not conduct.
Moreover, the transcript as currently typed makes more sense

5 As the Respondent correctly notes, the word that actually appears
in the transcript at that location is “contest,” not “content,” as claimed
by the General Counsel.
in context than the correction proposed by the General Counsel.
Accordingly, I shall deny the General Counsel’s motion to
correct the transcript in this regard.
A complete list of the corrections made to the transcript pur-
suant to my order is attached to this decision as appendix A
[omitted from publication].
The Respondent’s Motion to Sever and Dismiss
Case 4–CA–27695–2 (Koontz’ case)
At the outset of the hearing, the Respondent filed a written
motion to sever and dismiss the charge filed by the Union on
Koontz’ behalf. The Respondent argued that the Union negoti-
ated a prearbitration settlement of its grievance over Koontz’
June 4 discharge, the subject of this proceeding, and that the
Board should defer to that settlement. The Respondent argued
further that the settlement and the subsequent termination of
Koontz on November 3, upheld in an arbitration decision to
which the General Counsel has already deferred, renders further
litigation of the unfair labor practice allegation moot. Counsel
for the General Counsel objected. The General Counsel con-
tended that there was no “negotiated” settlement of the griev-
ance over Koontz’ June 4 discharge. While conceding that the
subsequent termination of Koontz would limit the remedy for
any unfair labor practice found here, the General Counsel dis-
puted Respondent’s contention that the issue was moot. Be-
cause the Respondent’s motion raised substantial factual issues
regarding the existence of a settlement and because the motion
had been filed with no advance notice to the General Counsel, I
deferred ruling on the Respondent’s motion until after hearing
all the evidence and receiving briefs from the parties.6
During the hearing, Deborah Jensen, the Union’s attorney,
and James Garraux, the Respondent’s vice president of em-
ployee relations who held the position of general manager of
employee relations at the time, testified regarding the alleged
“settlement” of Koontz’ grievance. Jensen testified that, on
October 27, the date the grievances over Koontz’ and Zuczek’s
June 4 terminations were scheduled to be arbitrated, she had a
discussion with Garraux before the hearing commenced. Gar-
raux told her that the Respondent intended to arbitrate Zuczek’s
grievance solely on the basis of timeliness. With respect to
Koontz, Garraux said that the Respondent had decided to sus-
tain the grievance, to reinstate Koontz and make him whole.
According to Jensen, Garraux did not tell her that the Respon-
dent planned to terminate Koontz again before he could return
to work. Based on Garraux’s representations, Jensen decided
not to pursue Koontz’ grievance to arbitration. Jensen denied
that the grievance was ever withdrawn. Garraux’s testimony
differed only slightly. According to Garraux, he told Jensen that
“in order to resolve the case,” he would rescind the discharge,
make Koontz whole and treat his personnel record as if the
6 The General Counsel indicated that dismissal of the Koontz’
charge would not have resulted in any reduction in the length of the
hearing because Koontz was a corroborating witness for Zuczek and the
General Counsel was relying on the Respondent’s similarity of treat-
ment of the two discriminatees as a factor showing unlawful motiva-
tion. The Respondent’s counsel conceded that, even if I deferred to the
“settlement” of Koontz’ grievance, the General Counsel would have the
right to offer the same evidence in support of Zuczek’s charge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 158
incident never occurred. Garraux testified that Jensen accepted
this resolution of the grievance by not going forward with the
arbitration. Although Garraux denied that he specifically told
Jensen that Koontz would be reinstated, he acknowledged being
aware that Jensen would believe that reinstatement was implicit
in his offer to rescind the discharge.7 Garraux admitted that he
knew at the time of this discussion that the Respondent was
going to suspend Koontz for 5 days, subject to discharge, be-
fore he could return to work. Garraux also admitted not telling
Jensen any of this. Garraux testified that the Respondent’s ob-
jective in revoking Koontz’ June 4 discharge only to discharge
him again was to get damaging evidence against Koontz, indi-
cating that he had lied in an unemployment proceeding, before
the arbitrator who had ordered him reinstated. On October 30, 3
days after Jensen’s conversation with Garraux, the Respondent
issued Koontz the 5-day suspension, which it converted to a
discharge on November 3.
On October 6, 1999, almost a year after the parties had “set-
tled” the grievance over Koontz’ June 4 discharge, the parties
appeared again before the arbitrator. This time, the arbitrator
was scheduled to hear the Union’s complaint that the Respon-
dent had not complied with the arbitrator’s August 31 backpay
award concerning the January 5 discharge of Zuczek and
Koontz.8 The transcript of that hearing shows that the parties
negotiated a settlement of the Union’s claims and put the terms
of the settlement on the record. Jensen testified that this settle-
ment had nothing to do with the grievance over the June 4 dis-
charge. Garraux testified that the agreement reached by the
parties in October 1999 resolved the “make whole” issues re-
garding both the August 31 arbitration award and the October
1998 “settlement” of the grievance over Koontz’ June 4 dis-
charge. In the arbitration transcript, Garraux precedes his de-
scription of the terms of the settlement with a statement that he
was “going to put on the record a settlement of the claims
raised in the compliance hearing.” He then describes what the
Respondent had agreed to do in order to comply with the arbi-
trator’s backpay order for Zuczek and Koontz. With respect to
Koontz, the Respondent agreed to make him whole by paying
him salary continuance from January 5, the date of his first
discharge, until March 1, and backpay based on a comparable
employee’s earnings from March 1 until October 30. Garraux
stated that this agreement was a compromise and would not be
prejudicial to the positions raised by either party. Garraux’s
statement describing the terms of the settlement is followed in
the transcript by Jensen’s statement that Garraux’s recitation
was “completely accurate.” The hearing then ended without any
further discussion. That same day, the parties arbitrated the

7 The parties’ collective-bargaining agreement would support such a
belief on Jensen’s part. Under Sec. 8(C), “[s]hould any initial suspen-
sion, or affirmation, modification, or extension thereof, or discharge be
revoked by the Company, the Company shall reinstate and compensate
the employee affected.” Thus, the contract explicitly requires rein-
statement when the Respondent revokes a discharge.
8 The Respondent’s counsel mistakenly argued that the compliance
hearing related to the “settlement” of the grievance over the June 4
pager discharge. It is clear from the caption on the transcript of the
hearing that the parties were in fact arbitrating compliance with the
August 31 award.
grievance over Koontz’ November 3 discharge. As of October
6, 1999, Koontz had still not returned to work. Koontz testified
before me, without contradiction, that he did not receive any
backpay under the August 31 award until a few weeks before
the hearing in this case opened.
In support of his motion, the Respondent argues that the
Board’s policy is to defer to grievance settlements when they
meet the standards that the Board has established in Spielberg,
supra, and Olin, supra, for deferral to an arbitration award.
Under this test, the Board will defer to a prearbitration griev-
ance settlement where it was reached under the terms of the
contractual grievance procedure, the procedure was “fair and
regular,” all parties have agreed to be bound by the settlement,
and the results of the settlement were not “clearly repugnant to
the principles and policies of the Act.” As the Board has de-
fined the last criteria, a grievance settlement is not “clearly
repugnant” unless it is “palpably wrong as a matter of law.”
Alpha Beta Co., 273 NLRB 1546 (1985), affd. sub nom. Mahon
v. NLRB, 808 F.2d 1342 (9th Cir. 1987). The Board also re-
quires that the parties have “considered the unfair labor practice
issue” in settling the grievance, i.e., that the contractual issue
and the unfair labor practice issue are factually parallel and the
parties were generally aware of the facts relevant to resolving
the unfair labor practice issue. Postal Service, 300 NLRB 196
(1990).
Initially, I find that there was no “settlement” of Koontz’
grievance over the June 4 discharge at issue here. There is no
dispute that Garraux did not disclose to the Union, on October
27, 1998, the Respondent’s intention not to reinstate Koontz as
part of its offer to rescind his discharge. It is also undisputed
that Jensen, the Union’s representative, believed that reinstate-
ment was at least implicit in Garraux’s offer. Such a belief was
reasonable in light of the explicit language in the parties’ con-
tract quoted at footnote 8 above. Garraux admitted being aware
that Jensen interpreted his offer as including reinstatement. It is
clear from this testimony that the parties attached two very
different meanings to the language used in the agreement. Un-
der these circumstances, the “meeting of the minds” required
for the formation of an agreement was absent. See Intermoun-
tain Rural Electric Assn., 309 NLRB 1189, 1192 (1992); How-
ard Electrical & Mechanical, 293 NLRB 472, 489–491 (1989).
Cf. Monterey/Santa Cruz Building Trades Council (National
Refractories), 299 NLRB 251, 256–257 (1990).
The parties’ resolution of the compliance grievance a year
later also did not create an agreement that resolved the issues
surrounding Koontz’ June 4 discharge. The question of his
reinstatement was still unresolved. By that point in time, it was
clear that the Union had not accepted the terms that were actu-
ally offered by Garraux a year earlier, i.e., revocation of the
discharge without reinstatement. In fact, the Union had grieved
Koontz latest discharge almost immediately and pursued it to
arbitration with the arbitration hearing taking place the very day
the parties “settled” the backpay issues related to the June 4
discharge. Under the these circumstances, there was no “set-
tlement” under which all parties had agreed to be bound that
resolved either the grievance or the unfair labor practice. See
Spann Maintenance Co., 289 NLRB 915 (1988).
U.S. STEEL 159
Even were I to find that a settlement agreement was reached
in October 1998 or October 1999, deferral would not be appro-
priate because the settlement did not satisfy the Board’s stan-
dards cited above. Any “agreement” by the Union to forego
arbitration of its grievance over Koontz’ June 4 discharge was
fraudulently induced. When Garraux offered to rescind the
discharge, he knew that the Respondent had no intention of
reinstating Koontz. At the same time, Garraux also knew that
the Union would interpret his offer as including reinstatement
even if he did not use the word. Nevertheless, he said nothing
that would have put the Union on notice that his offer meant
something different than the contract and the parties’ practice
would indicate. Garraux’s failure to disclose the Respondent’s
plans to Jensen was not merely an oversight. It was a calculated
strategy to achieve the Respondent’s goal of issuing a termina-
tion that would “stick” before an arbitrator. There is no ques-
tion, based on the evidence in the record before me, that the
Union would never have agreed to settle Koontz’ June 4 dis-
charge without reinstatement. On the contrary, a year later the
Union was still pursuing reinstatement for Koontz, arguing
before the arbitrator that the Respondent’s immediate termina-
tion of Koontz upon rescission of the June 4 discharge was
evidence of its discriminatory motivation. Where one party
induces the other to settle a grievance by failing to disclose a
material fact, as was the case here, the proceedings cannot be
said to have been “fair and regular.” Moreover, because the Act
encourages good faith and honesty in dealings between the
parties to a collective-bargaining relationship, the putative
grievance settlement here is “clearly repugnant” to the princi-
ples and policies of the Act.
The putative settlement of Koontz’ June 4 discharge also
fails to meet the Board’s standards for approval of non-Board
resolutions of unfair labor practice charges. See Independent
Stave Co., 287 NLRB 740 (1987).9 The Board evaluates such
settlements in light of all factors present in a case to determine
whether “it will effectuate the purposes and policies of the Act
to give effect to the settlement.” Id. at 743. One of the factors
the Board considers is whether there has been any “fraud, coer-
cion, or duress by any of the parties in reaching the settlement.”
I have already found that Garraux’s behavior fraudulently in-
duced the Union to agree to a settlement that it would not have
agreed to were all the facts known. Approval of any non-Board
resolution of Koontz’ June 4 discharge allegation would clearly
not effectuate the purposes and policies of the Act.
The Respondent also argues for dismissal of the allegations
regarding Koontz on the basis that they are moot. Although
there may no longer be any issue as to the reinstatement of
Koontz based on the subsequent arbitration award upholding
his November 3 discharge, and although all backpay issues
affecting Koontz have been or could be resolved through the
arbitration process, these issues only go toward the remedy that
might be available in the event an unfair labor practice were

9 The Independent Stave test applies to a much broader category of
“settlements,” covering any voluntary resolution of unfair labor prac-
tice allegations reached outside the Board’s processes, without regard
to whether it occurred in the context of a contractual griev-
ance/arbitration proceeding.
found. The real issue here, which remains alive notwithstanding
subsequent events, is whether the Respondent terminated
Koontz and Zuczek on June 4 in violation of the Act. This issue
goes beyond the individual interests of Koontz and the Respon-
dent and concerns the public interest as expressed in the Act,
i.e., protecting the right of employees to engage in those activi-
ties enumerated in Section 7. The Respondent’s conduct in
rescinding the June 4 discharge and terminating Koontz again
hardly amounts to a disavowal or repudiation of any allegedly
unlawful conduct. See Sam’s Club, 322 NLRB 8 (1996), enfd.
141 F.3d 653 (6th Cir. 1998).
Accordingly, for the above reasons, I shall deny the Respon-
dent’s motion to sever and dismiss the allegations relating to
Koontz and shall decide his case as well as Zuczek’s on the
merits. On the entire record, as corrected above, and after con-
sidering the briefs filed by the General Counsel and the Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, operates a facility in Fairless
Hills, Pennsylvania (the Fairless Works), where sheet and tin
steel are processed and finished. The Respondent annually pur-
chases and receives goods valued in excess of $50,000 directly
from points outside the Commonwealth of Pennsylvania. The
Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background
The Union has represented a unit of the Respondent’s sala-
ried clerical and technical employees at the Fairless Works for
many years.10 The relevant collective-bargaining agreement
covering this unit (referred to as the Basic Labor Agreement or
BLA) was effective for the period February 1, 1994, to August
1, 1999. At the time of the alleged unfair labor practices, the
discriminatees, Koontz and Zuczek, had each been employed
by the Respondent at the Fairless Works for about 30 years.
They were members of the Union and had held various union
offices for 20 years. During the period relevant to these pro-
ceedings, both worked in the accounting department with
Koontz serving as the Union’s grievance committeeman and
Zuczek serving as the chairman of the Union’s grievance com-
mittee. They had held these positions for approximately 10
years. Koontz and Zuczek spent approximately 50 percent of
their time on union business. There is no dispute that Koontz
and Zuczek had clean disciplinary records until October 1997.
In the spring of 1996, a female unit employee in the account-
ing department approached Koontz, in his role as grievance
person, with a complaint of inappropriate conduct by a depart-
ment manager. The reported conduct could reasonably be per-
10 Another local of the International Union, Local 4889, has repre-
sented the much larger unit of production and maintenance workers at
this facility for as many years.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 160
ceived to be a form of sexual harassment. Koontz relayed the
employee’s concerns to Zuczek, in his role as chairman of the
grievance committee. Koontz and Zuczek then met with Robert
Kennedy, the Respondent’s manager of employee relations at
the Fairless Works, on or about May 14, 1996. The employee
who reported the conduct was also present. In addition to Ken-
nedy, the Respondent was represented at this meeting by Wil-
liam McBunch, senior personnel analyst whose responsibilities
included cochairing the parties’ joint civil rights committee, and
Louis Schack, who supervised the manager whose conduct was
at issue. After hearing the employee’s complaint, Kennedy in-
structed McBunch to speak to the manager and report back to
Kennedy. Kennedy advised Koontz, Zuczek and the employee
that he would advise them of the results of McBunch’s investi-
gation.11
The parties met again within a few weeks, after McBunch
had spoken to the manager about the employee’s complaint. In
the meantime, another female employee in the unit raised simi-
lar complaints about the same manager to Koontz and Zuczek.
At this second meeting, McBunch reported to the Union and the
complaining employees that the manager had denied engaging
in any inappropriate conduct. McBunch informed Koontz, Zuc-
zek and the employees that he had instructed the manager to
cease locking his office door when meeting with employees and
had reminded the manager of the Respondent’s zero tolerance
policy toward sexual harassment. In response to this report,
Koontz and Zuczek expressed the feeling that the manager
should receive some form of discipline for his conduct.
McBunch replied that the Respondent did not believe that any
discipline was warranted. Either Kennedy or McBunch told
Koontz and Zuczek that, due to a previously planned reorgani-
zation of the department, the manager would shortly be moving
out of the office where the complaining employees worked and
into another building. He would no longer have any supervisory
authority over these employees. Koontz, Zuczek, and the em-
ployees were told that this should prevent such problems from
arising again. According to Koontz, the Union did not pursue
the matter at that time because the employees who had com-
plained did not wish to pursue it after this meeting.12

11 At the hearing, I granted the General Counsel’s request, under
Bannon Mills, 146 NLRB 611 (1964), to preclude McBunch from
testifying about his investigation because of the Respondent’s failure to
furnish the General Counsel, pursuant to subpoena, with documents
showing the results of McBunch’s investigation of the Union’s sexual
harassment complaints. The Respondent, in its brief, asks that I recon-
sider my ruling because any failure to furnish McBunch’s notes was
inadvertent. I see no reason to reverse my ruling. In any event,
McBunch’s testimony regarding his investigation is immaterial to the
allegations at issue in this proceeding. The issue I must resolve is
whether Koontz and Zuczek were engaging in statutorily protected
activity when they raised the complaints with the Respondent and
whether that activity motivated the Respondent’s actions against them.
Resolution of this issue does not depend on the merits of the em-
ployee’s sexual harassment complaint or the adequacy of the Respon-
dent’s investigation of those complaints.
12 This recitation is based on a compilation of the testimony of
Koontz, Zuczek, Kennedy, and McBunch. The other participants at the
meetings did not testify. Any discrepancies in the testimony among the
Zuczek testified that, in May or June 1996, shortly after
these meetings, the manager who had been the subject of the
complaints came to Zuczek’s office and told him that he would
fire Zuczek and Koontz for the trouble they had caused him. At
the time, this manager supervised Zuczek’s immediate supervi-
sor. Zuczek reported this threat to Koontz but did not otherwise
pursue the matter. As pointed out by the Respondent, this reti-
cence was out of character for Koontz and Zuczek who often
filed grievances and unfair labor practice charges over per-
ceived harassment and discrimination based on their union
activities. Nor did Zuczek or Koontz make any notes docu-
menting this alleged threat, conduct which also contrasts with
their behavior on other occasions when they were threatened by
the Respondent’s supervisors. The manager, who testified as a
witness for the Respondent, denied making such a threat. Coun-
sel for the General Counsel stated that the threat was not al-
leged as an independent violation of the Act because it occurred
more than 6 months before the charge was filed.
Having considered the testimony and the above factors, I
cannot credit Zuczek’s testimony regarding this threat. Al-
though I found Zuczek generally a believable witness, this par-
ticular portion of his testimony, which is totally uncorroborated
and extremely self-serving, defies belief. Based on all the other
evidence before me, I simply cannot believe that Zuczek would
essentially have kept such a bald threat to himself all these
years, sharing it only with Koontz. In any event, there is no
evidence that this particular manager was involved in the deci-
sion to terminate Zuczek on June 4. Any threat he may have
made to Zuczek 2 years earlier would seem immaterial, if not
irrelevant, to the issues here.
The undisputed evidence in the record indicates that the ac-
cused manager was relocated out of the area by June 1996 and
replaced by a new manager, Robert Walck. Walck also took
over supervision of Zuczek’s immediate supervisor, William
Winslade. The former manager, who had been the subject of the
employees’ complaints, trained Walck. The record contains a
substantial amount of evidence regarding a training program on
which Walck placed Zuczek beginning in August 1996. Zuczek
had been in his current position, accounts payable control clerk,
since the beginning of the year. Before the sexual harassment
issue came up, he had filed grievances and unfair labor practice
charges complaining that he was being denied training in this
new job because of his position as chairman of the grievance
committee. There is no dispute that the particular training pro-
gram imposed on Zuczek was unprecedented in nature. At the
conclusion of the 3-month training program, in November 1996,
Walck removed Zuczek from his position, claiming that he had
failed to adequately learn the job. Zuczek filed a grievance over
this action, asserting that his removal was motivated by his ef-
forts on behalf of the employees who had complained of sexual
harassment. Walck testified that he had no knowledge of any
such complaints before seeing the grievance at the first-step
meeting on November 20, 1996. However, Walck acknowl-
edged consulting with, and receiving advice regarding the de-
sign of the training program and Zuczek’s performance under it,

various witnesses do not affect credibility and are reasonable in light of
the passage of time between the meeting and the hearing.
U.S. STEEL 161
from other management officials, including Schack, who were
aware of the sexual harassment complaints. The complaint does
not allege that Zuczek’s removal from his position was an unfair
labor practice and the grievance he filed was apparently settled
in 1997 in a package deal. The General Counsel relies on this
incident as background evidence of animus toward Zuczek’s
protected activities. I find it unnecessary to resolve all the fac-
tual and credibility issues surrounding Zuczek’s removal from
the accounts payable position. There is ample other evidence of
animus closer in time to the termination at issue here.
In the fall of 1996, the two employees who had complained in
the spring about inappropriate conduct by their manager again
approached Koontz with concerns about the same manager.
Although he was no longer assigned to their department, he was
still spending time there and communicating with them by tele-
phone during the month-end closings. They complained that this
continued contact made them uncomfortable. After attempts to
resolve the issue informally within the department were unsuc-
cessful, Koontz, on December 23, 1996, filed the first formal
grievance on behalf of one of the employees. The grievance
referred to the earlier complaints and their “resolution” and al-
leged that the Respondent was not complying with the agree-
ment reached in the spring to remove the manager from the
office. After the grievance was filed and denied at step one,
Koontz and the grievant were asked to attend a meeting with
Preston Henderson, the Respondent’s department manager-labor
relations and personnel, and Carl Csensich, another accounting
department manager. This meeting occurred on January 3, 1997.
According to Koontz, Henderson and Csensich questioned the
employee about her motives in making the complaints and the
specific conduct she believed was inappropriate. Koontz testi-
fied that this questioning upset the employee, causing her to cry.
Koontz ended the meeting and reported what occurred to Zuc-
zek. When Koontz and Zuczek complained to Kennedy, Ken-
nedy replied that Henderson had a different reading of the meet-
ing and felt that the grievant was satisfied. Koontz then drafted
a letter, which was sent to Kennedy under Zuczek’s signature on
January 10, 1997, describing the meeting and expressing the
employee’s concern that her complaints were not being taken
seriously. The letter ended by stating the Union’s desire to re-
solve the matter “in house” and requested a meeting with Ken-
nedy to discuss the grievant’s concerns.13 Koontz and Zuczek
met with Kennedy on January 15, 1997. McBunch was also
present. Koontz and Zuczek reiterated their belief that the Re-
spondent had reneged on an agreement to keep the manager
away from the employees who had complained about his con-
duct. Kennedy denied making any such commitment. Kennedy
then accused Koontz of inciting the two female employees to
make these complaints because of a personal vendetta he had
against the manager in question. Koontz denied this and filed his
own grievance protesting this accusation.14

13 Neither Henderson nor Csensich testified about the January 3
meeting. Surprisingly, Henderson denied having any involvement in
dealing with the sexual harassment complaints in 1996–1997. The
January 10 letter sent to Kennedy under Zuczek’s signature clearly
refers to Henderson’s involvement in the January 3 meeting.
14 The Respondent made the same accusation in the response it filed
to a Finding of Probable Cause by the Pennsylvania Human Relations
On January 16 or 17, 1997, the two female employees asked
Koontz and Zuczek to accompany them to Philadelphia to file
EEOC charges against the Respondent. After Koontz and Zuc-
zek informed their supervisors that they and the two female
employees would be taking the next day off for union business,
Kennedy asked to meet with them. Koontz and Zuczek started
the meeting with Kennedy in Kennedy’s office. Zuczek told
Kennedy that the two women were prepared to file EEOC
charges regarding the manager’s conduct, as well as a claim that
the Respondent had created a hostile work environment. Zuczek
also told Kennedy that a third female employee had come for-
ward with similar complaints about the same supervisor. Zuczek
told Kennedy that the women felt they had no choice but to file
EEOC charges because nothing had been done despite the pre-
vious meetings and grievances they had filed. Kennedy sug-
gested they adjourn the meeting to a local tavern, the Bridge
Café, to see if they could come to some resolution that would
prevent the filing of EEOC charges. At the tavern, Kennedy
proposed having an independent person come to the plant from
Pittsburgh to conduct an investigation into the complaints. The
Union agreed and arranged for a meeting the next day between
Kennedy and the grievants. The next day, Kennedy met with
Koontz, Zuczek and the two women. He asked the women if
they had retained legal counsel and they told him they had. Ken-
nedy then made his proposal for an independent investigation of
their complaints. The two women agreed to this proposal and
did not go to Philadelphia that day.
Thomas Lauritzen, the Respondent’s manager—equal em-
ployment opportunity, whose office is at the Respondent’s
Pittsburgh headquarters, came to the plant on January 21, 1997,
to conduct the investigation. His investigation lasted 3 days.
During the investigation, he interviewed the two women who
initially complained about the accounting department man-
ager’s conduct as well as other women in the department.
Koontz, Zuczek, and two other union representatives, Local
5092 President Dan Rooney and Carol Murphy, the Union’s co-
chair of the joint civil rights committee, participated in the in-
vestigation. It was Murphy who selected the women to be in-
terviewed. She also was present at all of Lauritzen’s interviews
with employees. Rooney, Koontz, and Zuczek attended some,
but not all, of these interviews. Lauritzen also interviewed the
manager who was the subject of the complaints, but he would
not permit any union representatives to be present for this in-
terview. Nor did Lauritzen permit the Union to interview the
manager on its own. At the conclusion of his investigation,
Lauritzen reported to Kennedy, on or about January 28, 1997,

Commission (PHRC) on charges filed by the two female employees. In
that forum, the Respondent took the position that the case before the
PHRC was
a thinly disguised attempt by several employees to degrade a supervi-
sor. . . . [The supervisor], prior to the incidents complained of here,
had to make a number of personnel cutbacks in the Accounting De-
partment, related to a major permanent shutdown of an entire operat-
ing portion of the Works. This was distasteful to a number of employ-
ees and particularly upsetting to union representatives in the local un-
ion which represented the salaried steelworkers. This case and the
companion case . . . are retaliation for those cutbacks previously made
by [the supervisor].
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 162
that no sexual harassment had occurred. He did not prepare a
written report. Lauritzen testified that he instructed Kennedy,
before returning to Pittsburgh, to remind the managers at the
plant that there must be no retaliation against anyone for bring-
ing these complaints.
Lauritzen’s investigation did not put an end to the issue.
Koontz and Zuczek continued to file grievances on behalf of
the two female employees who had initially raised the issue in
the spring. These new grievances, filed on February 6, 7, and
19, 1997, alleged that the continuing presence of the manger in
the department where these employees worked and his contacts
with them were creating a hostile work environment. In the
grievances, Koontz and Zuczek reiterated their position that the
Respondent had agreed in the spring 1996 that this manager
would be removed from the department and would have no
further contact with the employees. Koontz and Zuczek also
challenged the adequacy of the Respondent’s investigation of
the employees’ complaints. One of the grievances also com-
plained of a newspaper clipping, which was critical of women
who accuse men of sexual harassment, that the employees
found posted in the department shortly after Lauritzen con-
ducted his investigation. The Respondent denied each of these
grievances, asserting that their had never been any agreement
as described by Koontz and Zuczek and that the Respondent
had investigated and remedied all of the complaints made by
the grievants.
The record does not disclose whether the Union pursued
these grievances beyond step two, which is the last step handled
by either Koontz or Zuczek. The two female employees did
eventually file a discrimination complaint with the EEOC and
the PHRC. By coincidence, in February 1997, the employee
who was the lead grievant was demoted from her position in the
accounting department to an entry-level clerk’s position in the
production mill. She was returned to her position in April 1997
as part of a settlement of a number of grievances negotiated
between Zuczek and Kennedy. It is undisputed that, as part of
this settlement, Zuczek withdrew his grievance and unfair labor
practice charge over his removal from the accounts payable
position in November 1996. There is a conflict in the testimony
whether Kennedy asked Zuczek to withdraw his grievance and
charge as a condition to the settlement or whether Zuczek of-
fered to do so to induce Kennedy to settle the other grievances.
I find it unnecessary to resolve this conflict. The accounting
manager who was the subject of the employees’ complaints
ultimately left the Fairless Works when he was offered the
position of controller at the Respondent’s Wilmington, Dela-
ware facility. He testified that, while he did not officially as-
sume his new position until May 1, 1997, he spent most of his
time out of the Fairless facility beginning in February or March
1997.
Lauritzen’s investigation and Koontz’ and Zuczek’s griev-
ance activity over the alleged sexual harassment coincided with
the arrival at the Fairless Works of a new manager in the ac-
counting department, John Pentin. Pentin had been working at
the Respondent’s Pittsburgh headquarters as an auditing super-
visor. At the Fairless Works, he was responsible for all of the
accounting operations, including the departments in which
Koontz and Zuczek worked. Koontz and Zuczek were two lev-
els below Pentin in the Respondent’s hierarchy.15 Pentin ac-
knowledged being aware of the sexual harassment issues in his
department soon after arriving because Lauritzen was conduct-
ing his investigation at that time. Pentin also acknowledged
speaking to the accused manager, who was under his supervi-
sion, about the accusations and being aware of Koontz’ and
Zuczek’s role in filing and pursuing the grievances over this
issue.
Sometime in February or March 1997, Pentin and McBunch
met with Koontz and Zuczek at Pentin’s request. According to
Pentin, the purpose of this meeting was to introduce himself to
the union representatives for his area, tell them what his charge
was in coming to the department and get some feedback from
them as to what they thought should be done. Pentin told
Koontz and Zuczek that his charge was to be a “change agent,”
to improve the performance of the facility and its standing in
the eyes of headquarters. Pentin testified that, in response,
Koontz and Zuczek, rather than addressing any issues in the
department, “jumped on the membership,” calling them deroga-
tory names, which will not be repeated here, that are generally
associated with women. According to Pentin, after the second
time they used such language, Pentin told them that he would
appreciate it if they would not refer to their members in such
manner. McBunch corroborated Pentin for the most part.
McBunch recalled that Koontz and Zuczek derogatory refer-
ences to female employees came after they had expressed their
frustration over a number of grievances from the department,
including personal grievances filed by Koontz, that had been
pending for awhile. According to McBunch, the derogatory
names were used to refer to administrative employees in the
department, including nonunit nonexempt employees. Koontz
and Zuczek adamantly denied ever using such language to refer
to any female employee, unit or nonunit. I tend to believe them
because, based on their demeanor on the witness stand and their
zealous pursuit of the harassment complaints on the part of
women in the department, the language attributed to them by
the Respondent’s witnesses is out of character. Moreover, I was
not particularly impressed by the demeanor of Pentin or
McBunch. As will be shown, Pentin was not averse to using
profanities to refer to unit employees himself. Thus, his appar-
ent offense at Koontz’ and Zuczek’s use of profanity is hard to
believe. In any event, it is clear that Pentin would be on notice
from this meeting, if he didn’t already know based on their
pursuit of the sexual harassment grievances, that Koontz and
Zuczek were not likely to shirk their responsibilities as union
representatives in the face of changes in the department and
would be aggressive in enforcing contractual rights.
Pentin’s next encounter with Koontz and Zuczek was in May
1997, just before the start of a physical inventory that the facil-
ity is required to perform on an annual basis. This was the first
such inventory that Pentin had presided over at the Fairless
Works. Koontz and Zuczek testified that a few unit employees

15 Koontz’ and Zuczek’s immediate supervisor until the summer
1997, William Winslade, did not testify. Winslade resigned his em-
ployment with the Respondent in the summer of 1997. Walck testified
that no one replaced Winslade. Walck himself was replaced by Mark
Clair in January 1998.
U.S. STEEL 163
approached them after the Respondent had posted a schedule
for the inventory. These employees complained that the sched-
ule showed that the Respondent had assigned nonunit employ-
ees and managers to perform the inventory without first asking
unit employees if they wanted it. The employees also com-
plained that these nonunit employees were assigned to the pre-
ferred shifts. According to Koontz and Zuczek, the practice had
been that inventory work was offered first to unit employees in
the accounting department, then to the rest of the unit and, only
if not enough unit employees volunteered, to nonunit employ-
ees and managers. Koontz and Zuczek raised these complaints
with their immediate supervisor, Winslade and his supervisor
Walck on May 30, 1997. At a meeting in Winslade’s office at
about 1:30 that afternoon, it was agreed that Zuczek and
Koontz would be added to the inventory schedule and would
work one of the preferred assignments instead of Joan Nemeth,
a nonunit nonexempt employee and Ray Karl, a supervisor.
Nemeth had been the subject of several complaints before this
incident that she was doing unit work. It is undisputed that
Koontz and Zuczek had pursued a number of grievances, fol-
lowing a reorganization in the accounting department in 1996
that resulted in the layoff of unit employees, over the issue of
the Respondent reassigning unit work to nonunit employees.16
Sometime during the afternoon on May 30, Zuczek was
called by Winslade and told that Pentin wanted to meet with
him and Koontz about the inventory. Koontz, Zuczek,
Winslade, Walck, and Pentin attended this meeting. All but
Winslade testified. The witnesses had varying degrees of recall
and, as to be expected, their recollection was colored by their
individual points of reference. It is not necessary to resolve all
the minutiae of who said what and why because the witnesses
agree in general terms about what transpired at the meeting.
Koontz explained the Union’s objections to the inventory
schedule that had been posted. Pentin said that he had assigned
nonunit employees to do the inventory because he wanted it
done right. Koontz asked if Pentin was calling the unit employ-
ees “stupid.” Pentin denied this and complained that Koontz
and Zuczek tried to throw a “monkey wrench” every time he
tried to do something at the plant. Pentin also accused Zuczek
of always “picking on” Nemeth, intimidating and harassing her,
and stated his belief that this is what motivated the Union’s
complaint about the inventory assignments. At one point in the
meeting, according to Koontz and Zuczek, Pentin told Zuczek,
“[T]wo can play this game, you’re not immune to losing your
job.” According to Pentin, he said, “[N]o employees are im-
mune from the rules, from complaints from other employees,
and the potential consequences.” There is no dispute that the
conversation became heated, with both sides raising their
voices and profanity being heard. Pentin conceded that he
raised his voice and used profanities himself during the meet-
ing. At one point during this heated exchange, Koontz got up
from his seat next to Pentin and moved toward the door. There

16 One of these grievances involved a claim by Koontz and Zuczek
that Nemeth was doing the work of the employee who had initiated the
sexual harassment complaints and had been demoted in February 1997.
As previously noted, that grievance was settled in April with the em-
ployee being returned to her job.
is no dispute that Pentin touched Koontz in some fashion and
called him a “m— f—.” It is not clear from the testimony of the
witnesses what precisely precipitated this reaction by Pentin.
Neither Pentin nor Walck, who testified for the Respondent,
described any kind of threatening or abusive conduct on
Koontz’ part that would have justified Pentin’s reaction. What
is clear from Pentin’s own testimony, as well as Walck’s, is that
Pentin was angry at Koontz at least in part because of what
Pentin believed was an attempt to interfere with the conduct of
the inventory.17 After this meeting, Zuczek and Koontz com-
plained to Kennedy about Pentin’s conduct. At a meeting that
same afternoon, they asked Kennedy to look into the matter and
take action against Pentin. When Koontz said that he would be
fired if he did the same thing to one of Kennedy’s managers,
Kennedy replied, “[Y]es you would.”
Zuczek testified that, on May 31, 1997, the day after these
meetings, Pentin called him outside of the building to speak to
him. No one else was present. According to Zuczek, Pentin told
him if they (Koontz and Zuczek) pursued the incident any fur-
ther and put a black mark on his record, he would fire both of
them. Pentin denied making any such threat. Zuczek did not file
a grievance over this alleged threat, but he did document it in
notes he prepared in June 1997, shortly after the incident. Al-
though this alleged threat is similar to the one Zuczek attributed
to the former manager accused of sexual harassment, testimony
which I discredited above, I find his testimony as to Pentin’s
threat credible.18 Although Zuczek did not file a grievance, he
did request that Carol Murphy, the Union’s cochair on the Civil
Rights Committee, write to the Respondent’s cochair and re-
quest an impartial investigation into Pentin’s accusations that
Zuczek had harassed and intimidated Nemeth. Murphy wrote
such a letter on June 2, protesting the accusations against Zuc-
zek and requesting an investigation. Zuczek’s conduct in initiat-
ing this letter is consistent with Zuczek being concerned about
his job tenure in the face of threats made by Pentin at the meet-
ing on May 30 and in the conversation on May 31. Moreover, I
generally found Zuczek’s demeanor more credible than that of
Pentin. In light of the degree of anger Pentin admittedly had
toward Koontz and Zuczek after they threw a “monkey
wrench” into his carefully laid out plans for the inventory, I
find it quite believable that he would have threatened Zuczek
upon learning that Zuczek and Koontz had asked Kennedy to
do something about Pentin’s behavior at the meeting.
In October 1997, Koontz and Zuczek received their first dis-
cipline, a 5-day suspension for being “absent from work with-
out permission.” The Respondent issued the disciplinary no-
tices on October 20, 1997, after Koontz and Zuczek failed to
attend a mandatory meeting that Pentin had scheduled for Oc-
17 Pentin and Walck testified that they were angry about the dis-
criminatees’ complaints because they were told by Winslade that
Koontz and Zuczek had been offered and declined the opportunity to
work the inventory before the schedule was posted. This hearsay testi-
mony was not received for the truth. As previously noted, Winslade did
not testify. Koontz and Zuczek credibly denied that they had been
offered an opportunity to work the inventory before raising their com-
plaints.
18 It is axiomatic that a witness may be believed as to some but not
all of his testimony. See Farmer Bros. Co., 303 NLRB 638, 649 (1991).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 164
tober 16, 1997. Instead of attending the meeting, Koontz and
Zuczek had called out on union business. Under the parties’
collective-bargaining agreement, appendix D-2, an employee
who receives a suspension like that imposed on Koontz and
Zuczek can remain at work pending resolution of any complaint
or grievance filed over the suspension. Here, Koontz and Zuc-
zek requested a hearing under section 8-B of the contract.19 The
8-B hearings for Koontz and Zuczek were held consecutively.
They began on October 31 and were continued on November
11, 1997. After the November 11 hearing, the Respondent af-
firmed the suspensions and the Union filed grievances and un-
fair labor practice charges on behalf of the alleged discrimina-
tees. An arbitrator heard the grievances on May 5 and issued
his decision on July 7, sustaining the grievances.20 In reaching
this conclusion, the arbitrator found that Koontz and Zuczek
appeared to have “misuse[d] their positions as union officials in
a manipulative manner to miss the October 16 meeting.” He
nevertheless sustained the grievance on the basis that the griev-
ants’ actions involved “an isolated act of misconduct” which
did not warrant the Respondent’s disregard for progressive
discipline, given their clean disciplinary records and lengths of
service. He thus concluded that the 5-day suspensions imposed
on Koontz and Zuczek lacked proper cause under the terms of
the contract.
As previously noted, the Board’s Regional Director deferred
the unfair labor practice charges filed over the suspensions to
this arbitration award. Despite this deferral, both parties pre-
sented a considerable amount of evidence regarding the merits
of the suspensions. Much of the evidence presented at the in-
stant hearing was also presented to the arbitrator. The only
witness who testified before the arbitrator that did not appear
before me was the Union’s International representative, Lewis
Dopson. The arbitrator made detailed factual findings, includ-
ing credibility resolutions, and reached a result that appears to
be reasonably based on the evidence before him. Based on the
evidence in the record before me, including my observation of
the demeanor of the witnesses I observed who had also testified
before the arbitrator, I see no reason to disturb his findings and
shall accept them for purposes of determining the merits of the
unfair labor practice allegation before me. See Atlantic Steel
Co., 245 NLRB 814 (1979).
As found by the arbitrator, Koontz and Zuczek were notified
in writing and by oral communication of the mandatory nature

19 Under sec. 8-B of the contract, an employee who receives notice
of a suspension of 5 days or more, or a suspension pending discharge,
may request a hearing at which the Respondent presents the facts con-
cerning the discipline and the employee may present his case against
being disciplined. In most cases, the discipline is not effectuated until
such a hearing is held. At the conclusion of the 8-B hearing, the Re-
spondent may affirm, modify or rescind the suspension, or convert it to
a discharge.
20 Under the parties’ collective-bargaining agreement, grievances are
resolved by a permanent noard of arbitration presided over by a chair-
man who is responsible for issuing arbitration decisions. At all relevant
times, Shyam Das was the chairman of that arbitration board. The
grievances over Koontz’ and Zuczek’s suspensions were heard by
Arbitrator Keith Neyland whose findings and recommended award
were approved by Das.
of the October 16 meeting. This notification explicitly advised
them that they had to obtain permission from Pentin to be ex-
cused from the meeting. Neither did so. Instead, on the day of
the meeting, both notified their immediate supervisor, via voice
mail, that they would be out on union business. It was admitted
before the arbitrator, and not disputed here, that this was an
acceptable procedure to follow when union officers needed to
take time for union business.21 It was also conceded that the
Respondent had never before required any union representative
to justify or explain the need to conduct union business at a
particular time. Upon learning that Koontz and Zuczek had
called out, Henderson and Pentin telephoned them at the union
office and told them that they were expected to attend the meet-
ing. Henderson testified before the arbitrator that Zuczek said
during this conversation that the Respondent’s meeting inter-
fered with union business. Henderson also testified that Zuczek
specifically asked what would happen if he and Koontz did not
attend the meeting and that he said only that discipline “was
possible.”22 The evidence considered by the arbitrator also
showed that Koontz and Zuczek had been absent on union busi-
ness with some degree of frequency, a fact noted by the Re-
spondent’s witnesses. Nevertheless, they had never before been
disciplined for being absent without permission and the Respon-
dent acknowledged that they did not have an attendance prob-
lem. The arbitrator also noted Kennedy’s testimony that the
Respondent’s managers expected Koontz and Zuczek to try to
find an excuse to avoid attending the meeting. The arbitrator
concluded that Koontz and Zuczek, relying on the accepted
practice of reporting off on union business without question,
“sought to take a stand with management by purposefully re-
porting off for union business solely to miss the October 16
meeting.” He found that, by doing so, they were indeed guilty of
being absent without permission. However, he also found that
this misconduct was isolated in view of their clean record and
length of service and did not amount to “incorrigible behavior”
that would warrant the Respondent’s disregard of progressive
discipline.23 As will be discussed in more detail in my analysis,
the Respondent’s disregard of progressive discipline for a first
offense of this nature suggest that “something more” than their
being absent without permission was motivating the Respondent
in taking the action it did.
There is no dispute that, at the 8-B hearing on November 11,
1997, Zuczek and Pentin locked horns in another verbal con-
frontation. During this meeting, Zuczek called Pentin a “m—
f—.” The witnesses who were at the meeting do not agree re-
garding what preceded Zuczek’s use of profanity. All the wit-
nesses do agree that Zuczek was aggressively presenting the
21 Koontz and Zuczek were not compensated by the Respondent for
their time out on union business.
22 Henderson testified in the hearing before me that he did not an-
swer when Zuczek asked him directly what would happen if they did
not come to the meeting. According to Henderson, he did not want to
commit himself to any action in light of Koontz’ and Zuczek’s posi-
tions as union officers.
23 There is evidence in the record before me, which shows that
Koontz and Zuczek were not the only employees to miss the “manda-
tory” meeting and that not all had received advance permission to be
absent. They were the only employees to receive discipline.
U.S. STEEL 165
union’s case that he and Koontz were being singled out because
of their union activities and that Pentin was interfering with
their conduct of union business. Koontz, Zuczek, and Union
President Rooney recall Zuczek cursed at Pentin only after
Pentin got out of his chair and pointed a finger at Zuczek. The
Respondent’s witnesses, Walck, Pentin and note taker Randall
Cook, who held the position of department manager of produc-
tivity improvement, conveniently left out of their testimony
what happened immediately before Zuczek’s outburst. When
specifically questioned about this, they feigned a lack of recall.
The notes taken by Cook show that the profanity followed a
series of questions by Zuczek on the subject of Pentin interfer-
ing with the conduct of union business. Pentin’s answers were
evasive. Cook’s transcription of Zuczek’s profanity specifically
references Pentin pointing his finger at Zuczek. To the extent
there is any conflict in the testimony regarding what happened
at this meeting, I credit the version provided by the General
Counsel’s witnesses. On November 14, 1997, Zuczek received
another 5-day suspension for using “profane abusive language
toward a supervisor” at the November 11 hearing. The Respon-
dent’s treatment of Zuczek contrasts with the lack of response
to the Union’s complaints about Pentin’s conduct at the May
1997 meeting described above. The Union grieved this suspen-
sion, but did not pursue it to arbitration. Although the com-
plaint does not allege that the November 14 suspension was
unlawful, the General Counsel relies upon it as further evidence
of antiunion animus.24
Koontz and Zuczek remained at work through November 11,
1997, the last day of Zuczek’s 8-B hearing. On November 12,
1997, Koontz and Zuczek called out of work, claiming stress.
There is no dispute that the meeting that occurred the previous
day, described above, was a very hostile and contentious one.
By the end of that meeting, it was clear that the Respondent
was going forward with its decision to suspend these two long-
term employees who had no prior discipline. On November 14,
1997, Koontz and Zuczek submitted notes from the same doc-
tor, Dr. Victor Nemerof, indicating that they were under his
care and would not be able to return to work until further no-
tice. Koontz and Zuczek were then placed on salary continu-
ance under the Respondent’s disability policy. On November
25, 1997, McBunch sent letters to each of them seeking addi-
tional medical information from their doctors. On December 2
and 6, 1997, respectively, Dr. Robert H. Brick, an associate of
Doctor Nemerof responded individually as to Koontz and Zuc-
zek. The letters are similar, but not identical, with some differ-
ence in the diagnosis, treatment, and prognosis as between the
two. On December 18, 1997, the Respondent notified Koontz
and Zuczek that it was terminating their salary continuance
effective December 9, 1997, and directing them to report to
work on December 22, 1997. By letter dated December 19,
1997, Dopson, the Union’s International representative, re-
quested that the Respondent delay the return to work date for
both men until December 26, 1997, to give them time to consult
with their doctors. The Respondent denied this request in a

24 The charges in this case were filed and served more than 6 months
after Zuczek received this suspension. Any allegation that the suspen-
sion violated the Act would now be barred by Sec. 10(b) of the Act.
letter to Dopson dated December 22, 1997. When Koontz and
Zuczek did not report to work on December 22, 1997, the Re-
spondent notified them the same day that it had suspended them
for 5 days subject to discharge. On December 29 and 31, 1997,
Dr. Brick sent letters to the Respondent stating that neither man
could return to work at that time or attend an 8-B hearing over
their suspensions because of their psychological condition. By
letters dated January 5, the Respondent notified Koontz and
Zuczek that “after reviewing all the facts in this case,” it had
decided to convert their suspensions to a discharge.25
The Union grieved these January 5 discharges. The griev-
ances were heard by an arbitrator on June 17. On August 31,
the arbitrator issued his award sustaining the grievances. The
arbitrator found that the grievants “presented evidence of dis-
ability which on its face cannot be rejected as unreasonable and
that the company has not established a convincing basis on
which to justify its rejection of that evidence so as to provide
proper cause for discharge in this case.” The arbitrator went on
to explain that the determination that the Respondent lacked
proper cause to discharge Koontz and Zuczek was based on “a
finding that at the time they were ordered to report to work they
satisfied the eligibility requirements for sick leave and salary
continuance set forth” in the contract. As a remedy, he ordered
the Respondent to reinstate Koontz and Zuczek without loss of
seniority and to remove the discipline from their records. More
specifically, the arbitrator ordered immediate reinstatement if
the grievants no longer claimed to be disabled. In the event that
they presented medical certification of continued disability, the
arbitrator permitted the Respondent to require an independent
medical examination to assess such certification. Although he
ordered a make-whole remedy, he left it to the parties to deter-
mine how this should be done. The Board’s Regional Director
deferred to this award as well.
As with the October 1997 suspension, the parties presented a
considerable amount of testimony regarding the merits of the
January discharge. Again, I shall defer to the findings of the
arbitrator who had the benefit of hearing the testimony of Dr.
Brick, as well as that of the Respondent’s plant doctor, Dr.
Pearcy. No new evidence was presented before me that would
cause me to second-guess the factual findings of the arbitrator
and his conclusions as to the contractual issues raised by the
Respondent’s discharge of Koontz and Zuczek. Any unfair
labor practice issue regarding the discharge is not before me
because the General Counsel has deferred to the arbitrator on
that issue. The following excerpt from the arbitrator’s award
sums up those findings that are most relevant to the issue I must
decide here:

There seems little doubt that from the beginning of
Grievants’ absence Management did not believe that either
of them was disabled. It concluded that they were engaged
in a charade and power play. That did not give Manage-
ment the right, however, to simply disregard the certifica-
tion of sickness and disability provided by Dr. Brick and
to order the grievants to report to work on penalty of dis-
charge, particularly since, if they were disabled, such a re-
25 The parties stipulated that these letters were erroneously dated
January 5, 1997. The actual date they were sent was in 1998.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 166
turn to work would not have been medically advisable.
The Company first needed to establish an objective basis
on which to reject Dr. Brick’s medical certification of dis-
ability.
Management asserts that it acted on the basis of the ob-
jective medical findings made by Dr. Pearcy, the plant phy-
sician. Dr. Pearcy was a credible witness. He acknowl-
edged, however, that he did not and could not make a
medical determination that Grievants were or were not dis-
abled. There were a number of questions that he believed
needed to be answered before he could make such a deter-
mination. Some of these questions related to Dr. Brick’s di-
agnosis of adjustment disorder. In particular, Dr. Pearcy
was concerned that possibly what was involved was anger
and an attempt on Grievants’ part to retaliate against Man-
agement for the discipline that had been issued to them. He
also had questions concerning Dr. Brick’s “guarded prog-
nosis”, based on his knowledge that generally the prognosis
for adjustment disorder is good. Dr. Pearcy’s efforts to pur-
sue these questions directly with Dr. Brick were not suc-
cessful, because Grievants refused to give their consent to
having Dr. Brick discuss the details of their psychiatric and
psychological problems and treatment with Dr. Pearcy. It
was for that reason that Dr. Pearcy recommended to man-
agement that an independent medical examination be con-
ducted by a mental health provider. Management chose not
to follow that recommendation.
In many circumstances, a refusal by employees to per-
mit their treating physician to discuss their case with the
plant physician, where the latter has legitimate questions
regarding the employee’s claim of disability, might be a
valid basis on which to reject that claim. The situation here
is different, however. Dr. Pearcy wanted to inquire about a
diagnosis of work-related adjustment disorder, where the
stressors involved interaction between Grievants and su-
pervision. Dr. Pearcy wanted to find out what the Grievants
had told Dr. Brick about that interaction and, as he put it,
wanted to give Dr. Brick “the other side of the story”, that
is Management’s side. Under these circumstances, it hardly
is surprising that Grievants would not consent to that sort
of dialogue between their mental health provider and the
Company’s physician, particularly since they reasonably
could be concerned that Dr. Pearcy, who they did not
know, might share that information with supervision. More
generally, employees may be reluctant to share the specif-
ics of their mental health treatment with a Company doctor
either directly or through discussion with their mental
health provider. Dr. Pearcy said he understood this, and, as
he testified,
I accept that, which is the reason why once I made an
attempt and was refused to get the consent I made the
recommendation that an independent medical evalua-
tion be done.
. . . .
On the present record, the Board is not persuaded by the
Company’s argument that “common sense” dictates a
finding that, notwithstanding Dr. Brick’s certifications,
Grievants were not disabled, but were engaged in a cha-
rade. It is clear from the record that Grievants and the
Manager of Accounting were involved in an escalating
work-place conflict. One of the Grievants had even gone
so far as to file a criminal complaint against that supervi-
sor in May 1997 based on what occurred at a meeting at
the plant. Both Grievants received a five-day suspension
in October for defiantly refusing to attend a mandatory
Accounting Department meeting. One of them then re-
ceived a second five-day suspension for using profane and
abusive language toward the Manager of Accounting at
the 8-B hearing on his first five-day suspension. These
were 29-year service employees who had held Local Un-
ion positions for many years and had no prior discipline
records. Clearly, something unusual was happening, and it
certainly does not defy common sense to credit the possi-
bility that each of them was suffering from considerable
stress and even had reached a point where he believed he
was about to get fired or was at risk of committing some
further act in the workplace that would lead to his being
fired. In these circumstances, even assuming that anger
was a factor, it is plausible that he would seek professional
assistance as his emotional and psychophysiological con-
dition deteriorated. It also is not incredible, in view of their
joint history at the plant, that the two Grievants would
reach a mutual decision to seek professional help on No-
vember 12, triggered by what occurred at Grievant B
[Zuczek ]’s 8-B hearing on November 11, which Grievant
A [Koontz] also attended.

It is apparent from the arbitrator’s findings and conclusions, as
well as my own consideration of the other evidence in the re-
cord before me and my observation of the Respondent’s wit-
nesses, that the Respondent rushed to judgment when it termi-
nated Koontz and Zuczek for their failure to report to work on
December 22, 1997. Rather than take the reasonable step rec-
ommended by their own doctor, the Respondent’s managers
disregarded medical evidence offered by Koontz and Zuczek
and concluded that they were fit to work. This behavior by the
Respondent’s management suggests that something more was
involved in the decision than a question whether these two
employees were truly disabled.26
2. The June 4 terminations
The Respondent issues pagers to some of its managers and
employees, including union officials. The purpose in doing so
is to enable the Respondent to contact these individuals, even
when they are out of the plant or away from a telephone, if they
are needed to attend a meeting or resolve some workplace is-
sue. Both Koontz and Zuczek, in their role as grievance repre-
sentatives, had been issued pagers for some time before their
termination in January. The Respondent leases these pagers, at
a cost of $3.25 per month, from a company called Pagenet and

26 In this regard, I also note the evidence in the record before me that
the Respondent took steps to hire a private investigator to surveil
Koontz and Zuczek almost immediately upon their calling out for
medical reasons, before it had received any medical evidence that
might have caused it to question the veracity of their claimed illness.
U.S. STEEL 167
receives a monthly bill. Pagenet charges the Respondent $99.95
for lost pagers. Kitty States, a bargaining unit employee, is
responsible for issuing pagers, documenting lost, damaged or
stolen pagers, replacing them, and reconciling the monthly bills
from Pagenet. She has been performing these duties since at
least 1991. She uses a stenographic notebook to maintain a log
in which she records, by hand, all activity related to the pagers.
She has been supervised in this assignment by Pentin since he
became the accounting department manager. She has no inde-
pendent authority to take action against any employee over
issues relating to use of the pagers.
Zuczek testified that, sometime after he went out on medical
leave in November 1997, he told Local Union President
Rooney that he had lost his pager and he asked Rooney to get
him another one. Rooney confirmed this testimony and testified
further that, in accordance with the customary practice at the
facility, he reported Zuczek’s lost pager to States and asked her
to get Zuczek another one. States testified, and the pager log
documents, that Rooney reported Zuczek’s pager lost on No-
vember 20, 1997. There is no dispute that States told Rooney,
when he returned the next day to get Zuczek’s new pager, that
Zuczek would have to see Pentin if he wanted a new pager.
Although the evidence in the record shows that it is not un-
common for employees to report lost pagers and get replace-
ments, there is no evidence in the record that any other em-
ployee who lost a pager had to go through Pentin to have it
replaced. On the contrary, the log corroborates Rooney’s testi-
mony that he had lost a pager and had it replaced by States,
without having to contact Pentin, about a month before report-
ing Zuczek’s lost pager.
In an attempt to establish that the treatment of Zuczek’s lost
pager was consistent with a policy or practice that was uni-
formly applied, Pentin and States both testified about a new
“policy” adopted by Pentin sometime in 1997 and disseminated
to managers and others by e-mail. Under this policy, an em-
ployee who lost a pager would have to pay for it. According to
States, it was this e-mail which formed the basis of her telling
Rooney that Zuczek would have to see Pentin to get another
pager. Curiously, no e-mail, memo or other written document
setting forth such a policy was ever produced at the hearing. In
addition, States and Pentin had differing recollections regarding
what was stated in the e-mail. Although I doubt such an e-mail
ever existed, it is not necessary for me to resolve this issue
because the evidence establishes that the “new” policy was
essentially never enforced against any employee other than
Zuczek. States testified that she was aware of one individual, a
guard who worked for a contractor of the Respondent, who paid
for a lost pager. Although her log shows that the individual had
a pager replaced in July 1997, it does not indicate whether he
paid for the lost pager. States conceded that her “knowledge” of
this was based on what the individual told her. She admitted
that she did not ask the guard to pay for the lost pager and that
she did not know who did ask him. States also admitted that she
did not collect the payment from him and did not know who
did. Such uncorroborated hearsay evidence is insufficient to
establish that the Respondent had any practice or policy of
seeking reimbursement from employees who lost pagers.
Moreover, because the Respondent would be the party in pos-
session of any documentary evidence that would show whether
any employee had been required to reimburse it for a lost pager
and the Respondent did not produce any such documentation, I
must infer that there was indeed no such policy.
States also testified that Rooney asked her on November 20,
1997, to hold Zuczek’s pager number, i.e., the telephone number
one would dial to page Zuczek, because Zuczek was still look-
ing for his pager and might find it. The notation, “Holding #,”
appears in the log underneath the entry documenting Rooney’s
report of the lost pager. Rooney, on rebuttal, denied telling
States to hold Zuczek’s pager number. Because a pager number
is transferable from one pager to another, it is possible that
States decided on her own to “hold” Zuczek’s number to assign
to the replacement he would receive after speaking to Pentin. In
any event, States acknowledged calling Pagenet and asking them
to cancel Zuczek’s pager number to ensure that the Respondent
would not be charged for it. The monthly invoices from Pagenet
show that States had Zuczek’s pager deactivated soon after she
received the report from Rooney. The next entry in States’ log
related to Zuczek’s pager is dated December 22, 1997, a nota-
tion indicating that Zuczek’s pager was “reactivated found.”
States testified that she was told on that date, either by Rooney
or Zuczek, that Zuczek had found his pager. Upon further ques-
tioning, States admitted that she could not really recall whether
Rooney, Zuczek, or someone else told her that the missing pager
had been found. According to States, she called Pagenet to reac-
tivate Zuczek’s pager after being told it had been found. The
January bill from Pagenet reflects a credit for the lease charge
on Zuczek’s pager for the period November 25–December 31,
1997, and a pro rated charge for the period from December 22
through 31, 1997. On this bill, the Respondent is also charged
for Zuczek’ pager for the month of January.27 Both Zuczek and
Rooney denied telling States that the pager was found. Accord-
ing to Zuczek, he never found the pager.
On or about January 6, according to States, Supervisor
Walck told her to deactivate both Koontz’ and Zuczek’s pagers
because they would not be returning to work. States then wrote
in the log, “turned off per Pentin and Walck.” States called
Pagenet and canceled both pagers around the same time. The
February bill from Pagenet shows a charge of $99.95 on Janu-
ary 15 for each pager, characterized on the bill as “lost.” The
bill also shows a credit for the portion of the monthly lease fee
for Koontz’ pager after it was deactivated. A similar credit does
not appear for Zuczek’s pager. Although Pagenet no longer
billed the Respondent the monthly charge for Koontz’ pager
after February, it continued to bill $3.25 a month for Zuczek’s
pager through April 1998. Pagenet finally cancelled Zuczek’s
pager on the May bill, with a credit only for the April monthly
charge. Although States testified that she had been seeking an
adjustment for the charges for Zuczek’s pager since it was de-
activated, she did not explain why the Respondent did not re-
ceive a credit for the period from January 6 through March 31.
The monthly bills from Pagenet would seem to corroborate
States’ testimony that someone told her on December 22 that
Zuczek’s pager had been found. There is no other reasonable

27 Pagenet bills the Respondent for the monthly lease of the pagers in
advance on the first of each month.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 168
explanation for States having reactivated a canceled pager at
that time. At the same time, however, I do not believe that
Rooney and Zuczek were lying when they denied telling States
that Zuczek had found his pager. As pointed out by the General
Counsel, December 22, 1997, was the date the Respondent had
demanded that Zuczek return to work from medical leave or
face discharge. He and the Union were in the process of trying
to buy more time for Koontz and Zuczek to submit additional
evidence from their doctors to forestall their termination. It is
highly unlikely that Zuczek or Rooney would have been con-
cerned about reporting the whereabouts of Zuczek’s lost pager
to States on that date. After Zuczek was terminated in early
January and informed that his pager was deactivated, there
would have been even less reason for either of them to have
reported the pager found, even assuming it had been. I also note
that States was clearly a reluctant witness who appeared to be
nervous throughout her testimony. She had been placed in the
difficult position of having to testify as an agent of her em-
ployer against fellow bargaining unit employees and the Union
that represents her. Moreover, she admitted highlighting en-
tries, changing some entries, and making new ones in the log
after Zuczek was terminated in order to assist the Respondent
in its response to the charges and its preparation for trial. The
location of this particular entry within the log also raises doubts
about it’s veracity because some of the dates in the preceding
and succeeding entries appear to have been altered. Finally,
States recollection regarding whose report triggered the De-
cember 22 entry in the log was poor. I, thus, credit Rooney and
Zuczek and find that neither one of them told her that Zuczek
had found his pager on December 22, 1997.
On January 13, Mark Clair, department manager-general ac-
counting, sent identical letters, by certified mail, to Koontz and
Zuczek.28 By these letters, Clair informed Koontz and Zuczek
that the pagers assigned to them had been deactivated and in-
structed them to return the pagers immediately to the plant
security office at the main gate. The letter warned them that
failure to return the pager within 30 days of the letter would
result in their being personally billed for the cost of the pager. It
is undisputed that Zuczek received this letter. He did not re-
spond to the letter because he no longer had the pager and had
already reported it lost. Koontz testified that he did not pick up
the certified letter at the post office because of a family tragedy.
However, he admitted being aware of the letter from Zuczek.
Koontz testified that he mailed the pager back to the Respon-
dent by regular mail, to the attention of States. The Respondent
apparently never received it. Koontz had very poor recollection
as to when he returned the pager, testifying at various times in
this and other proceedings that he mailed it back either in De-
cember, or in January, or after it was deactivated. The General
Counsel argues that his lack of recall is understandable consid-
ering the other issues facing Koontz in late 1997 and early
1998. While I have some sympathy for Koontz and the troubles
he was facing, these same issues make it hard to believe that he
would have taken the time to package and mail the pager to the

28 Pentin testified that Clair started at the facility in December 1997,
replacing Walck who was transferred to a similar position in analytical
and statistical accounting. Clair did not testify in this proceeding.
Respondent before he was even asked to do so. In addition,
there is other evidence in the record, to be discussed infra, that
Koontz was still wearing a pager after he says he returned the
one issued to him by the Respondent. Thus, on this issue, I
cannot credit Koontz’ testimony. Although he may sincerely
believe that he returned the pager, I doubt that he did. Cer-
tainly, there is no evidence in the record that the Respondent
received it from Koontz before it embarked on its subsequent
actions.
Although neither Koontz nor Zuczek returned their pagers or
otherwise responded to Clair’s letter within 30 days, as directed
by Clair, they were not personally billed for the cost of the
pagers. Nor was any other action taken against them for failing
to return the pagers until May 5, the date of the arbitration hear-
ing over their October 1997 suspensions. After the arbitration
hearing ended, Pentin attempted to hand-deliver envelopes to
each of them which Koontz and Zuczek refused to accept. Pen-
tin testified that he left the envelopes on the Union’s table in
front of Rooney and International Representative Dopson. Ac-
cording to Pentin, each envelope contained a letter addressed to
Koontz and Zuczek, respectively, which is signed by Pentin and
dated May 6. In the letters, Pentin refers to Clair’s January 13
letter and notes that the time prescribed in that letter for return-
ing the pagers had long since passed. Pentin then characterizes
his May 6 letter as Koontz’ and Zuczek’s “second and final
notice to return the pager to the Company.” The letter con-
cludes with the warning that if either of them failed to return
his pager by May 20, the Respondent would “(1) invoice you
for the replacement value. (2) file a civil complaint to recover
the pager replacement value and expenses and/or (3) issue dis-
cipline up to and including discharge.” Although Dopson ap-
parently picked up the envelopes and the Respondent left a
copy of each letter in the Union’s mailbox at the plant, it did
not mail the letters to Koontz or Zuczek, by regular or certified
mail. Koontz and Zuczek deny seeing these letters until after
they received disciplinary notices from the Respondent.
On May 29, the Respondent sent Koontz and Zuczek, by cer-
tified mail, notices of another 5-day suspension subject to dis-
charge. The reason stated on each was “failure to return com-
pany property as instructed.” When neither Koontz nor Zuczek
requested an 8-B hearing, the Respondent converted the sus-
pensions to terminations by certified letters dated June 4. The
Respondent never invoiced Koontz and Zuczek for the cost of
the pagers, nor instituted any civil action to recover the costs. It
is undisputed that no other employee has ever been disciplined
in any fashion for failing to return a pager.
As noted above, both Koontz and Zuczek claim that they no
longer had the pagers that were issued to them by the Respon-
dent at the time Pentin wrote his May 6 letter. Zuczek testified
that he had lost and never found his pager and Koontz that he
had returned his pager by the time he learned from Zuczek
about Clair’s January 13 letter. In order to rebut this testimony,
the Respondent produced videotapes taken of Koontz and Zuc-
zek that purport to show them wearing or carrying pagers simi-
lar to those issued by the Respondent. These videotapes were
taken during the surveillance of Koontz and Zuczek that the
Respondent initiated after they claimed to be disabled. The
videotapes and still photographs from the tapes show Zuczek
U.S. STEEL 169
with what appears to be a pager on December 16 and 31, 1997,
and February 3, after he had reported his pager lost. Koontz is
shown with what appears to be a pager on December 16 and 31,
1997, and February 6. Although Koontz was vague as to pre-
cisely when he returned his pager, none of the dates he recalled
was after February 6. There are no videotapes in evidence for
the period after February 6, although the Respondent continued
to maintain surveillance of the two discriminatees through
March.
Zuczek responded to this evidence by testifying that, after he
lost his pager, he borrowed one that the Respondent had issued
to Phil Bourke, the Union’s safety representative, so that he
could keep in contact with other union officials and employees
at the plant. According to Zuczek, he got the pager from
Bourke in November 1997 and returned it after 3–4 months.
Bourke attempted to corroborate this testimony on direct ex-
amination by the General Counsel. However, he appeared to be
nervous and uncomfortable while testifying. Several times, his
voice trailed off to barely a whisper and he had to be asked to
speak up. On cross-examination, Bourke acknowledged some
common financial interests with Zuczek outside of work.
Bourke also acknowledged that he never told States that he had
loaned his pager to Zuczek. He testified that the Union’s presi-
dent, Rooney, knew he had loaned his pager to Zuczek because
he loaned it to him after he was told by Rooney that the Union
had been having trouble getting in contact with Zuczek. Bourke
also testified that he had his pager replaced during the time that
Zuczek was borrowing it. According to Bourke, he got the
pager back from Zuczek and gave it to States to get a new one
and then returned the pager for Zuczek to use. States’ pager log
in fact shows that she replaced Bourke’s pager on February 19.
Neither Bourke nor the log provided any explanation for the
replacement. According to Bourke, he is still using the second
pager that he received from States in February and that Zuczek
returned to him in about March. Koontz responded to the video-
tape evidence by suggesting that he may have been using his
daughter’s pager, rather than the one issued by the Respondent,
when the videotape was taken. It is also possible that, because
of his poor recall, he did not “return” the pager until after Feb-
ruary 6, the last date for which videotaped evidence showing
Koontz with a pager, is in the record.
Although not entirely free from doubt, I find that Koontz, at
least, was still in possession of his company-issued pager at the
time the Respondent sent him the letters on January 13 and
May 6 asking him to return it. As previously noted, I do not
believe Koontz’ vague and shifting testimony that he mailed the
pager in a box, by regular mail, to the attention of Kitty States
at some unknown time in late 1997 early 1998. I also do not
believe that the pager that Koontz is seen wearing on the video-
tape belonged to his daughter. Because his pager number was
cancelled on January 6 and the Respondent was billed for his
pager as a lost pager effective January 15, he could no longer
be paged via that pager. Thus, it would have been useless to
him. Because of all that he and Zuczek had recently been
through at the hands of the Respondent, it is more likely than
not that he simply ignored the request to return what was at that
point a nonfunctioning piece of equipment.
Zuczek’s situation is more difficult to decipher. As previ-
ously noted, none of the witnesses who testified concerning the
whereabouts of his pager were particularly impressive. Al-
though there is no dispute that his pager was reported lost and
deactivated in late November, it was reactivated in late Decem-
ber. States testified that she reactivated this pager because
someone reported it found. Because of credibility concerns
regarding States and her entries in the log, I previously credited
Rooney’s and Zuczek’s denials that they reported it found.
Nevertheless, someone must have told States that the pager had
been found on December 22 because it is highly unlikely she
would have reactivated a missing pager. States also testified
that she notified Pagenet to deactivate Zuczek’s pager again on
January 6, the same date that Koontz’ pager was also deacti-
vated per the instructions of Walck and Pentin. However, Zuc-
zek’s number was not canceled and it remained active through
the end of March. At the same time, the cost of the pager to
which his number had been assigned was billed to the Respon-
dent as a lost pager effective January 15. It is not clear from the
evidence before me whether Zuczek could still be paged with
that pager between January 15 and March 31, a period when his
number was still active but his pager was written off as “lost.”
In addition, the videotapes clearly show Zuczek in possession
of a pager in December and in early February. In all probabil-
ity, the pager he is seen carrying in the December videos is the
one he borrowed from Bourke. However, it is just as likely that
the one he is seen wearing in February is the pager he was is-
sued by the Respondent. This is because I found Bourke’s tes-
timony regarding when Zuczek returned the pager he had bor-
rowed unreliable. As previously noted, he appeared extremely
uncomfortable testifying and appeared to have very little confi-
dence in his answers. He frequently professed to having a poor
memory and could not be specific as to the date Zuczek re-
turned his pager or even how long he had it. His testimony
regarding replacing the pager while Zuczek was still borrowing
it just didn’t make sense. I thus find that, while Zuczek may
have borrowed Bourke’s pager when he first lost his, he had
returned it and was again using his own company-issued pager
by the time he received the correspondence from the Respon-
dent seeking its return. Again, as with Koontz, I find it more
likely than not that he would have ignored the request from
Clair because, after everything else he had been subjected to by
the Respondent, the threat that he would be billed for a lost
pager must have seemed inconsequential. The return of their
company-issued pagers, when considered in the context of pre-
ceding and contemporaneous events, had to have been a low
priority for Koontz and Zuczek during the period from January
13 through May 29.
I credit Koontz’ and Zuczek’s testimony that they did not see
Pentin’s May 6 letter threatening them with, among other things,
discharge, until after they received their May 29 suspension
notices. The fact that they refused hand-delivery of the letters
from Pentin makes it probable that they would also have rejected
an attempt to deliver these letters through Rooney or Dopson.
The fact that Rooney and Dopson may have seen Pentin’s letter
before May 29 is of little moment. It is the discriminatees whom
the Respondent should have put on notice by these letters. The
Respondent certainly knew where they lived and could have
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 170
mailed these letters, as it did others, by certified mail. Yet, for
some unexplained reason, it chose not to follow this method of
ensuring that Koontz and Zuczek were on notice that failure to
return the pagers could result in yet another termination. As will
be explained in further detail in the analysis to follow, I find that
Pentin’s hand-delivery of these letters was a calculated strategy
by him and the Respondent to ensure that Koontz and Zuczek
did not know their jobs were again in jeopardy.
It is undisputed that no employee has ever been disciplined,
let alone terminated, for conduct related to their use or misuse
of company-issued pagers. Moreover, although the record also
establishes, as noted above, that employees have lost pagers
and have left the Respondent’s employ without returning as-
signed pagers, there is no reliable or credible evidence that the
Respondent took any action against these individuals to either
recover the cost of the pager or seek its return.
In preparation for the hearing in this case, counsel for the
General Counsel subpoenaed from the Respondent, inter alia, its
records showing all employees in the same bargaining unit as
Koontz and Zuczek who were suspended and/or discharged
during the period from January 1, 1995, through November 8,
1998. After conducting a diligent search of the records, the Re-
spondent produced no records showing that any unit employee
other than Koontz and Zuczek had been terminated during that
period. Although records furnished in response to the subpoena
showed that a number of employees had received suspension
notices, for infractions such as sleeping, insubordination, abu-
sive or threatening language, and/or conduct, many of the disci-
plinary notices had been removed from the employees’ person-
nel record. The Respondent’s counsel offered no explanation for
this other than to speculate that they may have been removed as
the result of grievances filed by the employee or the Union, or
under a policy requiring their removal after a certain period of
time. In many cases, the employee receiving the suspension
never in fact served the suspension because the discipline was
removed in the course of the 8-B or grievance process. The
most severe instance of discipline involving unit employees that
is in evidence occurred in October 1998, after the terminations
of Koontz and Zuczek at issue here. In that case, three employ-
ees who worked in purchasing positions were initially sus-
pended for 5 days pending discharge for violating the Respon-
dent’s rules regarding the acceptance of vendor gifts. The three
employees had accepted a weekend trip to Pittsburgh to see a
football game, with all expenses paid by the vendor. One of the
employees also received a 5-day suspension for being absent
without cause when he missed work to go on the trip. At the
conclusion of their 8-B hearings, the Respondent reached an
agreement with the employees and the Union to suspend them
for 40 days, rather than terminate them. This resolution of the
discipline was reached within a week of the initial suspension
notices being issued. The records furnished by the Respondent
pursuant to subpoena also show that one other employee with a
less than stellar disciplinary history received four separate disci-
plinary notices on the same day, July 14, 1998—a warning and
1-day suspension for unsatisfactory work, a warning for leaving
work without permission and a 5-day suspension for using pro-
fanity toward a supervisor. Within 2 months, the same employee
received another suspension, for 3 days, for unsatisfactory work.
This employee was never terminated.
The Respondent countered this evidence with testimony
from Garraux, its corporate manager of employee relations, that
the failure to return the pager was “tantamount to theft” and
that the Respondent deals with such cases severely, regardless
of the value of the item stolen. No documentary evidence to
support this testimony was offered. There is no evidence in the
record before me that the Respondent has discharged any em-
ployee at the Fairless Works for theft. The Respondent’s wit-
nesses acknowledged that discharge of employees in the sala-
ried unit at the Fairless Works are rare, attributing this to the
small size of the unit and the long tenure of most employees in
the unit.
3. Postmortem evidence
As previously noted, the Respondent terminated Koontz a
third time, on November 3, shortly after having revoked his
June 4 termination for failing to return the pager. Koontz filed a
grievance over this last termination, which the Union pursued
to arbitration on October 6, 1999. The chairman of the arbitra-
tion panel, Shyam Das, issued his award on December 3, 1999.
Arbitrator Das denied the grievance based on his finding that
Koontz had acted dishonestly and that the Respondent had just
cause to discharge him. He concluded further that the Respon-
dent’s decision to terminate Koontz on November 3 was not
due to his union activities. The arbitrator’s finding of dishon-
esty was based on conflicting statements from Koontz and his
doctors regarding his ability to return to work in February 1998.
As reported in the arbitrator’s decision, Koontz had testified at
an unemployment hearing on September 2, 1998, that his doc-
tors had determined that he was able to return to work in Feb-
ruary 1998. The arbitrator reported further that, on September
16, 1998, the Union, in demanding that the Respondent comply
with Das’ August 31, 1998 arbitration award reversing the
January termination, submitted a letter from one of Koontz’
doctors stating that he was able to return to work by March 2,
1998. These two statements apparently conflicted with a letter
from the other doctor treating Koontz, which had been submit-
ted as evidence in the arbitration over the January termination,
indicating that Koontz was still unable to work as late as Febru-
ary 20, 1998. In the absence of any testimony at the arbitration
hearing from Koontz or his doctors, explaining the apparent
conflict, the arbitrator concluded that Koontz had “induced his
doctors to misrepresent either his disability or his ability to
return to work on March 2, or participated in that misrepresen-
tation, for his own monetary gain.”
The General Counsel had initially alleged that Koontz’ No-
vember 3 discharge violated Section 8(a)(1) and (3) of the Act
but withdrew that allegation after issuance of Arbitrator Das’
December 3, 1999 decision. The General Counsel took this
action under the Board’s Spielberg/Olin deferral policy. No
party has contended before me that it was improper to defer to
that arbitration award. Nor did any party offer any independent
evidence regarding the November 3 termination. Thus, as with
the other arbitration awards to which the General Counsel has
deferred, I must accept the arbitrator’s findings to the extent
U.S. STEEL 171
they are relevant to resolution of any of the issues before me,
including those relating to credibility of the witnesses.
B. Analysis and Conclusion
The Board, in Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982),
established the analytical framework for determining whether
an employer has violated Section 8(a)(1) or (3) of the Act by
terminating an employee. The General Counsel must first show,
by a preponderance of the evidence, that animus against pro-
tected conduct was a motivating factor in the employer’s deci-
sion to terminate the employee. Once such a showing has been
made, the burden shifts to the employer to demonstrate that it
would have taken the same action even in the absence of pro-
tected conduct. To sustain his initial burden, the General Coun-
sel must show that the employee was engaged in activity that is
protected by Section 7 of the Act; that the employer was aware
of the activity; and that the protected activity was a substantial
or motivating reason for the action it took. Naomi Knitting
Plant, 328 NLRB 1279, 1281 (1999); Manno Electric, 321
NLRB 278 (1996). The Board has long recognized that direct
evidence of unlawful motivation will rarely be available. Thus,
the General Counsel may rely upon circumstantial evidence
from which it may be inferred that union or protected activity
was a motivating factor in the employer’s action. Naomi Knit-
ting Plant, supra.
The evidence described above clearly establishes that Koontz
and Zuczek were long-term, active union representatives with a
history of grievance filing and other activities intended to en-
force the rights negotiated in the collective-bargaining agree-
ment. It is undisputed that, in 1996 and early 1997, Koontz and
Zuczek were also involved in representing at least two female
employees in pursuing complaints of sexual harassment. These
employees ultimately pursued their claims outside the Respon-
dent by going to State and Federal antidiscrimination agencies.
The Respondent clearly took the complaints seriously enough to
conduct two internal investigations. Although the Respondent’s
managers concluded that no sexual harassment took place, it did
coincidentally remove the offending manager from the work
area to minimize his contact with the complaining employees. In
any event, the protected nature of the employees’ complaints
does not turn on their merits. See NLRB v. City Disposal Sys-
tems, 465 U.S. 822, 840 (1984). The record evidence also
clearly demonstrates that the Respondent’s managers at the Fair-
less Works blamed Koontz and Zuczek for these complaints,
accusing them of instigating the women in order to retaliate
against the manager in a dispute over a reorganization that ad-
versely affected unit employees. The record before me contains
no evidence which would remotely suggest that the employees’
complaints were not made in good faith in the reasonable belief
that the supervisor had engaged in offensive behavior.
The Respondent’s own witnesses acknowledged dealing with
Koontz and Zuczek on a regular basis over grievances. Ken-
nedy, in particular, testified that Koontz and Zuczek had been
pursuing grievances for some time over the issue of assigning
unit work to nonunit employees. In fact, this was the issue that
precipitated the May 1997 meeting at which Pentin had his first
significant confrontation with the two grievance representa-
tives. Based on the credited testimony of Koontz and Zuczek, I
have already found that Pentin touched Koontz and directed an
obscene epithet toward him and threatened both that they were
not “immune from losing their jobs.” I have also found that he
repeated the threat of discharge to Zuczek the next day, after
Koontz and Zuczek had complained about his conduct at the
meeting to Kennedy.
Based on the above, the General Counsel has established at
least the first two elements of her case, that the employees were
engaged in protected concerted and union activity and that the
Respondent was aware of it. I also find that Pentin’s threat and
abusive conduct toward Koontz at the May 1997 meeting and
the position advanced by the Respondent in response to the
anti-discrimination claims of the two female employees are
evidence of the Respondent’s animus toward Koontz and Zuc-
zek for pursuing grievances and the sexual harassment com-
plaints. The Respondent’s subsequent actions against Koontz
and Zuczek must be considered against this background of
hostility toward them in their roles as grievance representatives.
As found by the arbitrator, Koontz and Zuczek “abused their
official union position” by calling out on union business in
order to avoid attending a mandatory meeting scheduled by
Pentin on October 16, 1997. Pentin, obviously irked by this
challenge to his authority, suspended them for 5 days, despite
the fact that neither employee had any other discipline on their
record and did not have attendance problems. In addition, the
evidence in this case establishes that several other employees
who were absent from work due to illness or vacation did not
attend this meeting. The arbitrator concluded and I agree that
this punishment was excessive and out of proportion to the
offense. In this regard, I note that the evidence here shows that
the Respondent had never before questioned a union official’s
use of union time and that Koontz and Zuczek followed the
established practice for taking time off for union business. I
note also that the Respondent’s managers went out of their way
to “clear” Koontz’ and Zuczek’s union schedules, even asking
the Union’s International representative to reschedule a meeting
with Koontz, also unprecedented in the Respondent’s history
with the Union. Under these circumstances, it would have been
reasonable for Koontz and Zuczek to believe that the Respon-
dent, and Pentin in particular, was trying to interfere with their
conduct of union business and modifying the established prac-
tice for taking union time. Thus, as noted by the arbitrator, their
failure to attend the meeting was a test of wills. I believe that
the Respondent’s decision to suspend Koontz and Zuczek for
this first offense was motivated not by the fact that they failed
to attend a mandatory meeting, as did other employees who
were out on other forms of leave, but because they were out on
union leave. It is apparent to me that Pentin saw this as another
example of Koontz and Zuczek using their union positions to
“throw a monkey wrench” into anything he tried to do.
Koontz’ and Zuczek’s belief that the Respondent’s actions
were an attempt to undermine their position as union represen-
tatives is further evidenced by what occurred at their 8-B hear-
ings on October 31 and November 11, 1997. It is undisputed
that Zuczek and Koontz pressed this belief in their questioning
of Pentin. Frustrated by his lack of response to their concerns,
Zuczek admittedly used profanity toward Pentin. Based on the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 172
credited testimony of Koontz and Zuczek, I find that this was
precipitated by Pentin pointing his finger at Zuczek. Although
Zuczek’s conduct on November 11 was not much different than
Pentin’s on May 30, the Respondent suspended Zuczek for
another 5 days. Although there is evidence in the record that the
Respondent has suspended other employees for profanity to-
ward a supervisor, there is no evidence of any other incident
where the profanity occurred in the context of a heated griev-
ance meeting after the employee was provoked. Moreover,
witnesses for both sides acknowledged that the language used
by Zuczek was common in the plant, referred to by several
witnesses as shop talk. Although I need not resolve the issue
because it is not alleged as a separate violation, I will note that
the Board has in the past extended the Act’s protection to union
stewards who use similar profanity in the course of a grievance
meeting. See Severance Tool Industries, 301 NLRB 1166
(1991), enfd. 953 F.2d 1384 (6th Cir. 1992).
On November 12, the day after the verbal confrontation be-
tween Zuczek and Pentin, both employees called out claiming
to be suffering from stress. As was patently obvious to the arbi-
trator and is clear from the testimony of the Respondent’s wit-
nesses here, the Respondent concluded before receiving any
medical documentation, that Koontz and Zuczek were not ill.
This rush to judgment was typical of the Respondent’s treat-
ment of Koontz and Zuczek. Even when its own plant doctor
advised the Respondent that he could not form a medical opin-
ion on the question of disability and recommended an inde-
pendent medical evaluation, the Respondent proceeded to ter-
minate their salary continuance benefits and demanded that
Koontz and Zuczek return to work. The Respondent then re-
jected a reasonable request from the Union that they be allowed
an additional 4 days, including the Christmas holiday, to con-
sult with their doctor before returning to work. The arbitrator
found and I agree that the Respondent did not have just cause to
terminate Koontz and Zuczek for failing to return to work on
December 22, 1997.29 The Respondent’s hasty and ill-advised
decisionmaking which led to its first attempt to terminate
Koontz and Zuczek on January 4 demonstrates that the Re-
spondent was motivated by more than just a concern for
whether Koontz and Zuczek were fraudulently receiving dis-
ability benefits.
On May 5, while Koontz and Zuczek were still out of work
awaiting the arbitration of their discharge grievance, the Re-
spondent set in motion another attempt to terminate them. As
found above, Pentin attempted to hand-deliver a May 6 letter
containing a “final warning” that Koontz’ and Zuczek’s failure
to return company-issued pagers within 2 weeks would subject
them to discipline “up to and including discharge.” There is no

29 The December 1999 finding by Arbitrator Das that Koontz was
dishonest with respect to the status of his disability in February and
March 1998 does not affect the result here. There is no evidence in the
record before me that would cast doubt upon the veracity of Koontz’
and Zuczek’s claim that they were suffering from work-related stress
when the Respondent began its attempt to discharge them in December
1997. The findings of the same arbitrator, when considering the evi-
dence before him which existed at the time Respondent terminated
Koontz and Zuczek the first time, quoted above, is as accurate now as it
was then.
dispute that Koontz and Zuczek refused to accept hand-delivery
of the letters. Although the envelopes were left with union rep-
resentatives, the Respondent made no other effort to serve
Koontz and Zuczek with this warning. When the Respondent
previously requested return of the pager, with only the threat of
being billed for its cost, it sent the letter by certified mail. The
Respondent’s unexplained decision not to use the same method
of ensuring that Koontz and Zuczek received this final warning
is suspect. I have found above that Koontz and Zuczek did not
see these letters until after the Respondent suspended them
subject to termination. I find, based on the pattern of Respon-
dent’s treatment of Koontz and Zuczek, that the Respondent
was not concerned with whether Koontz and Zuczek actually
received this warning because it had already made up its mind
to terminate them. Had either Koontz and Zuczek actually re-
ceived the warning and returned the pager or reported it miss-
ing before the deadline, the Respondent could not have pro-
ceeded with its plans.
The Respondent’s “rush to judgment” in this latest attempt to
terminate Koontz and Zuczek is further demonstrated by the
Respondent’s failure to conduct any investigation before send-
ing the May 29 notice suspending them subject to discharge for
failing to return the pager. The memo prepared by Clair which
was submitted to the Board’s Regional Office during the inves-
tigation is dated after the termination. The typed portion at the
top purports to establish that Clair checked to determine the
status of the missing pagers before the Respondent issued the
discipline. Although Clair indicates in his memo that he con-
sulted with States, the Respondent’s custodian of the pager log
who is responsible for keeping track of company-issued pagers,
she denied being questioned about Koontz’ or Zuczek’s pagers
before they were terminated. Clair’s handwritten footnote at the
bottom of his memo confirms this, indicating that only after the
terminations had been effectuated did Clair bother to check
with States, learning for the first time that Zuczek had previ-
ously reported his pager lost. As noted above, Clair did not
testify in this proceeding.
The above facts and the circumstances surrounding the Re-
spondent’s June 4 termination of Koontz and Zuczek are suffi-
cient to persuade me that their union and protected concerted
activity was a substantial and motivating factor in the Respon-
dent’s decision to terminate them over the pagers. In addition to
the above, I also note that the Respondent had apparently never
before undertaken any similar effort to retrieve a pager from an
employee who was no longer employed by the Respondent
even though there is evidence that employees have in the past
left without returning their pagers. I thus conclude that the
General Counsel has met his burden of proving that protected
activity was a motivating factor in the Respondent’s conduct.
The Respondent has argued that the General Counsel failed to
meet his burden because of lack of timing and insufficient evi-
dence of animus on the part of its decisionmaker. I reject both
these arguments. While it is true that some time had passed
between Koontz’ and Zuczek’s pursuit of the sexual harassment
complaints of fellow employees and the June 4 terminations,
their protected activity was not limited to this issue. Their ac-
tivities as union grievance representatives were ongoing. Each
time they filed a grievance, or made an issue over a work as-
U.S. STEEL 173
signment, they were engaged in activity protected by Section 7
of the Act. It could also be argued that their action in taking
union time to avoid attending the October 16 meeting sched-
uled by Pentin was an effort to protest a perceived interference
by management in the Union’s affairs. This is the position they
took at their 8-B hearings. The Respondent’s reaction to this
test of management authority commenced with that meeting
and escalated until the June 4 terminations at issue here. Thus,
contrary to the Respondent’s argument, the element of timing
supports a finding of unlawful motivation in this case.
The Respondent’s attempt to distance itself from the clear
evidence of animus on the part of Pentin and the other local
managers is frivolous. Although Garraux may have been the
individual who made the final decision as to Koontz’ and Zuc-
zek’s termination, he relied upon reports and recommendations
he received from the people at the Fairless Works, including
Pentin. He did not conduct any “independent investigation” in
the sense of contacting the Union or Koontz and Zuczek to
obtain their side of the story. Rather, he accepted whatever
Pentin and the other managers communicated to him as the
basis for his decision. Under these circumstances, whatever
animus these managers harbored toward the discriminatees was
attributable to the Respondent. Moreover, Garraux himself
exhibited significant animus toward Koontz and Zuczek. I ob-
served at the hearing that he bristled with hostility when testify-
ing about the two discriminatees. The preponderance of the
evidence here convinces me that animus toward Koontz’ and
Zuczek’s union and protected activity infected every step of the
decisionmaking process at issue here.
The burden thus shifts to the Respondent to prove that it
would have terminated Koontz and Zuczek on June 4 even in
the absence of such activity. An employer can meet its Wright
Line burden if it establishes that it had a reasonable belief that
an employee engaged in misconduct and that it would have
terminated any employee for engaging in such misconduct.
Rockwell Automation/Dodge, 330 NLRB 82, 85 (2000), and
cases cited therein. However, an employer must do more than
simply show that it had a legitimate reason for taking discipli-
nary action. It must persuade by a preponderance of the evi-
dence that the same action would have been taken in the ab-
sence of protected activity. Centre Property Management, 277
NLRB 1376 (1985); Roure Betrand Dupont, Inc., 271 NLRB
443 (1984). Where the General Counsel makes out a strong
prima facie case, as has been done here, the burden on the re-
spondent to overcome a finding of discrimination is substantial.
Eddyleon Chocolate Co., 301 NLRB 887, 890 (1991).
There is no dispute that neither Koontz nor Zuczek re-
sponded to Clair’s January 13 letter directing them to return
their pagers or risk being billed for their cost. I have found
above that, in all likelihood, Koontz and Zuczek still had their
pagers when they received this directive. Thus, when Pentin
prepared the May 6 final notice, warning them that they faced
discipline up to and including discharge if they did not return
the pagers by May 20, the Respondent would reasonably have
believed that Koontz and Zuczek still had their company-issued
pagers. When the pagers had still not been returned by May 29,
the Respondent initiated the process that led to the June 4 ter-
mination. The real issue here is whether the failure to return the
pagers would have resulted in a second termination if not for
Koontz’ and Zuczek’s history of union and protected concerted
activity.
The Respondent argues that it made the decision to terminate
Koontz and Zuczek because it considered their failure to return
the pagers as a continuation of a pattern of defiant disregard of
reasonable management directives. The Respondent also argues
that the failure to return the pagers was tantamount to theft of
company property, conduct which routinely results in termina-
tion, regardless of the value of the item stolen. There are sev-
eral problems with this defense. The Respondent’s efforts to
suspend and discharge the discriminatees for earlier instances
of “defiant disregard of management authority” have already
been struck down by arbitrators who heard all the evidence and
concluded that the Respondent did not have just cause for this
discipline. After hearing the evidence in the instant case, I have
agreed with these arbitration decisions. Because the Respon-
dent was ordered by the arbitration panel to remove the prior
suspension and termination, it would be improper to rely upon
this prior discipline as proof that the Respondent had just cause
to discharge Koontz and Zuczek over the missing pagers.
Moreover, I do not agree with the Respondent that Koontz’ and
Zuczek’s behavior that resulted in the prior discipline exhibits
the type of conduct that would routinely result in discharge at
the Respondent’s facility. There is no evidence in the record
before me that the Respondent has ever terminated an employee
for disregarding a management directive. On the contrary, the
limited evidence of discipline that is in the record suggests that
the Respondent has tolerated disregard of significant policies
over acceptance of gifts from vendors, insubordination, and
leaving work without permission by choosing lesser forms of
discipline than termination for the employees involved.
Garraux’s testimony that he considered the discriminatees’
failure to return the pagers as “tantamount to theft of company
property” was contradicted by Pentin, the supervisor who initi-
ated the disciplinary action. Pentin testified that the issue was
not Koontz’ and Zuczek’s failure to return the pagers, but their
intentional disregard of a management directive to return them,
conduct which Pentin described as defiance. I have already
noted above that Pentin bore substantial animus toward what he
perceived to be defiance by Koontz and Zuczek that occurred in
the context of their grievance and union representational activi-
ties. This animus obviously colored the significance he attached
to their failure to return the pagers. I note, for example, the
absence of any evidence that the Respondent attempted to re-
trieve pagers from former employees before Clair’s January 13
letter, despite the testimony of States that it was not unusual for
an employee to leave the Respondent’s employ without return-
ing a company-issued pager. The record also establishes that
the Respondent exhibited very little concern about lost or miss-
ing pagers it had issued its managers and employees before the
issue arose with Koontz and Zuczek.
Based on the above, I conclude that the Respondent has not
met its burden of showing that it would have terminated Koontz
and Zuczek on June 4 for failure to return their pagers were it
not for their statutorily protected activities as union grievance
representatives. In reaching this conclusion, I have considered
the final arbitration decision upholding Koontz’ third termina-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 174
tion and his finding that Koontz had been dishonest and en-
gaged in fraudulent conduct to increase a potential backpay
award. I have already found that Zuczek was not entirely credi-
ble. In addition, Koontz’ and Zuczek’s efforts at challenging
management over workplace issues, while clearly protected,
approached the line between permissible advocacy and insub-
ordination. Nevertheless, their defiant behavior and any “dis-
honesty” in pursuing their claims of work-related stress were
provoked by the Respondent’s campaign to rid itself of these
strong and effective union representatives. It is undisputed that,
before the arrival of Pentin, Koontz, and Zuczek had worked
many years for the Respondent and performed their union du-
ties without any discipline. By October 1997, it was clear that
Pentin was on a path to set them up for termination in retalia-
tion for their challenge to his authority that began with the in-
ventory in May. Their simultaneous claim to be suffering from
workplace stress, which may have seemed incredible to Pentin
and the Respondent’s management, was a reasonable response
to the suspension and what occurred at the 8-B hearings. The
Respondent’s abrupt cancellation of their disability benefits and
decision to terminate them, in disregard of existing medical
reports and the opinion of it’s own plant doctor, would only
tend to exacerbate any feelings of defiance on the part of
Koontz and Zuczek and would explain their disregard of Clair’s
letter. I have already concluded, from the manner it which it
was delivered, that Pentin’s May 6 final notice was not an at-
tempt to warn the employees that they faced discipline for per-
ceived misconduct, but simply another attempt to set them up
for termination. Under these circumstances, the Respondent
cannot escape liability for its actions by pointing the finger at
Koontz and Zuczek.
Accordingly, I find that the preponderance of the evidence in
the record establishes that the Respondent terminated Koontz
and Zuczek on June 4 because of their protected union and
concerted activities. The Respondent has thus violated Section
8(a)(1) and (3) of the Act as alleged in the complaint.
CONCLUSION OF LAW
By terminating Brian Koontz and Stanley Zuczek on June 4,
1998, because of their union and other protected concerted
activities the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
(3) and Section 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 discrimina-
torily discharged Stanley Zuczek, it must offer him reinstate-
ment and make him whole for any loss of earnings and other
benefits, computed on a quarterly 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 computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). Although I have found that the
Respondent also violated the Act by discharging Brian Koontz,
the General Counsel does not seek reinstatement as a remedy in
light of the December 1999 arbitration award upholding his
November 3, 1998 termination. To the extent it has not already
done so, however, the Respondent must make Koontz whole for
any loss of earnings and other benefits for the period from June
4 through November 3, 1998, in the manner set forth above. I
shall also recommend the customary expunction and notice
posting remedies.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended30
ORDER
The Respondent, U.S. Steel, a Division of USX Corporation,
Fairless Hills, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting United Steelworkers of America, Local
Union No. 5092, AFL–CIO, or any other union, or for engaging
in any other concerted activities that are protected by the Act.
(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 Stanley
Zuczek 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 Brian Koontz and Stanley Zuczek whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in the rem-
edy section of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges, and within 3
days thereafter notify the Koontz and Zuczek in writing that
this has been done and that the discharges will not be used
against them 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, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Fairless Hills, Pennsylvania, copies of the attached
notice marked “Appendix B.”31 Copies of the notice, on forms

30 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
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
31 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
U.S. STEEL 175
provided by the Regional Director for Region 4, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained 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 pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since June 4, 1998.
(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.