Whitesville Mill Service Co

National Labor Relations Board - Board Decisions

Jun 23, 1992

307 N.L.R.B. 937 (N.L.R.B. 1992)

937
307 NLRB No. 149
WHITESVILLE MILL SERVICE CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent correctly excepts that there is no evidence that
Roy Hurt received vacation pay while on a suspension, as found by
the judge. This error, however, does not require any change in the
conclusion that Plant Manager Wall was largely indifferent to acci-
dents on the job.
The Respondent also excepts to the judge’s inference that Wall
‘‘waited until after the union meeting, which confirmed Hurt’s lead-
ing role in the campaign’’ before discharging Hurt. Although the
evidence does not show that Wall had actual knowledge of the union
meeting or that Hurt had attended it, the evidence does show that
within 48 hours of Wall’s learning of Hurt’s union involvement Hurt
was discharged.
2 The Respondent argues that the judge erred in recommending
that Roy Hurt be reinstated. The Respondent implies that Hurt mis-
represented his criminal record at the hearing. A review of the testi-
mony reveals not misrepresentation but, at most, confusion on Hurt’s
part concerning the crime for which he was convicted 15 years prior
to the hearing. Although Hurt falsified his employment application
by denying that he had been convicted of a felony, the Respondent
did not refute his testimony that he told Plant Manager Wall of this
conviction a few months after his hire and that Wall condoned
Hurt’s misrepresentation by saying, ‘‘It doesn’t matter to me. I hire
whoever I want around here.’’ Thus, we find Respondent’s exception
urging that we deny Hurt reinstatement and backpay based on his
falsification of his employment application to be without merit.
The Respondent also argues that the judge erred in failing to make
any findings concerning Hurt’s unauthorized review of his personnel
file 1 week before his discharge which, according to the Respondent,
constitutes misconduct sufficient to bar reinstatement. Preliminarily,
we note that the Respondent failed to raise this objection before the
judge in its posthearing brief. We also note that, contrary to the Re-
spondent’s implication, Hurt did not permanently ‘‘remove’’ or pur-
loin any document from his file. He merely examined his own per-
sonnel file and returned it to the open file drawer from which he
had retrieved it. That conduct is not sufficiently egregious to bar re-
instatement with full backpay particularly inasmuch as the Respond-
ent offered no evidence that at the time of the incident it maintained
any work rule which prohibited employees’ access to their personnel
files.
1 All dates for 1990 unless otherwise indicated.
Whitesville Mill Service Co., Inc. a wholly-owned
subsidiary of Edward C. Levy Co., Inc. and
Roy Anthony Hurt and Operating Engineers,
Local Union No. 841, International Union of
Operating Engineers, AFL–CIO. Cases 25–CA–
20918 and 25–CA–20929
June 23, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On September 18, 1991, Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.2
The Respondent excepts, inter alia, to the judge’s
conclusion that employee Roy Hurt’s discharge vio-
lated Section 8(a)(3). The Respondent contends that
the General Counsel failed to establish a prima facie
case of discrimination because antiunion animus was
allegedly not established.
In concluding that the Respondent had antiunion
animus, the judge relied on Plant Manager Wall’s
statement that he was ‘‘shocked’’ that union activity
had surfaced at the plant and that Hurt was a leading
union proponent. Although we agree that the Respond-
ent harbored union animus, we find it unnecessary to
rely on Wall’s testimony at the hearing concerning his
shock at discovering union activity in order to infer
animus towards the Union. Rather we infer from the
pretextual nature of the reasons for the discharge ad-
vanced by the Respondent that the Respondent was
motivated by union hostility. Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966). In this
regard, we agree with the judge that the Respondent’s
contention that Hurt was discharged because of accu-
mulated incidents involving damage to equipment and
unsatisfactory work was merely a pretext supported by
equipment damage reports fabricated after the fact.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Whitesville Mill Service
Co., Inc. a wholly-owned subsidiary of Edward C.
Levy Co., Inc., Crawfordsville, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Ann Rybolt, Esq., for the General Counsel.
Ray Blankenship, of Greenwood, Indiana, and Steven Crist,
Esq., of Munster, Indiana, for the Respondent.
Roy Hurt, of Crawfordsville, Indiana, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. These consoli-
dated cases were heard at Indianapolis, Indiana, on May 23
and 24 and July 1 and 2, 1991. The charges were filed re-
spectively on October 5 and 11, 1990, by Roy Anthony Hurt,
an individual, and Operating Engineers, Local Union No.
841, International Union of Operating Engineers (the
Union).1 The consolidated complaint, which issued on De-
cember 28, alleges that Whitesville Mill Service Co., Inc., a
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Certain errors in the transcript are noted and corrected.
wholly-owned subsidiary of Edward C. Levy Co., Inc. (the
Company or Respondent) violated Section 8(a)(1) and (3) of
the National Labor Relations Act. The gravamen of the com-
plaint is that the Company allegedly discharged employee
Roy Hurt because of his union activities, and further violated
Section 8(a)(1) by threats of reprisal. The Company’s answer
denies the commission of the alleged unfair labor practices.
All parties were afforded full opportunity to participate, to
present relevant evidence, to argue orally, and to file briefs.
On the entire record in this case2 and from my observation
of the demeanor of the witnesses, and having considered the
arguments of counsel and the briefs submitted by General
Counsel and the Company, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, an Indiana corporation with its principal of-
fice and place of business in Crawfordsville, Indiana, is en-
gaged at that facility in the business of processing slag and
related products. In the operation of its business, the Com-
pany annually ships goods valued in excess of $50,000 from
its facility directly to points outside of Indiana. I find, as the
Company admits, that it is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Edward C. Levy Co., the parent company, is engaged
through some 40 to 50 subsidiaries in the business of serv-
icing steel mills in the United States and Australia.
Whitesville Mill Service, the subsidiary here involved, com-
menced operations in January 1989. It exists for the purpose
of servicing a steel mill operated by Nucor Corporation, and
is the only Levy subsidiary servicing Nucor. Hugh (Pete)
Wall has been plant manager since the inception of oper-
ations. He is the only company supervisor at the facility.
Wall reports to Levy General Manager James Webber, based
in Dearborn, Michigan, who has overall charge of three sub-
sidiaries, including the Whitesville Mill facility. Webber’s re-
sponsibilities include labor relations and safety. Levy has
union relations at some 30 to 35 of its subsidiaries. However,
both Nucor and the Company facility are nonunion.
The Company’s principal functions are to remove slag,
truck it to the plant, screen and process it for sale, and to
receive all of Nucor’s scrap, process it to various sizes and
return it to the mill for remelt. There are at the Nucor plant
two slag pits (one for each furnace), a ladle cleanout pit,
which also receives molten material, and a tundish pit or bay.
Tundish is long steel bars, which the Company will remove
if necessary. The Company’s own facility consists of a trailer
(including its office), a garage, a mechanical garage, and a
plant for sorting slag. When Hurt was employed, the Com-
pany utilized two front-end loaders on tracks, one (later two)
on tires, off-road vehicles (Euclid-type 30 ton dump trucks),
and cranes. Company employees removed material from the
pits with the front-end loaders, loaded it onto the off-road
vehicles, and hauled it to the plant for processing. The Com-
pany has been gradually increasing its operations as Nucor
has increased production. It presently has 14 employees who
are classified as operators. There were about 11 in 1990.
They interchangeably operated the loaders and trucks, al-
though now some employees exclusively drive trucks. The
employees worked in pairs, with one operating the loader
and the second driving the truck. The Company also has one
mechanic. Until May 1990 the Company had no clerical em-
ployees. In May the Company hired Lisa Cox, who has since
served as Wall’s secretary. Until mid-September 1990 (about
2 weeks before Hurt’s discharge), the Company operated
with two shifts, 5 or 6 days per week: the first shift worked
from 5 a.m. to 1 p.m. and the second from 5 p.m. to 1 a.m.
Since mid-September the Company has operated around the
clock (24 hours a day, 7 days a week). Employees work 4
days on and 4 days off, in shifts from 10 a.m. to 10 p.m.
and 10 p.m. to 10 a.m. The work is hard, heavy, dirty, and
dangerous. Nucor poured molten steel at temperatures of
2800 to 3000 degrees, which hardened in 1 to 2 hours. Com-
pany operators sometimes scooped out steel while still in liq-
uid state. Employees were required to move steel pieces
weighing as much as 20 tons. Accidents and incidents in-
volving property damage were not unusual. As will be dis-
cussed, defects in equipment and unavoidable conditions
such as the widespread presence of scrap metal, were at least
contributing factors. However, as will also be discussed,
Plant Manager Wall invariably placed the blame on human
error. Until Hurt’s discharge, he did not indicate serious con-
cern about such alleged human failure, unless they involved
a complaint from Nucor. Concern about plant safety led to
an aborted union organizational campaign among the Com-
pany’s employees in late September. After Wall discharged
Hurt (on October 1), the Company took steps to improve the
condition of its equipment and facilities.
Roy Hurt began working for the Company as an operator
on May 12, 1989. About September 21, 1990, Hurt called
Union Business Agent James Fox, telling him that the em-
ployees were interested in a union. Fox subsequently con-
tacted Hurt and arranged for Fox and Union Organizer Nor-
man Hale to meet with Hurt at a restaurant in Covington, In-
diana. They met on Friday, September 28, at 8 a.m. They
discussed the situation at the plant. Hurt signed a union au-
thorization card. The union representatives gave Hurt addi-
tional blank authorization cards. They arranged to have a
meeting for employees at a motel in Crawfordsville on Sun-
day evening, September 30, and a followup meeting on Mon-
day morning, October 1, for those employees who were
scheduled to be at work at the time of the first meeting. Hurt
reported to work at 10 a.m. and worked Friday and Saturday.
He distributed authorization cards and told the employees
about the Sunday meeting. Hurt and other employees at-
tended the Sunday evening meeting. Hurt did not work on
Sunday. On Monday at 9 a.m., Plant Manager Wall tele-
phoned Hurt at his home. Hurt testified in sum as follows:
Wall said he would have to let Hurt go because too much
equipment was being torn up, and Hurt burned up a couple
of machines in the pit. Hurt responded that that happened
months ago, and operator Tim Via also burned up a machine.
Wall added that Hurt also tore up a radiator. Hurt answered
that was not his fault, and ‘‘we both know what this is
939WHITESVILLE MILL SERVICE CO.
3 In its brief, the Company stated (p. 4) that Union Business Agent
Fox testified that Hurt told him that he was fired for destroying
equipment. That is not a correct description of the testimony. Fox
testified that Hurt told him ‘‘that they said it was because he de-
stroyed equipment down there. (Emphasis added.)
about.’’ Hurt immediately went to the plant and continued
the discussion in Wall’s office. Hurt asserted that this has to
do with the Union. Wall disagreed, insisting that it had to
do with equipment damage. Hurt suggested they forget about
it and get back to work. Wall ended the discussion by stat-
ing: ‘‘If you try to start a union around here, I will lay ev-
erybody off and shut this place down and open up a day later
under another name and hire all new employees . . . there
is nothing I can do, my back is against the wall.’’ Earlier,
in August, some four employees, including Hurt, John Mills,
and Wall’s son, Ricky Wall, were together while Hurt was
servicing equipment. Wall came into the garage and asked
what the hell was going on here. One employee remarked
they were having a union meeting. Wall declared ‘‘if you
guys are trying to start a union around here, I will fire every
f—king one of you.’’ In an unemployment compensation
hearing arising from Hurt’s discharge, he gave a detailed de-
scription of his discharge conversations with Wall, which did
not include the alleged threat described above. Employee
Mills, who was presented as a company witness, testified that
he was never present at a gathering as described by Hurt,
and never heard Wall make the threat described by Hurt.3
Plant Manager Wall, in his testimony, was evasive about
whether he knew of union activity at the time he discharged
Hurt. He eventually admitted that he knew of some union ac-
tivity and that Hurt was possibly involved. Wall subsequently
admitted that on September 29 he learned of Hurt’s union ac-
tivity from employee Pat Duffy. Wall testified that on Satur-
day, September 29, about 5:30 p.m., Duffy came into his of-
fice and asked if Wall was aware of union activities. Duffy
mentioned Hurt and Tim Via. Duffy hastened to assure Wall
that he wanted no part of any union. Wall testified that he
was ‘‘shocked,’’ and so told Duffy. Although Via was called
as a company witness, he was not questioned about the union
activity, and no witness contradicted the testimony of Hurt
and Fox to the effect that Hurt initiated the organizational
campaign and was the principal union adherent. Wall testi-
fied that he did not make the threats attributed to him by
Hurt, either at the alleged gathering of employees or in the
discharge conversations. Wall testified in sum as follows: His
decision to discharge Hurt was a business decision, based on
Hurt’s record of incidents involving damage to equipment
and unsatisfactory work, and Wall could no longer put up
with it. Hurt’s union activity had no effect on the discharge.
The culminating incident occurred on September 27, and in-
volved damage to a track loader radiator. A subsequent inci-
dent on September 29, involving damage to a loader tire, did
not figure into Hurt’s discharge, because Wall had already
decided to discharge Hurt. Wall decided to discharge Hurt at
about 5:30 p.m. on Friday, September 28, when he learned
the extent of the damage resulting from the September 27 in-
cident. He waited until Monday because he wanted Hurt to
complete his shift for the week. Otherwise he would have to
pay an unscheduled employee overtime to complete the shift,
or do the work himself. However this would not explain why
Wall did not discharge Hurt at the end of his shift on Satur-
day, but instead terminated him on Monday, i.e., after the
union meeting. As indicated, Wall was at work and in his
office on September 29. Wall further testified that he did not
consult with or notify his superior, General Manager
Webber, before discharging Hurt. He testified that he did
take into consideration prior conversations with Webber con-
cerning Hurt, including one which took place shortly after
the September 27 incident, which Wall regarded as reflecting
on his management skills unless he terminated Hurt. Webber,
who was presented as a company witness, also testified that
Wall did not consult with or notify him before discharging
Hurt. Webber testified that on three or four occasions he dis-
cussed Hurt’s work record with Wall, and referred to Hurt
as Wall’s ‘‘bride,’’ meaning a relationship wherein a super-
visor gives extra consideration to an employee and keeps the
employee on longer than is normal. Webber testified that fol-
lowing the September 27 incident he told Wall ‘‘that it
seemed as through everything that has come up in our acci-
dent reports lately has involved his bride,’’ and, ‘‘how long
are you going to tolerate your bride?’’ Wall and Webber did
not, in their testimony, indicate whether they discussed the
matter of union activity. Their testimony concerning the ab-
sence of any discussion about Hurt between September 28
and Hurt’s discharge on October 1 is incredible. Webber was
responsible for labor relations matters. On September 29,
Wall was ‘‘shocked’’ to learn of an organizational campaign
among the Company’s employees, and that Hurt was playing
a leading role in that campaign. In these circumstances it is
unlikely that Wall would proceed ahead and discharge Hurt
without first consulting with Webber and obtaining instruc-
tions or at least guidance from him. I find that Wall did con-
sult with Webber, and that their discussion was not limited
to Hurt’s work record, but included Hurt’s union activity. As
indicated, Webber testified that he said it seemed that ‘‘ev-
erything that has come up lately in our accident reports’’ in-
volved Hurt. In support of its contention that Hurt was dis-
charged because of accumulated incidents involving damage
to equipment and unsatisfactory work, the Company pre-
sented in evidence, through Wall’s testimony, alleged typed
‘‘equipment damage reports’’ involving Hurt. These alleged
reports were dated and purportedly signed by Wall as of the
date of the incident involved. The General Counsel presented
the alleged equipment damage reports in evidence, which in-
volved other employees. No report predated May 13, 1990.
Wall testified that the reports were prepared by his secretary
within 2 or 3 days of each incident, on the basis of informa-
tion furnished by him and comments from employees. None
of the reports involving Hurt were signed by him, although
the forms contain a space for employee signature and date.
Only one report predating December 1990 involving any
other employee, was signed by the employee (July 15 inci-
dent involving Steve Kilgore and damage to a rented tanker
truck). Wall testified that the Company is ‘‘now’’ starting to
have employees sign the reports. According to Wall, the em-
ployees knew that the reports were made, although he admit-
ted that he did not always show them the reports. Wall fur-
ther testified that he did not prepare the reports in all cases
involving damage to property, but only cases involving seri-
ous damage, and he had no objective standard for deter-
mining what constituted serious damage. Wall testified that
the cost of damage for incidents involving Hurt totaled
$14,806.21, and that the next highest total for any employee
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was $952.49 (James Scott). Hurt testified that he saw his per-
sonnel file 4 or 5 days before his discharge, and the file did
not contain any equipment damage reports or anything else
critical of his work.
On consideration of the purported equipment damage re-
ports, and related documents and testimony, it is evident that
the reports involving Hurt are fabrications prepared after
Hurt’s discharge, in an effort to rationalize that discharge.
The latest alleged incident (September 29) is illustrative. The
pertinent report indicated that while cleaning out the ladle pit
Hurt ran over a sharp object and damaged the loader’s left
front tire. According to the report, Hurt used poor judgment
by parking the machine without checking it for damage (al-
though this would be after the damage had occurred). The
Company did not present any witness who allegedly ob-
served the incident. Hurt testified in sum as follows: He fin-
ished digging out the slag pit and parked the loader alongside
the road. Wall, who was standing nearby, commented that he
heard something. They walked over to the tire and saw that
it was losing air. Wall said he would call the tire company,
and he did not reprimand or criticize Hurt. Flat tires are
common because of the presence of scrap steel everywhere.
This was the first time Wall had a flat tire, although some
employees had as many as two flat tires in 1 week. Hurt tes-
tified as to the names of employees who had flat tires on the
job. Employee Russell Wethington, a General Counsel wit-
ness, and employees Via and Scott, who were called as com-
pany witnesses, corroborated Hurt’s testimony in this regard.
Via, the Company’s best and most experienced operator, tes-
tified that flat tires were more common on trucks than load-
ers, but that on one or two occasions he had flat tires on the
loader, including one in the summer of 1990, due to his care-
lessness, in which he ran over a piece of pipe. Wall verbally
reprimanded him about the incident. Scott testified that flat
tires were common during the summer of 1990, as many as
three or four per week, mostly on trucks but also on loaders.
Wethington testified that Wall became angry about damage
incidents, including flat tires, and would say he ought to get
rid of the employee, but that the employees did not take him
seriously. Notwithstanding the frequency of flat tires, the
Company’s alleged equipment damage reports do not include
incidents of flat tires prior to Hurt’s discharge. It is evident
that Wall did not regard such incidents as serious. Wall testi-
fied that the September 29 incident cost the Company
$1640.67 for a recapped tire. (He initially testified that it also
cost $437.12 for a slick cap and repair, but subsequently ad-
mitted this was an unrelated charge.) The invoice indicates
that the Company ordered the tire on September 21, 8 days
before the incident. I credit Hurt. I find that Hurt was not
at fault in the incident, Wall knew he was not at fault, the
Company failed to show what if any damage it sustained in
the incident, and the incident casts doubt on the validity of
the alleged equipment damage reports involving Hurt.
A purported equipment damage report involving Hurt
dated July 17, is particularly demonstrative of the contrived
nature of these reports. The reports indicate that the Com-
pany purported to number the reports involving each em-
ployee in chronological order, by date of incident. For exam-
ple: for employee James Scott there are reports numbered 1
through 4, dated respectively July 19, September 18 and 26,
and December 17; for Hurt, the July 17 report is numbered
2; two other reports, both allegedly involving incidents on
June 28, are numbered 3 and 4; and the next purported re-
port, numbered 5, is dated August 30. Wall did not explain
this discrepancy. It is evident that Wall was reaching back
into his memory to dredge up anything and everything he
could think of to impugn Hurt’s record. As will be discussed,
one of the alleged June 28 incidents actually occurred about
3 months earlier, when Wall had no secretary and did not
even claim to have such a thing as equipment damage re-
ports.
Alleged report 2 (dated July 17) states that Hurt ran over
and smashed a 55-gallon drum with the loader, rendering it
unusable. According to the report, Hurt was not paying atten-
tion to his surroundings while operating the drum was owned
by Tri-County Petroleum, and the Company ‘‘will be respon-
sible for the damages.’’ Wall, in his testimony, admitted that
he had no personal knowledge of the incident. He initially
testified that to his knowledge the drum was damaged very
severely and the contents (antifreeze) were not used. He sub-
sequently testified that possibly some of the contents were
used after the incident. (If as indicated by the purported re-
port, the drum was ‘‘smashed,’’ there would be nothing left
to use.) According to Wall, the barrel cost $187 and drum
core $20. However the Company presented no evidence that
it purchased another drum or reimbursed Tri-County Petro-
leum for the cost of a drum. Hurt testified in sum as follows:
He is not sure of the date, but recalls the incident. He was
backing up a tire loader when he struck and slightly dented
the top of the barrel. A small amount of antifreeze spilled
out, but otherwise the contents were undamaged. He offered
to reimburse Wall for the barrel, but Wall laughed it off, and
did not criticize Hurt. Hurt subsequently gave the Company
four abandoned barrels which he found in good and usable
condition. Employee Tom Via testified that on one occasion
during Hurt’s tenure, he (Via) struck and destroyed a 55-gal-
lon oil drum. The contents were lost. Wall verbally rep-
rimanded Via about the accident. There is no equipment
damage report for this incident. If Wall did not write up Via,
then it is difficult to see why he would make a written report
for the Hurt incident. I credit Hurt. I find that Wall attached
no significance to the barrel incident, did not reprimand Hurt
verbally or in writing, and that the Company sustained no
loss as a result of the incident.
Alleged damage report 3 states that Hurt damaged the left
door, left door mirror, and bracket assembly of a truck
owned by another firm. The report asserts that the accident
was caused by Hurt’s negligence, in that he was not paying
enough attention to his surroundings in order to give himself
enough room to clear the semitruck while driving around the
parked truck. The report states that the paperwork for pay-
ment of the damage ($260.01) was processed on August 20,
a strange notation for a report allegedly prepared within 3
days of June 28. Report 4 states that on the same day (June
28) a track loader ‘‘caught on fire, doing severe damage to
wiring, hoses and radiator which costs a considerable amount
to repair.’’ According to the report Hurt used poor judgment
while operating the loader inside the furnace pits, because he
was warned ‘‘numerous times’’ of the danger in driving
equipment over the top of hot material, and had prior knowl-
edge of the proper procedure, ‘‘which is push up all hot ma-
terial and not to drive up on top of it.’’ As with most of the
alleged reports involving Hurt, they constitute diatribes
against Hurt, replete with accusations of negligence and poor
941WHITESVILLE MILL SERVICE CO.
judement, and assertions that Hurt was repeatedly warned
about specific improper procedures. These reports ostensibly
date back to May 13. The reports are particularly strange and
suspicious when one considers that according to General
Manager Webber, Hurt was Wall’s ‘‘bride.’’ If so, then it is
difficult to see why Wall would place such denunciatory re-
ports in Hurt’s personnel file. This is particularly true when
one compares the alleged reports involving Hurt with the
much more moderate language used in reports involving
other employees. As will be discussed, a file memo con-
cerning employee Steve Kilgore, is a more accurate reflec-
tion of Wall’s attitude toward Hurt. In fact, the Company had
no safety procedure or systematic method of informing em-
ployees of proper or safe procedures. Employees informally
learned from other employees on the job. No witness testi-
fied that the Company issued written safety instructions to its
employees. Russell Wethington testified that he never re-
ceived formal safety instructions or safety rules. James Scott
testified that other operators told him to check fluid levels,
but no one told him to check the radiator guard. I do not
credit the assertions in the alleged equipment damage reports
that Hurt was repeatedly warned about various improper pro-
cedures.
With regard to report 3, Plant Manager Wall testified in
sum as follows: He questioned Hurt about an incident on
June 28 involving damage to a vehicle. Hurt was driving an
off-the-road vehicle. Semitrucks (not belonging to the Com-
pany) were parked along the roadway within Nucor’s prem-
ises. A piece of steel hanging off the side of Hurt’s truck
tore off a mirror and damaged the door of a parked vehicle.
Wall does not recall Hurt offering to pay for the damage
(which cost $260.01). Despite prodding from company coun-
sel, Wall was noncommittal about whether he reprimanded
Hurt, testifying as follows:
Q. Did you discipline Mr. Hurt as a result of the
damage he did on June 28th?
A. I questioned him of the damage done to the vehi-
cle and I think he admitted that he used poor judgment
in doing that.
Q. You counselled him, would that be an accurate to
describe it?
A. I investigated the accident.
Q. You did not issue him any written reprimand or
suspension as a result of this?
A. Just a verbal.
Hurt testified in sum as follows: He was removing a large
piece of steel from the ladle cleanout pit to the slag proc-
essing area, operating a dump truck. The steel piece, about
20 feet wide, was overhanging about 10 feet on his right
(blind) side. At that time there was only a one-lane road
around Nucor’s premises. Hurt thought he had enough clear-
ance, but the steel piece caught the mirror of the semitruck,
pulling it off. Hurt reported the accident to Wall, who told
him to get necessary information from the operator of the
semitruck. Hurt offered to pay for the damage, but Wall de-
clined the offer, telling Hurt: ‘‘don’t worry about it, be more
careful.’’ The Nucor road was subsequently widened. I credit
Hurt. I find that Wall felt Hurt could have exercised more
care, but did not regard the matter as important, attaching
significance to it only after he discharged Hurt.
Regarding the matter of alleged fires involving Hurt, the
Company’s testimony and purported records were hopelessly
confused and contradictory. General Manager Webber testi-
fied that Hurt was involved in three fires (although he had
no personal knowledge of any of them). In the unemploy-
ment compensation hearing, Plant Manager Wall testified
that Hurt was involved in two fires, one on June 28 and the
second on August 30. The alleged equipment damage reports
involving Hurt refer to only two fires, allegedly on June 28
and August 30, respectively. The only reference to the date
of July 17 concerns the drum of antifreeze. Nevertheless
Wall testified that Hurt was involved in two fires, the first
on June 28 and the second on July 17. He did not witness
either fire. Wall testified in sum as follows: With regard to
the first fire, he learned about it by investigating and dis-
cussing it with Hurt and employee Steve Kilgore (who was
not called as a witness in this proceeding). Hurt said that the
track loader caught fire when he was removing material from
the ladle cleanout pit. On the basis of what Wall learned
from Kilgore, he concluded that Hurt should have moved the
loader farther away from the pit when Nucor was pouring
molten steel. Instead Hurt parked within the doorway of the
pit, about 10 feet from the pit, where sparks and chunks of
metal were flying, and this caused the fire. The loader did
not have a cracked fuel tank, although another loader, not in-
volved in a fire, did have a cracked fuel tank. Wall did not
reprimand Hurt, but put an equipment accident report in his
file. The second fire occurred at the south slag pit. Hurt told
him that the machine caught fire. Wall concluded, from ob-
serving Hurt at work, that Hurt drove upon the hot material
instead of keeping it in front of him. In such circumstances
the steel tracks carry the hot material to the engine compart-
ment of the loader, where it falls into the engine compart-
ment, and could thereby cause a fire. Wall then warned Hurt
not to do this. The loader may have had a fuel line leak.
Wall’s description of the first alleged fire was similar to that
contained in the alleged equipment damage report dated Au-
gust 30, except that Wall never testified that he warned Hurt
‘‘numerous times’’ about not moving equipment completely
out of the ladle cleanout pit. Wall’s description of the second
alleged fire is similar to that contained in the alleged report
dated June 28, except that Wall never testified that Hurt
‘‘had been warned numerous times’’ of the danger in driving
equipment over top of hot material. In support of its varying
assertions, the Company produced purported records of the
costs incurred in connection with the fires. These included
use of a fire extinguisher service on July 9. One invoice pur-
ported to involve inspection of a fire on June 29, but no
work was performed at that time. Another invoice included
installation of a new radiator on July 5. Another invoice indi-
cates that hoses, fire sleeves, and related equipment were
shipped to the Company on August 29 (1 day before the al-
leged August 30 fire). Other invoices are dated on August
30 or in early September. Employee Tim Via testified that
in the spring of 1990 his loader caught fire, caused by a fuel
leak. As a result he was briefly hospitalized, and the loader
lines were slightly burned. Wall did not blame him. There
is no reference to that incident in the alleged equipment dam-
age reports. If all this proves anything, it is that equipment
fires were not unusual at the Company, and that they did not
all involve Hurt.
942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Morgan has been convicted of dealing in marijuana, a mis-
demeanor. I am not persuaded that this impugns his credibility. See
Fed.R.Evid. 609; Ideal Donut Shop, 148 NLRB 236, fn. 1 (1964).
Hurt testified in sum as follows: He was involved in two
fires. The first probably occurred in early March, and the
second probably on August 30. With regard to the first, Hurt
was operating a track loader in the slag pit, digging up slag,
when he saw fire behind him. The fuel tank was burning.
Hurt found a vertical crack in the tank, extending about 60
percent of the height of the tank, and the tank was leaking
fuel. Russell Wethington, who was then acting mechanic,
subsequently told Hurt not to fill the tank more than halfway,
because of the crack. The employees continued to operate the
loader with the crack, because Wall told them simply not to
fill the fuel tank more than halfway. Hurt never discussed the
fire with Wall. It is not possible to avoid hitting hot slag,
because the slag crumbles into small pieces. All the operator
can do is to clean out the pit as quickly as he can. Russell
Wethington substantially corroborated Hurt’s testimony.
Wethington testified in sum as follows: The fire occurred
about April 1. Wall asked him to check into it. Wethington
examined the loader, and found a crack in the fuel tank. He
was not previously aware of the crack. He concluded that the
fire was caused by fuel running out of the tank, and so in-
formed Wall. There was no damage to the loader. After the
fire the employees were instructed to fill the tank only half-
way. The Company continued to use the loader with the
crack, and was still using it when Wethington quit his job
(June 14, 1990). I have no reason to question Wethington’s
credibility. I find that the fire occurred about April 1, that
it was caused by a leak in the fuel tank, that Wall knew this
to be the cause, but continued the loader in use, and that
Hurt was not involved in any other fire until August 30.
Wall had no secretary at the time of the first fire, and there-
fore would not have prepared an ‘‘equipment damage re-
port’’ even if he were inclined to do so.
Regarding the second fire, Hurt testified in sum as fol-
lows: He was operating a track loader in the ladle cleanout
pit. The machine had been down. Earlier that day he heard
then mechanic Mark Morgan tell Wall there was a leak in
the fuel line. Wall told him to have Hurt operate the machine
anyway. Hurt proceeded into the pit and was digging out a
large piece of steel when the sirens went off, indicating that
Nucor was about to pour. Hurt set down the steel and backed
out of the pit. Nucor poured hot molten steel on top of the
piece of steel. Hurt waited for the steel to cool, and went
back into the pit. A construction worker saw fire shooting
out from under the machine, and alerted Hurt. Hurt struggled
to put down the large piece of steel, but by the time he did
so and backed out the machine was engulfed in flames.
Hoses were bursting, antifreeze spraying, and Hurt fell from
the machine, but was not injured. Steve Kilgore, who was
working with Hurt, was able to extinguish the fire. Mark
Morgan came to the scene. Hurt told him that the machine
had a fuel leak (which Morgan knew), and this caused the
fire. When Plant Manager Wall arrived, he told Hurt that
Morgan was to blame, because he failed to clean out the
belly pan, leaving fuel in it, and that he ought to fire Morgan
for this. Morgan, who was presented as a company witness,
testified in sum as follows: the fire occurred at the south
ladle cleanout pit. He arrived 10 to 15 minutes after the inci-
dent. The loader was parked about 20 feet outside the drive-
way entrance to the pit. To Morgan’s knowledge, the loader
did not have a major fuel leak, although an insignificant
amount of oil might leak out. When Nucor is ready to pour,
lights flash and sirens sound, and 8 to 10 minutes elapse be-
fore Nucor pours. There is a red line around the pit, and
when the sirens sound, the operator should move his machine
beyond the red line. Morgan asked Hurt what happened. Hurt
said that when the sirens sounded, he was pulling out a large
piece of steel. He struggled to move the steel to a safe area,
but before he could do so Nucor began pouring. The hot
molten steel splattered, hitting the machine, and some hit the
fuel line, causing the fire.
I have no reason to question Morgan’s credibility.4 I credit
his testimony. I find that Hurt remained too long in the pit
area, and this was the principal cause of the fire. However
I also credit Hurt’s testimony to the effect that instead of
blaming Wall’s ‘‘bride,’’ Wall told Hurt that Morgan was to
blame, although he did not intend to do anything about the
matter. (As indicated, Wall testified that he did not rep-
rimand Hurt about parking his equipment too close to the
pit.) Wall chose to blame Hurt only in retrospect, after he
discharged Hurt.
The Company presented in evidence an alleged equipment
damage report, dated May 13, involving Hurt. The report
states that Hurt, while operating a track loader, cleaning out
the ladle cleanout pit, pushed a chunk of material against and
over the north bunker wall, causing severe damage to the
wall. The chunk landed on a walkway outside the pit. Ac-
cording to the report, the damage was caused by Hurt’s poor
judgment and unsafe act, in that he ‘‘was warned numerous
times about pushing material up against the bunker wall.’’
The report states that Hurt was given disciplinary action of
‘‘one week from work without pay,’’ and that Nucor was no-
tified of this action. The Company also produced another
purported equipment damage report, also dated May 13, in-
volving Russell Wethington. The report states that
Wethington was operating a loader when he backed off into
a drainage ditch just outside the north furnace pit. According
to the report, Wethington attempted to extricate the loader,
without asking for assistance, by maneuvering the loader
back and forth, and in the process caused considerable dam-
age to Nucor’s water system and completely destroyed a
water valve box located by the drainage ditch. The report
states that Wethington was warned of the seriousness of the
damage he caused, given disciplinary action of 1 week from
work without pay, and Nucor was notified of the action
taken.
Plant Manager Wall testified in sum as follows: On May
13 Nucor notified him of unsatisfactory work and safety pre-
cautions not taken, resulting in damage to the wall of the
ladle cleanout pit. Concrete was broken and debris and steel
pushed over the wall and onto the walkway. He did see the
incident, but Hurt told him he caused the damage. The wall
had previously been cracked. Employees do not bang the
ladle up against the wall in order to remove steel. Wall does
not know what Wethington was doing at this time. The dam-
age allegedly involving Wethington was a separate incident.
Neither employee was specifically assigned to the loader.
Normally when two employees work together, one operates
the loader, and the other first wets down the area and after-
wards hauls away the slag in the truck. The Company has
943WHITESVILLE MILL SERVICE CO.
not yet received an invoice for the alleged damage to the
wall. (As more than a year elapsed between the incident and
the present hearing, it is evident that the Company did not
incur any cost as a result of the incident.) Hurt testified in
sum as follows: On the date in question (about May), he and
Wethington were working together, with Wethington as load-
er operator and Hurt as truckdriver. Hurt sprayed down the
slag, but Wethington was having difficulty lifting a large
piece of steel. Hurt took over the loader and tried, but was
also unsuccessful. Wethington returned to the loader and re-
moved the steel by pushing it up and over the wall. The op-
eration did not cause damage to the wall. However the wall
had previously been damaged by Nucor employees, who
sometimes would bang ladles against the wall to knock off
steel pieces which failed to completely fall into the pit.
About 3 p.m. that day Wethington said he backed into a
ditch and hit the water line, and asked Hurt to help him. Hurt
did. As they were working to pull out the loader, Wall came
up, visibly angry. He told them ‘‘I can’t have this, I am
going to have to lay you guys off for a few days.’’
Wethington testified in sum as follows: On May 13 he was
operating the track loader and Hurt was operating the truck.
They were cleaning the ladle cleanout pit. No large chunks
came off the wall, although (as testified by Hurt) the wall
had previously been damaged. Wethington also testified con-
cerning his backing into a ditch. Without going into detail,
it is sufficient to note that Wethington apparently slid in mud
around the ditch. (Grass has since grown or been planted
around the ditch.) Wethington further testified that Wall sus-
pended him and Hurt for 1 week, allegedly for destruction
of Nucor property. However Wall gave them both vacation
pay for the week, and consequently they lost no wages.
It is evident from the testimony of Hurt and Wethington
that Wethington operated the loader on May 13. Therefore,
if there was any fault on the part of an operator (and I need
not make such determination) the fault would be that of
Wethington. Plant Manager Wall was largely indifferent to
accidents on the job, unless they resulted in complaints from
Nucor, the Company’s bread and butter. Wall sought to ap-
pease Nucor by notifying Nucor that he would sternly dis-
cipline his employees. However, Wall also recognized the
difficulty of the employees’ work. He then proceeded to ap-
portion blame between Hurt and Wethington, and administer
a token discipline by giving each a week off with pay.
Wall testified in sum as follows: On September 8 Hurt
failed to remove slag from the north slag pit. Operators nor-
mally remove slag every 3 to 4 hours, with each removal
taking 45 to 60 minutes, depending on the amount of produc-
tion. Although not all slag is removed each time, enough
must be removed so as not to interfere with the production
of steel. This was not done. Wall was not present at the time.
Hurt worked a shift from 5 a.m. to 1 p.m. No company em-
ployees were scheduled to work from 1 to 5 p.m., but Nucor
probably dumped slag during this period. Shortly after 1
p.m., Nucor left a message at Wall’s home. Wall returned the
call at about 2:30 p.m. Nucor told him that the pit was not
cleaned and slag overflowed, interrupting production. Nucor
used its own employees to remove the slag. Wall discussed
the matter with employees Hurt and Steve Kilgore. He told
them the production interruption was a serious matter, Nucor
would not put up with that kind of service, and (gesturing
with a finger and thumb about an inch apart), indicated that
they were this close to being discharged. If company em-
ployees do not finish their job at the end of their shift, they
must remain until relieved or the job is finished, including
overtime if necessary, because the Company must provide
Nucor with service. Hurt had previously done this. The Com-
pany identified, as its alleged record, a memo in Kilgore’s
personnel file dated September 8. The memo stated that Kil-
gore left work without completing his duties, and that he and
another (unnamed) employee failed to thoroughly clean the
north and south furnace pits, causing interruption to Nucor’s
production. The memo stated that both employees were rep-
rimanded with a warning that they were very close to being
discharged for their actions. There was no alleged memo or
other notation in Hurt’s personnel file. Hurt testified in sum
as follows: On September 8 he worked his shift from 5 a.m.
to 1 p.m. When he completed his shift the pits were clean.
Two days later Wall summoned him and Kilgore about the
pits. The employees explained that they cleaned the pits, but
that Nucor had visitors the previous day. This meant that the
Company could not dig slag that day, because of the amount
of smoke and dust generated during the operation. As a re-
sult the slag hardened, making it more difficult to remove.
Nucor poured more steel on top of the existing slag. Nucor
shuts down steel production each Wednesday, in order to en-
able the Company to do a thorough cleaning. (September 8
was a Saturday.) Wall said ‘‘I am this close to sending you
guys home.’’ He said he would clean the pits himself. Hurt
offered to help, but Wall told him not to worry, adding,
‘‘let’s forget all about this.’’ Wall and two or three other em-
ployees proceeded to clean the pits, and 24 hours later they
were still working on it. Hurt and Tim Via completed the
cleaning. Hurt would normally remain beyond the end of his
shift if it appeared that more cleaning was necessary to avoid
a problem with mill operation. However, there must be com-
pelling need or else he would get chewed out for taking
overtime.
In the absence of testimony from Nucor personnel, Wall’s
testimony amounts to little more than self-serving hearsay.
There is no probative evidence as to what if any interruption
to production occurred on September 8. Wall’s reaction to
the situation was typical of him. He was indifferent about ac-
cidents or mishaps on the job unless they involved a com-
plaint from Nucor. In this case, as with the alleged damaged
pit wall, he immediately sought to appease Nucor by blaming
and purporting to sternly discipline company employees,
while simply giving them a slap on the wrist. Wall sought
to impress Nucor by placing a memo in Kilgore’s personnel
file. It is unnecessary to decide whether Wall told the em-
ployees he was close to sending them home or close to dis-
charging them. Wall sometimes threatened to fire employees,
but no one including himself took such threats seriously.
Wall put nothing in Hurt’s personnel file, and did not even
mention his name in the Kilgore memo. It is evident that as
of September 8 Wall regarded Hurt as a valued employee,
and did not regard the incident as a reflection on Hurt’s
qualifications. In June 1990 Wall gave Hurt a day off with
pay as a reward for good work. Hurt was neither a personal
friend or relative of Wall. If Hurt was Wall’s ‘‘bride,’’ it
was, as indicated because Wall valued him as an employee.
The remaining alleged incident leading to Hurt’s discharge
is the subject of a purported equipment damage report dated
September 27. Even on the basis of Plant Manager Wall’s
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
testimony it is evident that this report was prepared after his
decision to fire Hurt. The report states that the radiator of a
loader was damaged beyond repair, and the radiator and radi-
ator guard had to be replaced. According to the report, Hurt,
while removing slag from the south furnace pit, continued to
operate the machine (B-76) after the radiator guard came
loose, the guard swung open and shut, caught on the lift
arms of the bucket, and the damage was ‘‘severe and cost-
ly.’’ The report stated that Hurt was warned ‘‘numerous
times’’ of his responsibility to check the machine before it
was operated. As discussed, the Company never gave such
warnings. The only arguably relevant repair bill produced by
the Company, consisted of a repair bill, dated October 6,
from A-1 Radiator, Inc., which included repair to front end
of radiator ($50) and building a grill ($225). In sum, on the
basis of the Company’s own alleged records, the incident
cost the Company slightly over one-twentieth of the amount
claimed by Wall ($5074.55).
Plant Manager Wall testified in sum as follows: On Sep-
tember 27 Hurt worked the shift from 10 a.m. to 10 p.m. The
incident in question occurred at about 8 p.m. An employee
called to report that a machine was down due to radiator
damage. The next morning Wall came in and examined the
vehicle, a track loader. He asked Hurt what happened. Hurt
said the radiator guard came loose and he ran into the radi-
ator. Wall believes he asked Hurt if he examined the vehicle
before operating it, but does not remember his answer. He
believed Hurt was at fault, because (1) Hurt should have
checked the machine before operating, and would have seen
any missing or loose bolts, and (2) he should have stopped
the machine when the guard came loose, and thereby would
have prevented the damage to the machine and radiator. He
did not discipline Hurt at this time because he did not ‘‘no-
tice how serious it was.’’ Wall did not claim that he even
told Hurt that he did anything wrong. However, Wall called
Webber, who asked him how long he was going to put up
with his bride. Brandeis Equipment Company arrived at
about 11 a.m., tore down and examined the loader, and about
5:30 p.m. told Wall the extent of the damage. At this time
Wall decided to terminate Hurt. He based his decision on ac-
cumulated incidents of damage to equipment and unsatisfac-
tory work. In the unemployment compensation proceeding,
Wall testified that the September 27 incident, standing alone,
probably would not have been grounds for discharge.
Hurt testified in sum as follows: The incident probably oc-
curred on September 27. He was cleaning out the north slag
pit with a track loader. He checked fluid levels and inspected
the loader before operating. He saw nothing wrong with the
grill, and the guard was not ajar. The machines had places
for 4 to 8 bolts per radiator, but were ‘‘real old machines’’
and ‘‘pretty well beat up’’ and in places so ‘‘twisted you
can’t get bolts up through it.’’ One or two bolts were miss-
ing, but could not be replaced because of the twisted grill.
The machine had been operated like this for months. As he
was backing out of the pit, the air was very dusty and greatly
reduced his view. He saw that radiator guard was twisted and
caught between the arms of the loader. He lifted the bucket
to dump out slag, and saw the radiator had a hole through
which fluid was leaking. Hurt twisted the machine around to
get it off the road, and asked a subcontractor at the office
to notify Wall. Wall said nothing to him about the incident
until Wall discharged him. Steve Lewis, who was working
with Hurt that day, testified as a reluctant company witness.
Lewis testified that Hurt had his bucket in the air, ready to
dump slag in Lewis’ truck, when both of them saw that the
whole grill was off the machine. Lewis testified that he did
not know whether Hurt could have avoided the accident.
Russell Wethington testified that Wall knew there were track
loaders with missing or broken grill bolts. Employee James
Scott testified that the Company now has the grills bolted
down on both sides, instead of only on one side, thereby pre-
venting the grill from swinging open as it did on September
27.
Whether Hurt could have done anything to prevent the ra-
diator guard from swinging open, or to prevent damage to
the radiator once it did so is a close question upon which
reasonable persons could disagree. Wall’s professed conclu-
sions in this regard were based on speculation. However,
Wall’s actions were inconsistent with an intent to discharge
or even discipline Hurt in whole or in part because of the
incident. As of the morning of September 28 Wall knew all
he had to know about the matter. On the basis of his own
testimony, he was satisfied as of that time that he knew how
the accident occurred, and that Hurt could have prevented the
accident and the ensuing damage. If Hurt saw that there was
a hole in the radiator, then Wall must have also seen it. Hurt
did not claim, nor did the Company show, that it received
any estimate of repair costs prior to Hurt’s discharge. Never-
theless Wall said nothing to Hurt on September 28 or 29 to
suggest that Hurt was at fault in any way, or that Wall re-
garded the matter as serious. After Wall learned of Hurt’s
leading role in union activity, and his participation in the
Sunday union meeting, the incident took on a new life.
I find that the Company discharged Hurt because of his
leading role in the union campaign, and for no other reason.
As of the afternoon of September 29, Wall had no intention
of discharging or even disciplining Hurt, whom he regarded
as a competent employee. When Wall learned through his in-
former of the union organizational campaign, and that Hurt
was playing a leading or the leading role in the campaign,
Wall was ‘‘shocked.’’ Wall immediately notified his supe-
rior, General Manager Webber, who for the first time, and
because of the union activity, referred to Hurt as Wall’s
‘‘bride,’’ and demanded to know how long Wall intended to
tolerate his bride. Hurt’s union activity threatened the non-
union status not only of the Company, but also its customer
Nucor. Wall waited until after the union meeting, which con-
firmed Hurt’s leading role in the campaign, and then pro-
ceeded to discharge Hurt. Wall used the September 27 acci-
dent as an excuse, and dredged up anything and everything
he could use as adverse reflection on Hurt’s qualifications.
Wall prepared the ‘‘equipment damage reports’’ in such a
way as to suggest that Hurt was an incompetent and careless
employee. In fact, as of September 29 there was nothing ad-
verse in Hurt’s personnel file.
As indicated by the testimony of the General Counsel and
company witnesses, accidents and mishaps were common,
and often unavoidable in the Company’s operations. It is evi-
dent that the purported equipment damage reports involving
other employees represented only the tip of the iceberg.
There is only one such report involving Tim Via, the Com-
pany’s best and most experienced employee. However, Via
testified as to three or four other incidents, including some
which he or Wall attributed to his own fault. Hurt testified
945WHITESVILLE MILL SERVICE CO.
5 An employer’s opposition to unionization may be considered in
a case of alleged discrimination which turns on a question of em-
ployer motivation, even if the employer’s statement or statements do
not in themselves constitute threats, promises, or other unlawful con-
duct. See Chicago Rivet & Machine Co., 275 NLRB 1298, 1301 fn.
7 (1985), and cases cited therein; West Meat Co., 244 NLRB 828,
830 (1979). Here, the Company was plainly opposed to unionization,
as evidenced by Wall’s statement to employee Duffy that he was
‘‘shocked’’ by the union activity.
6 In determining the merits of this case, I have in accordance with
Board policy, taken into consideration the decision of the Indiana
Department of Employment and Training Services on Hurt’s litigated
claim for unemployment compensation. In that proceeding the ap-
peals referee held that Hurt was not discharged for just cause and
was entitled to compensation benefits. The referee found that Hurt
was not at fault in six of the eight alleged instances of damage or
unsatisfactory work, and the remaining two did not involve substan-
tial damage or willful negligence. He also stated, without discussion,
that the evidence was not persuasive that Hurt was discharged due
to his union related activities. This latter finding lacks probative
value. During the unemployment compensation hearing Plant Man-
ager Wall, on instructions from company counsel, refused to answer
questions concerning his knowledge of union activity. Therefore the
referee lacked an adequate record on which to determine the matter.
without contradiction as to several instances in which Wall
himself damaged equipment or Nucor property, although
Wall seldom operated equipment. If Hurt had more accidents
than other employees, it was because he had relatively longer
tenure, being among the Company’s first employees. Never-
theless, Hurt was the only employee ever discharged by the
Company. Company counsel strove mightily, prodding his
witnesses with leading questions, but no employee witness
characterized Hurt as an unsatisfactory employee. Tim Via
testified that Hurt’s accident record was probably a little
worse than others at times, that sometimes he acted like he
didn’t care, but others also sometimes acted that way, that
Hurt was a little hard on equipment, but ‘‘you would have
to be that way in some situations,’’ and that Hurt sometimes
ran his machine in third gear, but that he has also done this
(which could cause the machine to take a beating). The
Company now has chains on its tire loaders. Steve Lewis tes-
tified that he never said that Hurt didn’t care, and that he
never saw Hurt leave the job without completing his work
or leaving a mess for others. Lewis testified that ‘‘we don’t
have near the problem that we had when Roy was there’’ but
indicated that this related to new and improved equipment
and resolution of grievances. On the basis of the Company’s
knowledge of Hurt’s union activity, the Company’s hostility
to unionization, as demonstrated by Wall’s remark that he
was ‘‘shocked’’ by the union activity, the timing of Hurt’s
discharge, and the absence of any evident legitimate grounds
for discharge between the time Wall learned of the union ac-
tivity, and the discharge, General Counsel presented a prima
facie case that the Company discharged Hurt because of his
union activity.5 As the Company’s asserted reasons for dis-
charge were demonstrably false or pretextual, it follows that
the Company failed to meet its burden of establishing that
it would have discharged Hurt in the absence of his protected
activity. However I do not credit Hurt’s testimony con-
cerning the alleged threats by Wall in August and at the time
of discharge. As indicated, Hurt gave a different version of
discharge interview in the unemployment compensation hear-
ing, and his testimony concerning the alleged August threat
was contradicted by John Mills. I have no reason to question
Mills’ credibility. Therefore I am recommending dismissal of
the pertinent complaint allegations.6
For the foregoing reasons, I find that the Company vio-
lated Section 8(a)(1) and (3) of the Act by discharging Hurt.
The Company proffered evidence of an incident occurring on
Saturday, March 16, 1991, which is the subject of a pending
civil lawsuit by Wall against Hurt for alleged assault and bat-
tery. The Company does not discuss the matter in its brief.
However, the Company evidently proffered the testimony in
order to show that even if Hurt were unlawfully discharged,
he should be denied the usual remedy of reinstatement with
full backpay. The General Counsel suggested that I could
defer the matter for compliance, if the cases should reach
that stage. The General Counsel does not contend that I am
required to do so. I ruled that I would hear the matter, and
I shall now proceed to decide the matter.
Plant Manager Wall testified in sum as follows: He went
to purchase gas and lotto tickets. After getting gas he pro-
ceeded to another station (Super Test) to get the tickets. As
he was pulling out of the first station, another truck pulled
close to his. Hurt was driving. When Wall arrived at the
Super Test station, Hurt was sitting in his truck which was
parked across the street. Wall went into the station store to
purchase his tickets. When Wall came out, he saw Hurt’s
truck backed in alongside Wall’s. As Wall proceeded to his
truck, Hurt jumped out of his truck, grabbed Wall by the
shoulder and struck Wall in the jaw with his fist. Wall
backed away. Hurt said: ‘‘When this shit is over, I’m going
to break every f—king bone in your body.’’ Hurt began curs-
ing Wall’s mother. Wall went back into the station store.
Hurt left, and Wall reported the incident to the local police.
Hurt testified in sum as follows: He was driving his truck
in a northerly direction on Washington Street in Craw-
fordsville, accompanied by one Dan Surface. Wall was pro-
ceeding south when Surface noticed that Wall was giving
Hurt the finger. Hurt went around the block and proceeded
to the Super Test station because Surface wanted to purchase
a lottery ticket (drawing was scheduled for 7 p.m. that
evening). He did not go there to confront Wall. He parked
parallel to Wall’s truck, which was facing the opposite direc-
tion about 10 feet from his truck. Surface went into the sta-
tion store and shortly thereafter Wall came out. Wall came
over to Hurt’s truck and Hurt got out. Hurt asked Wall
‘‘What’s your f—king problem?’’ (referring to the finger
gesture). Wall came up to Hurt, poked him in the chest and
said ‘‘Whitesville Mill is not paying you a fucking dime.’’
Hurt then slapped Wall’s hand away from him, catching
Wall’s left cheek with the back of Hurt’s left hand. Surface,
who had just emerged from the station and was 30 to 40 feet
away, saw the slap. Hurt told Wall that if he ‘‘ever laid a
hand on me again I’d break every f—king bone in
[Wall’s]face.’’ Hurt said nothing about Wall’s mother. Wall
did not stumble or fall. He mumbled something and returned
to the store. Surface suggested that they go to the police, but
Hurt said it was ‘‘no big deal.’’ The next day, at police re-
quest, Hurt gave a statement. There were no criminal
charges.
Daniel Surface, who was presented as a General Counsel
witness, substantially corroborated Hurt’s testimony to the
extent that he observed the events. Surface testified in sum
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Under New Horizons, interest on and after January 1, 1987 is
computed at the ‘‘short-term Federal rate’’ for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621.
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
as follows: He was with Hurt, who was driving his truck
north on Washington Street, taking Surface to visit a job.
Surface knows Wall well enough to recognize him. Surface
saw a red pickup truck go by with a guy in it ‘‘giving us
a hand gesture.’’ Surface asked who it was. Hurt looked and
said he thought it was Wall. Surface asked Hurt to take him
to the Super Test station so he could get a lottery ticket.
(Surface purchases a ticket there every week.) They did not
follow Wall. Hurt parked toward the edge of the station. Sur-
face went into the store while Hurt remained outside. Surface
saw the red pickup truck, with no one inside. Wall was in
the store, and he left when Surface entered. Surface made his
purchase and left. As he turned the corner he saw that Hurt
and Wall were exchanging words. He heard Wall say that
Whitesville Mill wasn’t going to pay Hurt a damn dime.
Wall was poking Hurt’s chest. Hurt threw up his hand, catch-
ing Wall in the face with the back of his hand. Wall ran
back to the station, holding his hand to his face. Wall said
‘‘that’s what I wanted you to do, you’re going to jail.’’ Hurt
told Surface they had an argument, he was tired of Wall giv-
ing him shit, and he would ‘‘bust him in the head and break
every bone in his damn face the next time [Wall] tried to
put his hands on’’ him. It did not look like either Hurt or
Wall tried to hit the other.
Hurt and Wall were the principal witnesses in this pro-
ceeding. I have found neither to be wholly credible. Neither
version of the March 16 incident is inherently incredible. In
such circumstances, the testimony of a witness who has no
personal interest in the outcome of this case, is particularly
significant. Surface is such a witness. I have no reason to
question his credibility. I credit his testimony, and con-
sequently I credit Hurt’s version of the incident. I find that
Hurt did not engage in flagrant or outrageous conduct which
would render him unfit for employment. Wall twice pro-
voked Hurt; first by giving him the finger, and a second time
by poking him the chest in an insulting manner, which in
itself constituted an intentional unwanted touching, i.e., an
assault and battery. Hurt acted in reasonable self-defense,
with no intent to injure Wall, and he did not injure Wall.
Hurt is entitled to the usual remedy of reinstatement with
backpay. See Precision Window Mfg., 303 NLRB 946
(1991). Compare: E. I. Du Pont & Co., 263 NLRB 159
(1982).
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed them by Sec-
tion 7 of the Act, the Company has engaged in, and is en-
gaging in, unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
4. By discriminatorily discharging Roy Hurt, thereby dis-
couraging membership in the Union, the Company has en-
gaged in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed violations
of Section 8(a)(1) and (3) of the Act, I shall recommend that
it be required to cease and desist therefrom, to post appro-
priate notices, and to take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the Company discriminatorily termi-
nated Roy Hurt, it will be recommended that the Company
be ordered to offer him immediate and full reinstatement to
his former job or, if it no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any loss
of earnings and benefits that he may have suffered from the
time of his termination to the date of the Company’s offer
of reinstatement. The alleged ‘‘equipment damage reports,’’
placed in Hurt’s personal file after his discharge, were part
and parcel of the Company’s unlawful conduct. I shall rec-
ommend that the Company be ordered to expunge from its
records any reference to the unlawful termination of Hurt,
and all equipment damage reports or other memoranda re-
flecting adversely on his employment record, to inform Hurt
in writing of such expunction, and to inform him that its un-
lawful conduct will not be used as a basis for further per-
sonnel actions against him. Backpay shall be computed in ac-
cordance with the formula approved in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).7 The Em-
ployer shall be required to preserve and make available to
the Board, or its agents, on request, payroll and other records
to facilitate the computation of backpay due.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Whitesville Mill Service Co., Inc., a
wholly-owned subsidiary of Edward C. Levy Co., Inc.,
Crawfordsville, Indiana, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discouraging membership in Operating Engineers,
Local Union No. 841, International Union of Operating Engi-
neers, or any other labor organization, by discriminatorily
terminating employees, or in any other manner discriminating
against them with regard to their tenure of employment or
any term or condition of employment.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Roy Hurt immediate and 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
947WHITESVILLE MILL SERVICE CO.
9 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
other rights or privileges previously enjoyed, and make him
whole for any loss of earnings and other benefits suffered as
a result of the discrimination against him, in the manner set
forth in the remedy section of this decision.
(b) Expunge from its files any reference to the termination
of Roy Hurt, and all equipment damage reports or other
memoranda reflecting adversely on his employment record,
and notify him in writing that this has been done and that
evidence of this unlawful discharge will not be used as a
basis for future personnel actions against him.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due.
(d) Post at its Crawfordsville, Indiana office and place of
business, copies of the attached notice marked ‘‘Appendix.’’9
Copies of the notice, on forms provided by the Regional Di-
rector for Region 25, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
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 the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discourage membership in Operating Engi-
neers, Local Union No. 841, International Union of Oper-
ating Engineers, or any other labor organization, by dis-
criminatorily terminating employees, or in any other manner
discriminating against them with regard to their hire or ten-
ure of employment or any term or condition of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your right to engage
in union or concerted activities, or to refrain therefrom.
WE WILL offer Roy Hurt immediate and full reinstatement
to his former job, or if such job no longer exists, to a sub-
stantially equivalent position, without prejudice to his senior-
ity or other rights and privileges previously enjoyed, and
make him whole for losses he suffered by reason of the dis-
crimination against him, with interest.
WE WILL expunge from our files any reference to the ter-
mination of Roy Hurt, and all equipment damage reports or
other memoranda reflecting adversely on his employment
record, and notify him in writing that this has been done and
that evidence of the unlawful discharge will not be used as
a basis for future personnel actions against him.
WHITESVILLE MILL SERVICE CO., INC. A
WHOLLY-OWNED SUBSIDIARY OF EDWARD C.
LEVY CO., INC.