Tube City IMS, LLC

National Labor Relations Board - Administrative Judge Opinions

Feb 12, 2016

07-CA-154813 (N.L.R.B. Feb. 12, 2016)

JD–11–16
Monroe, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
TUBE CITY IMS, LLC,
And Case 07-CA-154813
LOCAL 324, INTERNATIONAL UNION OF
OPERATING ENGINEERS (IUOE), AFL-CIO
Mary Beth Foy, Esq.,
for the General Counsel.
Joseph Quinn, Esq.,
for the Respondent.
Amy Bachelder, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MELISSA M. OLIVERO, Administrative Law Judge. This case was tried in Detroit, Michigan,
on December 7, 2015. Local 324, International Union of Operating Engineers (IUOE), AFL–
CIO (Union), filed the charge on June 24, 2015, and an amended charge on August 14, 2015.1
GC Exh. 1(a) and (b).2 The General Counsel issued the complaint on September 22, alleging that
Tube City IMS, LLC (Respondent) violated Section 8(a)(3) and (1) of the National Labor
Relations Act (Act) by discharging Josh Maier, an employee of Respondent, because he
supported the Union and engaged in protected concerted activity. GC Exh. 1(g). Respondent
filed a timely answer denying the violation alleged in the complaint. GC Exh. 1(i). On the entire
record, including my observation of the demeanor of the witnesses,3 and after considering the
briefs filed by the General Counsel and Respondent, I make the following

1 All dates are in 2015 unless otherwise indicated.
2 Abbreviations used in this decision are as follows: “Tr.” for transcript; “GC Exh.” for General
Counsel’s Exhibit; “R. Br.” for Respondent’s brief; and “GC Br.” for the General Counsel’s brief.
3 Although I have included citations to the record to highlight particular testimony or exhibits, my
findings and conclusions are not based solely on those specific record citations, but rather on my review
and consideration of the entire record for this case. My findings of fact encompass the credible testimony
and evidence presented at trial, as well as logical inferences drawn therefrom.
JD–11–16
2
FINDINGS OF FACT
I. JURISDICTION
5
Respondent, a limited liability company, provides industrial steel scrap and mill services at
its facility in Monroe, Michigan, where it annually performs services valued in excess of $50,000
in States other than the State of Michigan. 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. GC Exh. 1(i). 10
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Operations and Management Structure
15
Respondent provides complete mill services, including steel scrap and metal recovery, at its
numerous facilities across the country. Tr. 85. At the Monroe, Michigan facility (Monroe
facility) these services are performed for the nearby Gerdau Steel mill. Tr. 11. Since August 11,
Respondent has had approximately 24 hourly employees working at the Monroe facility. GC
Exh. 3; Tr. 7; 86. 20
Neal Halle is the site manager at the Monroe facility and he is responsible for day-to-day
operations there. All of the hourly employees at the Monroe facility report to Halle. Halle
reports to Ty Reynolds, the general manager for the Monroe facility. Reynolds also manages 7
other facilities for Respondent. Reynolds’ office is located in Middletown, Ohio, and he 25
conducts a daily conference call with his site managers, including Halle. Respondent admits,
and I find, that Halle and Reynolds are supervisors of Respondent within the meaning of Section
2(11) of the Act or agents of Respondent within the meaning of Section 2(13) of the Act. GC
Exh. 1(i).
30
Some of the employees at the Monroe facility are classified as lancers/burners, also referred
to as cutters. Cutters stand on piles of scrap steel rods and use a torch to cut the rods into
smaller, 2-foot sections. In order to perform this work, employees are covered from head to toe
in safety gear, including flame retardant clothing, masks, face shields, gloves, safety glasses, and
boots. Two cutters may work together in a single cutting bed, however, due to the amount of 35
clothing worn and the noise from the torch, they are unable to talk to each other.
B. Respondent’s Work Rules
Respondent maintains a number of work rules, referred to as cardinal rules. Employees sign 40
a copy of these rules and they are posted at Respondent’s Monroe facility. GC Exh. 5. Halle
testified that all of the cardinal rules are of equal importance.4 Tr. 18. A violation of the cardinal
rules may result in discipline, including suspension or discharge. GC Exh. 5. Among the

4 Although Halle later testified that certain rules may be more important, I credit his initial testimony
that all cardinal rules are of equal importance, which was given before he had a chance to consider the
potential significance of this testimony.
JD–11–16
3
cardinal rules, Respondent requires employees to wear personal protective equipment, to refrain
from unsafe conduct, to follow safety procedures, and to “promptly and accurately” report an
accident or incident to management. GC Exh. 5.
C. The Union’s Organizing Drive5
In January, Maier contacted the Union about organizing Respondent’s Monroe facility.
However, little was done in regard to organizing between January and June because Maier
encountered personal problems.
10
In early June, Maier resumed his union organizing activity. Maier met with Union Organizer
Grant Warrington at a McDonald’s restaurant to discuss the benefits of union membership. At
this meeting, Warrington provided Maier with his business cards, blank membership cards, and
union literature. GC Exhs. 8, 9, 10; Tr. 24. Maier distributed these items to his fellow
employees. Tr. 26, 27. Maier was the only active employee organizer during the Union’s 15
campaign. Tr. 70.
The Union held a meeting for interested employees of Respondent on Saturday, June 13, at a
restaurant in LaSalle, Michigan. Tr. 28, 69. About 11 or 12 of Respondent’s employees
attended the meeting, which lasted 3 to 4 hours. Tr. 29, 70. Three union organizers, including 20
Warrington, led the meeting. Tr. 28–29; 69–70. Maier, as well as other employees, gave signed
union authorization cards to the Union at or shortly after this meeting. GC Exh. 11, 13, 15. The
Union received about 17 cards signed by Respondent’s employees during the course of the
campaign. Tr. 70.
25
Word of the organizing drive quickly spread to Respondent’s management. Halle received a
call from one employee and met with three other employees, all of whom advised Halle that
Respondent’s employees were seeking to organize. Tr. 12–13; 103–105. Maier was identified as
a lead organizer. Tr. 13.
30
Halle first reported that Respondent’s employees were seeking to organize to Reynolds
during a Monday morning conference call.5 Tr. 102. Reynolds advised Halle to talk to him
privately after the conference call. Tr. 102. During their second call that morning Reynolds told
Halle, “[I]t is what it is. [Y]ou can’t do anything about it. Leave it alone. Don’t talk to anyone
about it. We’ll deal with it when it comes.” Tr. 102. Halle called Reynolds on multiple 35
occasions to advise Reynolds of information he received regarding employee organizing activity.
Tr. 121. Reynolds testified that Halle would contact him as employees approached him [Halle]
and report on what he [Halle] was told.6 Tr. 121.

5 It is reasonable to assume that this phone call took place on Monday, June 15; the Monday after the
meeting of Respondent’s employees at the restaurant in LaSalle, Michigan. The restaurant meeting took
place on Saturday, June 13. Halle testified that he was initially advised of the Union’s organizing drive on
the day before this meeting at the restaurant (Friday, June 12), and that he was called by another
employee on a Sunday, which presumably was Sunday, June 14. It makes sense that, as Halle was
notified of employee organizing activity on June 12 and 14, he notified his superior of this activity on the
next work day, June 15.
6 Although Halle testified that he did not identify the employees who were seeking to organize, I do
JD–11–16
4
Following the discharge of Josh Maier, the Union’s organizing drive ended. The
uncontradicted testimony of Bill Smith, Tom Brancheu, and Duane Roark, all current employees
of Respondent, establishes that they did not talk about the Union after Maier’s discharge because
they were scared of losing their jobs. Tr. 43–44, 77, 81.5
D. Employment of Josh Maier
Josh Maier was employed by Respondent from April 2014 until June 22, 2015, when his
employment was terminated for what Respondent alleges was a violation of its cardinal rules. 10
Prior to his discharge, Maier was never disciplined by Respondent. Maier had been previously
injured on the job in January while pushing carts.7 Tr. 46.
On Friday June 12, Maier was working in a cutting bed with employee Bill Smith. Maier fell
while he was working that day, but Smith did not see him fall. The entire incident was captured 15
on a surveillance video. GC Exh. 2. The video shows Maier, wearing a yellow vest, and Smith,
wearing an orange vest, cutting steel. GC Exh. 2; Tr. 35. At about 5 minutes and 56 seconds, the
video shows Maier’s fall. GC Exh. 2; Tr. 36. After Maier fell, he got back up and returned to
cutting. Id.
20
About 6½ minutes after his fall, at about 12 minutes and 30 seconds into the video, Maier
went to find Halle to report the incident.8 GC Exh. 2; Tr. 37. He found Halle at a picnic table
near the cutting beds. Tr. 37, 56. Smith was with Halle when Maier came to report the fall.
Maier told Halle that he fell on his arm, but that he thought he would be fine with some Tylenol
or Ibuprofen. Tr. 38, 57, 90–91. Halle asked if Maier needed medical attention. Maier said no. 25
Smith advised Halle that he did not see Maier fall. Tr. 37. Halle then said he would make a note
of it. Maier and Smith returned to work.9
Maier continued to feel sore in the days after his fall, so he went and saw his chiropractor on
June 15. Tr. 38. He also took Tylenol and Ibuprofen. 30

not credit this testimony. Halle admitted that he identified the four employee sources of information about
employee organizing by name to Reynolds, but did not identify Maier as an organizer. Tr. 106. It seems
highly unlikely that Halle would take the time to identify four employees, but not an employee who was
identified as a lead organizer. For this same reason, I do not credit Reynolds’ testimony that he was not
aware of Maier’s organizing activities. Tr. 121-122.
7 Maier was injured while pushing a steel cart or cradle. Tr. 99–100. According to Halle, this incident
made him suspicious of Maier because medical reports at that time showed that Maier had degenerative
disc disease in his back. Tr. 100. Halle believed that this diagnosis showed that Maier had a prior injury.
Id. Reynolds also testified that he was suspicious of Maier due to the incident in which he was injured in
January. Tr. 125–126.
8 Halle admitted that Maier reported his fall on June 12. Tr. 18.
9 I do not credit the uncorroborated testimony of Halle that Maier told him he was not injured. Tr. 90–
91. Instead, I credit Smith’s testimony and statement that Maier refused medical attention. GC Exh. 14;
Tr. 60. I found Smith to be the more credible witness for the reasons set forth below.
JD–11–16
5
On Friday June 19, Maier reported to work, but began feeling sore by the afternoon. Tr. 38.
While still at work, Maier sent Halle a text message, stating, “Hey Neal just in case still sore
accross [sic] back from when I fell don’t want to cause trouble but it hasnt [sic] gotten much
better since then gonna go 2 chiropractor . . . could feel it crunch between shoulder blades when I
went down & left arm took all my weight . . .” GC Exh. 12. Halle did not respond to the text 5
message, but later approached Maier and said, “I thought you were okay.” Tr. 40. Maier stated
that he did not want to cause any trouble and asked to call Reynolds and explain. Halle then
stepped away and made a phone call.
When Halle stepped away, he called Reynolds. Tr. 91. Halle told Reynolds that Maier had 10
told him that he [Maier] had tripped and wasn’t hurt on June 12, but told him on June 19 that he
[Maier] was hurt. Reynolds testified that Halle told him the employee denied needing medical
attention.10 Tr. 122. Reynolds instructed Halle to take Maier to a clinic.
Later that afternoon, Halle took Maier to an industrial clinic for an examination. On the way 15
to the clinic, Halle told Maier that the steel industry was having a rough time and that the Gerdau
steel mill was possibly going to close. He also told Maier that they [Respondent’s employees]
were lucky to be working and that a lot of Tube City employees were laid off.11 Tr. 41.
Halle remained present in the room while Maier spoke with a doctor and was examined. 20
According to a medical report, Maier told the doctor:
On June 12th, he was standing on a pile of tubes and cutting them with a torch.
The pile of tubes started shuffling. He lost balance and fell on to his left side,
hitting his left elbow against the steel parts there. . . He stated that due to quickly 25
falling to left side, hitting the left elbow to the floor, that caused a jerky
movement in between shoulder blade area which caused pain.
GC Exh. 16. The above statement in the medical report is consistent with Maier’s testimony that
he told the doctor that he was cutting, standing on the steel bars when the steel bars rolled and he 30
fell onto his left side. Tr. 42, 92–93. Maier reported that he was not in too much pain on the day
of his fall, but that he had felt increasing pain and soreness in the days following the fall. GC
Exh. 16. On the day of his exam, Maier reported only mild pain, 2 on a scale of 1 to 10. Id. The
doctor’s examination did not note any significant objective findings. Maier was diagnosed with
a midback strain secondary to a fall. Id. The doctor recommended physical therapy and a course 35
of muscle relaxants, but allowed Maier to return to work without restrictions. Id. After returning
from the clinic, Maier’s shift was over and he left work for the day.
Halle called Reynolds after returning from Maier’s clinic visit. Tr. 93. Halle told Reynolds
“the story that he [Maier] told the doctor.” Tr. 94. Reynolds advised Halle to search the 40

10 Only after prompting from Respondent’s counsel did Reynolds add that Halle told him that the
employee told him he was not injured. Tr. 123.
11 Halle did not deny having this conversation. When asked if he said anything to Maier about the
steel industry in general, Halle replied, “Not that I recall.” Halle was not asked about whether he said
anything about the possible closure of the Gerdau mill or regarding Respondent’s employees being lucky
to have work. As such, I credit Maier’s version of this conversation.
JD–11–16
6
surveillance video to find the incident where Maier fell. Tr. 94–95. Halle was unable to locate
any video of Maier’s fall on Friday. Tr. 95. Halle eventually found the footage on Sunday, June
21. Tr. 95. According to Halle, the video shows Maier looking repeatedly over his shoulder,
standing straight up, dropping straight down, and then getting up like nothing happened. Tr. 96–
97. Halle believed that the surveillance video showed a different version of events than the one 5
relayed to him on June 12 and to the doctor on June 19.12 Tr. 96.
On Monday morning, Halle advised Reynolds about what he had seen on the surveillance
video. Tr. 97. Halle did not send the video to Reynolds so that Reynolds could watch it. Tr. 98.
Allegedly, it was Reynolds who decided to fire Maier after hearing Halle’s version of the 10
surveillance video and the alleged discrepancies in Maier’s reports of his fall. Tr. 88, 98.
According to Reynolds, he decided to discharge Maier for a violation of cardinal safety rules and
making a late and false report. Tr. 126. According to Halle, Reynolds told him to terminate
Maier for a violation of a cardinal rule. Tr. 98. Halle prepared a form explaining why Maier was
terminated. The form states as follows in the section entitled “Description of Infraction”:15
On June 12th the employee stated that he had tripped by the cutting beds, I asked
him if he was hurt and needed to go to the clinic and he said no he was ok and did
not need to be seen. One week later he stated he was hurt but wanted to give it a
couple of days to see if it gets better. I took him to the clinic and he told the 20
doctor that he was hurt in the fall and had been hurting every day since. Our
cardinal rules state that you must report an incident and injury when it occurs, not
a week later.
GC Exh. 4. The form indicates that Maier was terminated for violating a cardinal rule by not 25
reporting an injury. Id. There is no evidence that this form was ever provided to Maier.
When Maier reported for work on June 22, Smith told him that Halle had called him at home
by Halle asking about Maier’s fall. Tr. 58. Before Maier could go to the cutting beds, Halle
stopped him and told him to go into the trailer at the site and read some safety literature. Tr. 42. 30
A short time later, Dave Fry, a leadman, came in and asked Maier to step outside. When Maier
stepped outside, Halle told him to turn in his parking pass and equipment because he was being
terminated. Maier asked what he was being terminated for and Halle responded it was for
falsifying information. Maier asked if he was being terminated for the fall and Halle responded
yes because it didn’t happen. Maier repeatedly asked to look at the video in order to defend 35
himself, but Halle responded that Maier was done anyway.13 Tr. 43–44.
Maier left the jobsite and called Warrington. Tr. 44, 72. Maier and Warrington met later at
the Flat Rock McDonald’s and Maier gave Warrington the remaining signed cards in his

12 After reviewing the video, I find that it shows Maier falling as he reported to Halle on June 12. The
video is not of high quality. Regardless of what Maier was doing just prior to his fall, I do not find that
the video suggests that Maier falsified his report.
13 Halle did not testify about the conversation in which Maier was discharged. As such, Maier’s
testimony about this conversation stands unrebutted.
JD–11–16
7
possession. Tr. 45. Warrington also viewed the text message from Maier to Halle.14 GC Exh. 12;
Tr. 72.
Three days after Maier was discharged, Halle asked Smith to write a statement about Maier’s
fall. Tr. 59. Smith’s statement indicates that he did not see Maier fall, but did hear him report the 5
fall to Halle. GC Exh. 14; Tr. 60. Halle later solicited a second statement from Smith and
specifically asked Smith to state that Maier refused treatment.15 Tr. 60.
Halle testified regarding how he came to the conclusion that Maier falsified information.
When Maier first reported his fall, Halle testified that Maier said he tripped forward and fell onto 10
his arm, but wasn’t hurt. Tr. 89–90. On June 19, Halle testified, Maier told the doctor at the
clinic that the bars rolled out from underneath him and he fell backwards and hit the back of his
elbow on the steel and, when he did so, he felt a crunch between his shoulders. Tr. 90. Halle
noted that Maier told him that he [Maier] was not hurt, but told the doctor he felt a crunch
between his shoulders. Id. According to Halle, these alleged discrepancies demonstrated that 15
Maier had falsified his report.16 Id.
Records produced by Respondent indicate that Respondent did not always discharge
employees for violations of its cardinal rules. Halle suspended an employee for one day for not
wearing protective equipment (hard hat and safety glasses) in violation of the cardinal rules. GC 20
Exh. 7. Although Halle denied making the decision to discharge Maier, he has discharged other
employees. Tr. 112. Halle testified that aside from Maier, he has discharged three other
employees: two for drug-related instances and one for attendance. Tr. 108. Reynolds testified
that he had previously discharged a site manager for violating the cardinal rules by failing to
report employees fighting. Tr. 129–130. No documentary evidence was produced by 25
Respondent about the discharges for drug-related incidents, attendance, and the failure to report
fighting.
DISCUSSION AND ANALYSIS
30
A. Witness Credibility
A credibility determination may rely on a variety of factors, including the context of the
witness’ testimony, the witness’ demeanor, the weight of the respective evidence, established or

14 Although Warrington initially testified that he viewed and photographed the text message on June
19, it was later established that he did not photograph the text message until sometime after July 8. Tr.
74–75. I do not find that this detracted from Warrington’s overall credibility. In any event, Halle
admitted that he received this text message on June 19. Tr. 91.
15 Smith insisted that he made 2 separate statements. Respondent maintained that Smith did not make
2 statements, instead asserting that Smith added the second sentence to his original statement. This
discrepancy is of no importance, however, as Smith testified that his statements contained the same
information as contained in the single statement.
16 As noted previously, I did not credit Halle’s testimony that Maier said he was not hurt on June 12.
I further do not credit Halle’s testimony that Maier told him that he [Maier] fell forward on June 12 and
told the doctors that he [Maier] fell backward on June 19. I note that Halle’s testimony about what he
was told on June 12 was not corroborated by Smith and Maier. Halle’s testimony about what Maier told
the doctor was contradicted by the medical report contained in GC Exh. 16.
JD–11–16
8
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the
record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589
(1996)), enfd 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all-or-
nothing propositions—indeed, nothing is more common in all kinds of judicial decisions than to 5
believe some, but not all, of a witness’ testimony. Daikichi Sushi, 335 NLRB at 622. My
credibility findings are generally incorporated into the findings of fact set forth above.
I found Maier to be a credible witness. He testified in a sure and even manner. His
testimony was largely corroborated by that of Smith and was supported by the documentary 10
evidence. Although Maier did not recall certain details of his conversation with Halle on June
12, I do not find that this detracts from his overall credibility. The version of this conversation
given by Halle was supported by Smith, who I found very credible. As such I generally credited
Maier’s testimony.
15
I found Bill Smith to be a particularly credible witness. He testified in a very direct and
concise manner. His testimony was not challenged in any significant way on cross-examination.
Furthermore, as a current employee of Respondent, his testimony is entitled to enhanced
credibility. Advocate South Suburban Hospital, 346 NLRB 209 fn. 1 (2006); see also American
Wire Products, 313 NLRB 989, 993 (1994) (Current employee providing testimony adverse to 20
his employer is at risk of reprisal and thus likely to be testifying truthfully). As such, I credit the
testimony of Smith over that of other witnesses.
I further found the brief testimony of Brancheu and Roark to be very credible. Both testified
in a steady manner. Respondent chose not to cross-examine these witnesses. Thus, their 25
testimony that the organizing drive at the Monroe facility stopped following Maier’s discharge
stands uncontradicted and I credit it.
I found Warrington to be a credible witness. He testified in a frank and steady manner. On
cross-examination, his testimony was only challenged regarding the date that he photographed 30
the text message sent by Maier to Halle on June 19. I do not find that his failure to recall a single
date detracts from his overall credibility. As such, I have credited Warrington’s testimony.
I did not find Halle’s testimony to be generally credible. He altered his testimony as the
hearing progressed. For example, he initially testified that all cardinal rules are of equal 35
importance, but later testified that the rule concerning falsifying a report or belatedly reporting
an injury is more important than the rule regarding wearing personal protective equipment. Tr.
18; 107. He gave only a brief recitation regarding his conversation with Maier on June 12 and
did so only as a means to show how Maier allegedly gave false information. Tr. 88–89. He
further gave implausible testimony, such as that he did not report Maier’s fall to Reynolds on 40
June 12 because he did not consider a “trip” to be an accident. Tr. 92. However, I note that
elsewhere in his testimony Halle indicated that Maier said that he “fell” and mentioned taking
over the counter pain medication. Tr. 89–90. Finally, Halle’s recollection of what Maier told the
doctor on June 19 is contradicted by the medical report in evidence (GC Exh. 16). As such, I
credit Halle’s testimony only where it is inherently plausible, corroborated by another credible 45
witness, or supported by the documentary evidence.
JD–11–16
9
I did not find Reynolds’ testimony credible. He required prompting by Respondent’s counsel
to relate the full contents of what he was initially told about Maier’s fall by Halle on June 19. Tr.
122–123. Furthermore, he gave self-serving testimony about his previous service as a union
steward. Tr. 117–118. I presume that this testimony was given in an effort to establish that he
would not have discriminated against a union supporter in this instance. Reynolds’ former 5
support for a union is not probative of how he acted in these circumstances. For all of these
reasons, I credit Reynolds’ testimony only where it is inherently plausible, corroborated by
another credible witness, or supported by the documentary evidence.
Finally, I specifically did not credit the testimony of Halle and Reynolds that Halle did not 10
discharge Maier or recommend the discharge of Maier. It was Halle who signed Maier’s
discharge notice and the notice of suspension for the employee disciplined for failing to wear
personal protective equipment. It was Halle who advised Maier that he was discharged.
However, even if Halle did not make the ultimate decision to discharge Maier, I find that Halle
effectively recommended Maier’s discharge. Reynolds’ decision to discharge Maier was based 15
solely upon the information provided by Halle. Reynolds did not view the video of Maier’s fall,
did not interview Smith, who was present for the conversation between Maier and Halle on June
12, and did not interview Maier. There is no evidence that he ever reviewed the medical report
regarding Maier’s clinic visit on June 19. Thus, Reynolds’ decision was made solely based upon
statements made by Halle, who knew that Maier was a union organizer.20
B. Maier’s Discharge Violated the Act
The General Counsel alleges that Respondent violated Section 8(a)(3) and (1) of the Act
when it discharged Maier for supporting the Union and for engaging in concerted activities with 25
other employees. Respondent argues, in its defense, that it terminated Maier for a lawful,
business-related reason, notwithstanding his engagement in concerted activity. For the reasons
discussed herein, I conclude that Maier’s engaging in union and protected concerted activity was
a motivating factor in his discharge and that his discharge was unlawful.
30
In determining whether an employee's discharge is unlawful, the Board applies the mixed
motive analysis set forth in Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). Under Wright Line, to establish unlawful
discrimination on the basis of union activity, the General Counsel must make an initial showing 35
that antiunion animus was a substantial or motivating factor for the employer’s action by
demonstrating that: (1) the employee engaged in union activity; (2) the employer had knowledge
of that union activity; and (3) the employer harbored antiunion animus. Nichols Aluminum, 361
NLRB No. 22, slip op. at 3 (2014), citing Amglo Kemlite Laboratories, 360 NLRB No. 51, slip
op. at 7 (2014). Proof of animus and discriminatory motivation may be based on direct evidence 40
or inferred from circumstantial evidence. Robert Orr/Sysco Food Services, 343 NLRB 1183,
1184 (2004); Ronin Shipbuilding, 330 NLRB 464, 464 (2000). If the General Counsel meets his
burden, then the burden shifts to Respondent to prove that it would have taken the same action
absent the employee’s protected conduct. Wright Line, 251 NLRB at 1089; NLRB v.
Transportation Management Corp., 462 U.S. 393, 399–403 (1983).45
JD–11–16
10
The Board relies on both circumstantial and direct evidence in determining whether the
conduct in question was unlawfully motivated. Fluor Daniel, Inc., 311 NLRB 498 (1993).
Several factors, including evidence of suspicious timing, false reasons given in defense, failure to
adequately investigate alleged misconduct, departures from past practices, and disparate
treatment of the discharged employees all support inferences of animus and discriminatory 5
motivation. Medic One, Inc., 331 NLRB 464, 475 (2000).
The employer cannot meet its burden merely by showing that it had a legitimate reason for its
action; rather, it must demonstrate that it would have taken the same action in the absence of the
protected conduct. Bruce Packing Co., 357 NLRB No. 93, slip op. at 3–4 (2011); Roure 10
Bertrand Dupont, Inc., 271 NLRB 443, 443 (1984). If the employer's proffered reasons are
pretextual—i.e., either false or not actually relied on—the employer fails by definition to show
that it would have taken the same action for those reasons regardless of the protected conduct.
Metropolitan Transportation Services, 351 NLRB 657, 659 (2007); Golden State Foods Corp.,
340 NLRB 382, 385 (2003); Limestone Apparel Corp., 255 NLRB 722, 722 (1981), enfd. 705 15
F.2d 799 (6th Cir. 1982).
With respect to the General Counsel’s initial showing, it is undisputed that Maier engaged in
union activity by his efforts to organize Respondent’s workforce in 2015. Furthermore, it is
undisputed that Respondent, through Halle, was aware of this activity. At issue here is whether 20
Respondent harbored animus toward Maier’s union and protected concerted activity. I find that
it did.
Several comments made by Halle indicate that Respondent bore animus toward Maier’s
union and protected, concerted activity. On the way to the clinic on June 19, Halle mentioned:25
that the steel industry was having a hard time; that the Gerdau mill might close; and that
Respondent’s employees were lucky to be working. All of these statements appear to be thinly
veiled threats that if Respondent’s employees unionized, they might lose their jobs.
Additionally, on the day of Maier’s discharge, when he asked to see the video of his fall in order
to defend himself, Halle said, “You’re done anyway.” This last comment clearly indicates that 30
Respondent intended to discharge Maier no matter what he might say. An employer's failure to
permit an employee to defend himself before imposing discipline supports an inference that the
employer's motive was unlawful. Embassy Vacation Resorts, 340 NLRB 846, 849 (2003). All
of these comments support the General Counsel’s argument that the motivation for Maier’s
discharge was unlawful.35
The timing of Maier’s discharge strongly suggests that it was motivated by his union and
protected, concerted activity. Maier fell and reported his fall on Friday, June 12. Later that same
day, Halle became aware that Respondent’s employees would be meeting with union organizers
the next day. On Saturday, June 13, the Union held a meeting with Respondent’s employees. 40
Halle became aware of this meeting and Maier’s status as a lead union organizer shortly
thereafter. I have reasonably inferred that Halle made Reynolds aware of the employees’
organizing activity on Monday, June 15, 2 days after the Union’s meeting with Respondent’s
employees. Maier was discharged 1 week later. Animus can be inferred from the relatively
close timing between an employee’s protected concerted activity and his discipline. Corn 45
Brothers, Inc., 262 NLRB 320, 325 (1982) (timing of discharge within a week of union
organizing meeting evidence of antiunion animus); Sears Roebuck & Co., 337 NLRB 443, 451
JD–11–16
11
(2002) (timing of discharge, several weeks after employer learned of protected concerted
activities, indicative of retaliatory motive); La Gloria Oil & Gas Co., 337 NLRB 1120 (2002)
(timing of discipline imposed 4 months after service on bargaining team and ULP hearing
appearance suspect). Thus, I find that the timing of Maier’s discharge provides strong evidence
that Respondent harbored animus toward his union and protected, concerted activity. 5
Respondent’s cursory investigation of Maier’s alleged misconduct further provides evidence
that his discharge was unlawfully motivated. An employer’s failure to conduct a full and fair
investigation is a factor that leads to the inference of animus and constitutes evidence of
discriminatory intent. See Firestone Textile Co., 203 NLRB 89, 95 (1973) (Improper motivation 10
found based on employer’s cursory investigation); Midnight Rose Hotel & Casino, Inc., 343
NLRB 1003, 1005 (2004) (Respondent's failure to conduct a fair investigation and to give
employee an opportunity to explain her actions before imposing discipline indicates
discriminatory motivation). In this instance, Reynolds made the decision to discharge Maier
without having seen the video of his fall or the medical report from the industrial clinic. Instead, 15
he relied solely upon the recitations of Halle, who knew that Maier was a lead organizer in the
Union’s campaign. Respondent did not even seek an initial statement from employee Bill Smith
until 3 days after Maier was discharged. Respondent then elicited a further statement from Smith
days later in an apparent effort to bolster its claims against Maier.
20
Furthermore, in reviewing the statements in the medical report contained in GC Exh. 16, I
find that they are not at odds with Maier’s initial statements to Halle about his fall. Maier
initially told Halle that he fell on his arm. Maier told the doctor at the industrial clinic that he
fell and hit his left elbow. These are not divergent statements. Although Maier provided more
detail to the doctor at the clinic, I do not find, as suggested by Respondent, that this means he 25
falsified his report to Halle. Thus, under all of these circumstances, I find that Respondent’s
superficial and belated investigation of Maier’s alleged misconduct indicates its motivation for
his discharge was improper.
I also find that Respondent’s shifting justifications for its termination of Maier provide 30
evidence of its unlawful motive. When an employer is unable to maintain a consistent
explanation for its conduct, but rather resorts to shifting defenses, “it raises the inference that the
employer is ‘grasping for reasons to justify’ its unlawful conduct.” Meaden Screw Products Co.,
336 NLRB 298, 302 (2001), citing Royal Development Co. v. NLRB, 703 F.2d 363, 372 (9th Cir.
1983). Both Halle and Reynolds testified that they were suspicious of Maier’s report on June 12 35
because of his prior workplace injury. However, this suspicion was not mentioned as a
justification for Maier’s discharge in Maier’s discharge paperwork. Respondent did not advise
Maier that it was suspicious of him because of his prior report of a workplace injury. I find that
by offering this belated reason for being suspicious of and discharging Maier, that Respondent
has offered a shifting justification for Maier’s discharge and that this shifting justification 40
provides further evidence of Respondent’s animus.
Once the General Counsel has met her initial burden under Wright Line, the burden shifts to
Respondent to prove that it would have taken the same action absent the employee’s protected
conduct. An employer does not satisfy its burden merely by stating a legitimate reason for the 45
action taken, but instead must persuade by a preponderance of the credible evidence that it would
have taken the same action in the absence of the protected conduct. T & J Trucking Co., 316
JD–11–16
12
NLRB 771 (1995); Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996). What is required is
a showing that the employer has consistently and non-discriminatorily applied its disciplinary
rules. Septix Waste, Inc., 346 NLRB 494, 496 fn. 15 (2006). It cannot be said, with any degree
of reliability, that Maier would have been discharged absent his union and protected, concerted
activity. Thus, I do not find that Respondent has made the necessary showing.5
Respondent’s own records indicate employees are not always discharged for violations of its
cardinal rules. Halle suspended an employee for one day for not wearing protective equipment
(hard hat and safety glasses) in violation of the cardinal rules. Halle testified that all of the
cardinal rules are of equal importance. Thus, the evidence establishes that Maier was treated 10
differently from another of Respondent’s other employees in terms of the severity of his
punishment for violating a cardinal rule.17
The General Counsel made a prima facie case of discrimination under Wright Line by
demonstrating that Maier engaged in union and protected concerted activity and that Respondent 15
had knowledge of these activities. The General Counsel further established strong evidence of
animus towards Maier’s union and protected concerted activities. The burden then shifted to
Respondent to persuade by a preponderance of the credible evidence that it would have taken the
same action in the absence of the protected conduct. Respondent has failed to meet this burden.
Therefore, I find that Respondent’s discharge of Maier violated Section 8(a)(3) and (1) of the 20
Act, as alleged in the General Counsel’s complaint.
CONCLUSIONS OF LAW
25
1. Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union has been a labor organization within the meaning of Section 2(5) of the
Act. 30
3. Respondent violated Section 8(a)(3) and (1) of the Act when it discharged Josh
Maier.
4. By engaging in the unlawful conduct set forth in paragraph 3 above, Respondent has 35
engaged in unfair labor practices affecting commerce within the meaning of Section
8(a)(3) and (1), and Section 2(6) and (7) of the Act.

17 I have assigned little weigh to Halle’s and Reynolds’ testimony that Halle discharged two
employees for drug-related offenses and one for attendance and that Reynolds discharged a site supervisor
for failing to report employees fighting. No documentary evidence was produced to support these claims.
Furthermore, there was no evidence adduced as to when Halle discharged the three employees. Reynolds
testified that he discharged the site supervisor when he first took control of the Monroe facility, but there
is no evidence as to when that occurred.
JD–11–16
13
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall order
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the 5
policies of the Act.
As part of the remedy in this case, the General Counsel has requested that I order Respondent
to reimburse Maier for all search-for-work and work-related expenses incurred regardless of
whether he received interim earnings in excess of such expenses. Backpay issues are resolved by 10
a factual inquiry at the compliance stage of the proceeding, Island Management Partners, 326
NLRB No. 158 slip op. at fn. 4 (2015), citing J. E. Brown Electric, 315 NLRB 620 (1994).
Furthermore, the Board has previously declined to order such relief it would involve a change in
Board law, and the parties did not fully brief the issue to the Board. Katch Kan, USA, 362
NLRB No. 162 slip op. at fn. 2 (2015), citing Ishikawa Gasket America, Inc., 337 NLRB 175, 15
176 (2001), enfd. 354 F.3d 534 (6th Cir. 2004), and cases cited therein. Therefore, I decline to
order that search-for-work and related expenses be ordered as part of the backpay remedy at this
stage of the proceedings.
The Respondent, having discriminatorily discharged employee Josh Maier, must offer him 20
reinstatement and make him whole for any loss of earnings and other benefits. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010).
25
Respondent shall file a report with the Social Security Administration allocating backpay to
the appropriate calendar quarters. Respondent shall also compensate the discriminatee for the
adverse tax consequences, if any, of receiving one or more lump-sum backpay awards covering
periods longer than 1 year. Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10
(2014). 30
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended18
ORDER35
The Respondent, Tube City IMS, LLC, Monroe, Michigan, its officers, agents,
successors, and assigns, shall
1. Cease and desist from40
(a) Discharging or otherwise discriminating against employees because they engage in
union activities or support a union.

18 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended 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.
JD–11–16
14
(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 effectuate the policies of the Act.5
(a) Within 14 days from the date of the Board’s Order, offer Josh Maier 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
previously enjoyed.10
(b) Make Josh Maier whole for any loss of earnings and other benefits suffered as a result
of the discrimination against him in the manner set forth in the remedy section of the
decision.
15
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge of Josh Maier, and within 3 days thereafter notify
him in writing that this has been done and that the discharge will not be used against
him in any way.
20
(d) File a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
(e) Compensate Josh Maier for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1 year.25
(f) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an 30
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its facility in St. Louis, Missouri
copies of the attached notice marked “Appendix.”19 Copies of the notice, on forms 35
provided by the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where
notices to employees are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as by email, posting on an 40
intranet or an internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means. Reasonable steps shall

19 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.”
JD–11–16
15
be taken by the Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility 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 5
Respondent at any time since June 22, 2015.
(h) 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.10
Dated, Washington, D.C. February 12, 2016
15

Melissa M. Olivero
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge or otherwise discriminate against you because you engage in union
activity or support a union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights listed above.
WE WILL within 14 days from the date of this Order, offer Josh Maier 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 previously enjoyed.
WE WILL make Josh Maier whole for any loss of earnings and other benefits suffered as a result
of the discrimination against him, with interest.
WE WILL compensate Josh Maier for the adverse tax consequences, if any, of receiving a lump-
sum backpay award, and we will file a report with the Social Security Administration allocating
the backpay award to the appropriate calendar quarters for him.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful discharge of Josh Maier, and WE WILL, within 3 days thereafter, notify Josh Maier
in writing that this has been done and that the unlawful discharge will not be used against him in
any way.
TUBE CITY IMS, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Room 300, Detroit, MI 48226-2569
(313) 226-3200, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/07-CA-154813 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING
AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY
QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (313) 226-3244.