Thomas Steel Co.

National Labor Relations Board - Board Decisions

Sep 9, 1986

281 N.L.R.B. 389 (N.L.R.B. 1986)

THOMAS STEEL CO.
Thomas Steel Company and Jack Brodiske. Case
13-CA-24754
9 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 14 November 1985 Administrative Law
Judge Michael D. Stevenson issued the attached
decision . The General Counsel filed exceptions and
a supporting brief, the Respondent filed cross-ex-
ceptions and a supporting brief, and both parties
filed answering briefs."
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, fmdings,2 and
conclusions and to adopt the recommended
Order.a
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
i The Respondent filed a motion to reopen the record to introduce an
arbitration award and the General Counsel filed a motion to strike a por-
tion of the Respondent's brief in opposition to the General Counsel's ex-
ceptions . Both motions are denied.
2 The General Counsel has excepted to some of the judge 's credibility
findings. The Board 's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect . Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
In adopting the judge 's finding that the Respondent 's letter dated 14
December 1984 to Jack Brodiske was not violatve of Sec. 8(a)(1) of the
Act, we rely solely on the judge's findings that Brodiske 's conduct,
which prompted the Respondent to send the letter , was unprotected and
that the Respondent at the time it sent the letter did not know or could
not have reasonably known of the arguably concerted nature of Bro-
diske's conduct . Member Johansen relies only on the latter reason.
The Respondent has requested that it be awarded attorney fees and
costs "in responding to the General Counsel 's bad faith exceptions." Such
a claim can only be filed under the Equal Access to Justice Act.
Brian Steinbach, Esq., for the General Counsel.
John Morrison and Edwin C. Thomas, Esq& (Bell, Boyd &
Lloyd), of Chicago, Illinois, for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge.
This case was tried before me at Chicago, Illinois, on 12
August 1985,1 pursuant to a complaint issued by the Re-
" All dates refer to 1984 unless otherwise indicated.
389
gional Director for Region 13 on 12 February 1985, and
which is based on a charge filed by Jack Brodiske (the
Charging Party) on 9 January 1985 . The complaint al-
leges that Thomas Steel Company (Respondent) has en-
gaged in certain violations of Section 8(axl) of the Na-
tional Labor Relations Act (the Act).
Issues
Whether Respondent's letter of 14 December violated
Section 8(a)(1) of the Act because it threatened the
Charging Party with legal action in retaliation for the
latter's concerted protected activities.
All parties were given full opportunity to participate,
to introduce relevant evidence , to examine and cross-ex-
amine witnesses , to argue orally, and to file briefs . Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and the Charging Party.2
On the entire record of the case , and from my obser-
vation of the witnesses and their demeanor , I make the
following
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS
Respondent admits that it is a corporation engaged in
the manufacture of steel reinforced bars and having a
plant located in Lemont, Illinois . It further admits that
during the past year , in the course and conduct of its
business, it has purchased and received goods and mate-
rials valued in excess of $50,000 from suppliers outside
the State of Illinois . Accordingly, it admits, and I find,
that it is an employer engaged in commerce and in a
business affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that United Steelwork-
ers of America, AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
1. General background
Effective 9 February 1983, Ceco Steel Company sold
its manufacturing facility located in Lemont, Illinois, a
few miles southwest of Chicago , to Respondent. At the
time of sale and for many years prior thereto, Ceco had
been party to a collective-bargaining agreement with the
United Steelworkers of America , AFL-CIO (the Union).
The most recent agreement between Ceco and the Union
covered the period of 16 October 1980 to 15 August
1983 (G.C. Exh. 1(a)). On 14 December 1982 a memo-
randum agreement (G.C. Exh. 2(b)) was signed by Re-
spondent and the Union modifying the labor agreement
(G.C. Exh . 2(a)) in certain respects, and extending the
2 The General Counsel's unopposed four-page motion to correct the
transcript is granted. Thb changes are reported in the appendix to this
decision [omitted from publication].
281 NLRB No. 60
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor agreement to 15 October 1986 . Approximately 350
unit employees and a number of supervisors and manag-
ers are employed by Respondent . One such unit employ-
ee was the Charging Party, Jack Brodiske, a lengthy wit-
ness at hearing.
Employed by Respondent and its predecessor a total
of 21 years, Brodiske had been a fully satisfactory em-
ployee until the events leading to this case . Among the
jobs performed by Brodiske was that of welder, a job he
held for several years before his discharge on 12 Octo-
ber. In addition to his job in the plant, Brodiske held sev-
eral offices in Local 5889 of the Union. A member for
about 21 years , he had served as vice president of the
Local for about 10 months (July to May 1985) by virtue
of appointment of Local President James Bruce, also a
witness at hearing . As vice president, Brodiske was
active in negotiating grievances and problems with man-
agement.
Brodiske also had served as chairman and only
member of the Local's safety and health committee by
virtue of appointment of then Union President Ray Ro-
chell about 6 or 7 years before Brodiske was terminated.
Brodiske's tenure in this job continued allegedly even
after his termination . At the time of hearing, Rochell was
plant manager and testified for Respondent. As chairman
of the safety and health committee, Brodiske would re-
ceive complaints from employees regarding alleged
safety hazards and work to correct the matters were pos-
sible . Brodiske also acted on his own initiative to remedy
problems where he observed them.
Brodiske held still a third union office, chairman of the
Local's workmen's compensation committee , again by
appointment of Bruce. Brodiske held this job for only 4
months, stepping down after his discharge on 12 Octo-
ber.
Brodiske also was appointed to and served as the
Local's entertainment and refreshment chairman for the
8 to 10 years before his discharge. Finally , Brodiske
served as a union trustee for about 6 years. Respondent
was aware of all or most of Brodiske's positions because
he frequently dealt with company supervisors and be-
cause all or most company supervisors had been unit
members before their promotions . The parties stipulated
that on 9 February 1983, then Assistant Plant Manager
Rochell was aware that Brodiske was vice president of
the Union and involved with the Union's workmen's
compensation committee . In addition, Robert Thomas,
Respondent's chief executive office (CEO), Norm Ne-
manich, Respondent 's safety manager, and other compa-
ny supervisors and officials met with Brodiske at month-
ly safety meetings prior to the latter's discharge.
Brodiske received a nominal payment of about $35-
$40 per month from the Union for his union activities.
2. Facts and circumstances surrounding Brodiske's
discharge
On 12 October Brodiske was working the 8 a.m. to 4
p.m. shift . His immediate foreman was Alan Eulert, a
statutory supervisor and witness for Respondent. Eulert
had been employed by Respondent and Ceco for 23 or
24 years but, as of 12 October, he had been a foreman
for only a few months. Before that, Eulert had been a
machinist for several years in the bargaining unit, had
served briefly as a union official, and had been acquaint-
ed with Brodiske over the years. At the time of hearing,
Eulert was serving as general foreman, a promotion he
achieved about 1 month before the hearing.
Shortly after 8 a.m. on 12 October, Eulert told Bro-
diske to weld two rolls in the machine shop. Each roll
was about 4 to 5 feet long, about 1 foot in diameter and
weighed 300 to 400 pounds . Brodiske began to weld the
first roll and almost completed the job . Then Brodiske
told Eulert that he would not be able to work on the
second roll because it had excess amounts of grease and
oil on it and , in the opinion of Brodiske , this constituted
a safety hazard. Brodiske asked Eulert to have it cleaned
so he could continue his welding work. Eulert told Bro-
diske that if the latter felt the roll needed cleaning, he
should clean it himself. Brodiske declined to do this, pri-
marily because the cleaning process itself, using solvent,
might increase the safety hazard and because it was not
his job. At this point, Eulert left to consult with his supe-
rior over the matter.
After consulting with the general foreman , Eulert re-
turned with a special "hot coat," about three-quarter
length and designed for repelling heat and molten metal.
Eulert also offered to provide Brodiske heavy rubber
gloves and rubber galoshes to protect Brodiske's shoes.
The cleaning solvent was in a tank about 50 to 60 feet
from the roll which Brodiske had been ordered to weld.
Brodiske continued to refuse to perform his assigned
work, claiming the safety clothing described above
would not adequately protect him. That is, if the solvent
dripped on his clothing , the welding torch might ignite
the solvent and cause him to suffer injury from the
burns. At this point , Eulert told Brodiske either to finish
the weld or go home. Brodiske requested permission to
consult with Union President Bruce and Nemanich.
Eulert agreed to this and, a short time later, a meeting
occurred in the general foreman 's office. Both sides dis-
cussed their respective positions, but no agreement was
reached. The meeting concluded when Eulert asked Bro-
diske if he was refusing to perform the work as directed.
Brodiske answered that he was because the job was
unsafe . Eulert then told Brodiske to leave the plant. As
the meeting was breaking up, Nemanich, who did not
testify, said that in the operation of the plant there were
many unsafe jobs, but they just get done . To this, Bro-
diske replied that he was unwilling to do this particular
unsafe job . Then Brodiske made a reference to the U.S.
Occupational Safety and Health Administration (OSHA),
saying, maybe OSHA needed to come in to look over
the plant. Eulert immediately asked for a clarification of
the remark, asking, "Are you threatening to bring in
OSHA?" Brodiske denied any implied threat. Then he
left the plant.
On 13 October Brodiske received a telegram from W.
C. Langer, Respondent's personnel manager and statuto-
ry supervisor, stating that in light of the events described
above, Brodiske was being given a "Five day suspension
... pending discharge." (G.C. Exh. 3.)
On 14 October Brodiske filed a grievance over the dis-
cipline imposed on him (G.C. Exh. 4). There followed a
THOMAS STEEL CO.
series of grievance meetings , each of which resulted in
the denial of Brodiske's grievance . On 19 July 1985 the
facts surrounding Brodiske's discharge were presented to
an arbitrator who, as of hearing, had not reached a deci-
sion . The discharge does not constitute an issue in the in-
stant case.
3. Brodiske's postdischarge activities
On 15 October, 3 days before the first formal griev-
ance meeting , Brodiske called Ashland Chemical Compa-
ny, manufacture of mineral spirits, the cleaning solvent
which Eulert had recommended . Brodiske talked to
Tracy Smith, product safety coordinator for Ashland. He
told Smith that he was vice president of the Union and
chairman of the union health and safety committee. Bro-
diske then asked several questions regarding the proper
procedure for the safe handling and usage of the mineral
spirits solvent . Brodiske also requested that a material
safety date sheet (MSDS) be sent to him at his home ad-
dress . An MSDS explains physical properties , proper
handling, disposal, and possible health effects of a given
product or chemical . Smith sent the MSDS and Brodiske
received it (G.C. Exhs. 8, 15). Thinking he would not re-
ceive the official MSDS by the 18 October grievance
hearing , Brodiske called Smith back and received perti-
nent information over the telephone which he typed on a
blank MSDS he had received from a local OSHA office
(G.C. Exh. 5).
During the two conversations with Smith, Brodiske
never mentioned Respondent 's name, nor disparaged the
Company in any way . According to Respondent 's coun-
sel, Brodiske 's telephone contacts with Ashland had no
connection to a 14 December letter sent by Respondent's
counsel to Brodiske (R. Br. 61). (As reflected in the anal-
ysis and conclusions section of this decision, the General
Counsel disputes this assertion.) This letter is reflected
below and is claimed by the General Counsel to have
violated the Act.
On 14 October Brodiske stated at the grievance meet-
ing that he had talked to Smith at Ashland and was
awaiting the Company 's mineral spirits MSDS which he
had not yet received. Brodiske then referred to the
MSDS sheet which he had prepared (G.C. Exh. 5), and
restated his position regarding the events in question. At-
tending the meeting for Respondent was CEO Thomas,
Rochell, Eulert, and others.
About 22 October , Respondent sent a second telegram
to Brodiske telling him that his 5-day suspension was to
culminate in a discharge (G.C. Exh . 7). On the same
date, Brodiske requested that his discharge be taken to
the next grievance step (G.C. Exh. 9).
On 9 November the third-step grievance meeting was
held with the same result as before. On 13 November
Respondent sent a third telegram to Brodiske stating that
his discharge would stand (G.C. Exh. 10). On 16 No-
vember the Union requested arbitration (G.C. Exh. 11).
Brodiske filed charges over his discharge with both
the NLRB and OSHA, and both were deferred to arbi-
tration (G.C. Exh . 13). Sometime in December , Brodiske
also requested OSHA to make a plant safety inspection
concentrating on matters which Brodiske had periodical-
ly brought to the attention of management beginning
391
about 2 years before his discharge . These matters includ-
ed allegedly unsafe ladders and couplings on railroad
cars.
Meanwhile, on 12 November, Brodiske attended a
union meeting in which a member named Pasley ex-
pressed concern about a product he was working with.
Pasley did not testify but, according to Brodiske , Pasley
worked in the pit area of Respondent 's melt shop and
was experiencing headaches and skin rashes . Pasley and
Bruce asked Brodiske to look into the matter to see if a
particular skoating material might be causing the health
problems. Skoate is a coating material that is adminis-
tered into the molds, used to facilitate the manufacturing
process involving liquid molten steel.
Bruce obtained a label from the drum of skoate reflect-
ing the name of the manufacturer, Nelco Chemical Com-
pany. Bruce gave this to Brodiske and again asked him
to look into the matter . A few days later, Brodiske called
Nelco Chemical Company and talked to Kurt Hoff,
product manager since March 1982 . Brodiske gave Hoff
his correct name and address and then falsely stated that
he was an independent safety consultant who had been
hired by Respondent. Brodiske also stated that he was in-
terested in certain mold coating products including the
skoate and requested both an MSDS and product data
sheet on the materials . Hoff agreed to the request.
Before sending out the requested information, Hoff
called the Nelco district sales manager to verify Bro-
diske's request as legitimate . In the past , Nelco competi-
tors had called Hoff and attempted to obtain confidential
information by using various ruses. A short time later,
the sales manager called Hoff back to report the correct
status of Brodiske . Thereafter Hoff decided not to send
the requested information to Brodiske.
In his testimony , Brodiske admitted talking to Hoff,
but denied any misrepresentation about his status. I
credit Hoff on this point . Although not a completely in-
dependent witness in that his employer and Respondent
have a business relationship, I find that Hoff was person-
ally independent of the controversy in this case. I fmd it
highly unlikely that he would give false testimony to
protect his employment interests. I also noted his de-
meanor and his recall of the Brodiske call. Basically,
Hoff has nothing to gain in this case and I believe his
testimony.
After Hoff requested that the bona fides of Brodiske's
telephone call be verified, the sales manager-a man
named Vukelich-asked a subordinate of his named
James Clark to investigate . Clark testified that he is em-
ployed by Nelco as a technical services representative
who services customers of Nelco. One of these custom-
ers is Respondent . In early December , Clark talked to
Jim Wyatt, then melt shop superintendent for Respond-
ent. Wyatt, also a witness for Respondent, told Clark
Brodiske's correct status with the Company. Then Wyatt
wondered rhetorically why Brodiske wanted the infor-
mation, unless he was on a fishing expedition to cause
trouble for the Company. However, Wyatt denied telling
Clark not to give Brodiske the information and Clark's
testimony corroborated the testimony of Wyatt. Wyatt, a
25-year veteran of Ceco and Respondent , had been dis-
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged by Respondent 1 week before the hearing.
Under the circumstances , I found him without bitterness
and a highly credible witness.
Wyatt reported to Plant Manager Rochell that Bro-
diske had contacted Nelco Chemical seeking information
on the skoating material , but not that Brodiske had mis-
represented himself in attempting to get the information.
Rochell, former union president for 9 years and an em-
ployee for 24 years, testified that he requested counsel to
write a letter to Brodiske because of concern that Bro-
diske was interfering with Respondent's suppliers and
customers . That concern was based not only on Wyatt's
report to him, but also on rumors he heard around the
plant . These alleged rumors, from persons whose names
Rochell could not recall , were to the effect that Brodiske
intended to try and hurt Respondent because of the cir-
cumstances of his discharge.
Based on the request of Rochell , Attorney Thomas,
Respondent 's trial counsel and brother of Respondent's
CEO Thomas, wrote a letter to Brodiske . The letter
reads as follows (G.C. Exh. 14):
BELL, BOYD & LLOYD
A PARTNERSHIP INCLUDING
PROFESSIONAL CORPORATIONS
THREE FIRST NATIONAL PLAZA
SUITE 3200
70 WEST MADISON STREET
CHICAGO, ILLINOIS 60602
December 14, 1984
Mr. Jack Brodiske
315 Carol Road
New Lenox, Illinois 60451
Dear Mr. Brodiske:
Please be advised that this firm represents
Thomas Steel in regard to certain actions you have
taken to interfere with relations between the compa-
ny and certain of its suppliers.
Demand is herewith made that you immediately
cease all efforts to interfere with Thomas Steel
Company's business relations with its customers and
suppliers . Any further acts on your part to interfere
with such relationships will result in a lawsuit
against you for damages and an injunction.
You have already utilized the grievance proce-
dures set forth in the Collective Bargaining Agree-
ment with the United Steelworkers to resolve your
labor dispute with the company . In due course
those procedures will result in an appropriate deci-
sion with respect to your claim. The company in-
sists that you limit your efforts to the steps provid-
ed under that agreement.
Sincerely yours,
/s/ Edwin C. Thomas
B. Analysis and Conclusions
1. Introductory matters
All agree that Brodiske's discharge is not an issue in
this case . To this nonissue, I add additional matters
which need not be decided here . Thus, I need not decide
whether the surrounding circumstances of the 12 Octo-
ber welding job which Brodiske failed to perform re-
flected a genuine hazardous condition or whether Bro-
diske believed in good faith that a hazardous condition
existed . Similarly, Brodiske's complaints to OSHA need
not be evaluated by me for good faith . For the purposes
of this case, I find only that on 14 December , the date of
the letter in question, Brodiske was Respondent's former
employee.
2. Are former employees protected under the Act?
As a threshold issue, Respondent contends (Br. 7-8)
that because Brodiske was a former employee rather
than a current employee, he cannot be found to be a
victim of an 8(axl) violation. This claim must be quickly
rejected. In Little Rock Crate Co., 227 NLRB 1406
(1977), the Board defined "employee" under Section 2(3)
of the Act to mean "members of the working class gen-
erally" including "former employees of a particular em-
ployer."g In support of its argument, Respondent cites
NLRB v Texas Natural Gasoline Corp., 253 F.2d 322 (5th
Cit. 1958), a case reversing the Board on the issue of
who is entitled to the protection of the Act. I reject this
precedent because I am obliged to follow Board prece-
dent, which the Supreme Court has not reversed.4 Ac-
cordingly, Respondent's authority will not be followed
here.
3. Were Brodiske 's activities in issue concerted and
protected?
Having determined that Brodiske is not excluded from
coverage of the Act by virtue of his status as a former
employee, the next question is whether Brodiske was en-
gaged in protected concerted activities prior to receipt of
the 14 December letter recited above.
Contrary to the General Counsel, I find the only activ-
ity of Brodiske in issue is the contact with Nelco Chemi-
cal Company. The General Counsel appears to argue
(Br. 20-23) that the letter in question was caused not
only by the Nelco contact, but also by Brodiske's service
as a union officer and union committee chairman, Bro-
diske's encounter with Eulert on 12 October, Brodiske's
grievance-processing activities, Brodiske 's filing of
charges with the Board , and his contacts with OSHA.
There is no credible evidence to support a claim that the
letter in question was sent for any other reason than the
contact with Nelco Chemical.
In support of the above conclusion , I note the lan-
guage of the letter itself referring to interference "with
relations between the company and certain of its suppli-
ers." In addition , I note the testimony of Plant Manager
Rochell. Because Rochell requested counsel to write the
letter in question, his testimony about why the letter was
written is critical . Generally, I credit Rochell 's testimony
as found in the "Facts" above . My findings need not be
8 See also Waco, Inc., 273 NLRB 746, 747 fn. 8 (1984); Enterprise Ag-
gregates Corp, 271 NLRB 978 , 982 fn . 16 (1984).
4 Waco, Inc., supra, 273 NLRB at 749 fn 14 , citing Iowa Beef Packers,
144 NLRB 615 , 616 (1963).
THOMAS STEEL CO.
repeated. It suffices to say there was no reason to believe
that Respondent chose the letter to settle old scores for
Brodiske's other activities . Accordingly, I turn to review
Brodiske's contact with Nelco Chemical to see if these
activities were concerted and protected.
Briefly, I note that Bruce testified that he requested
Brodiske to continue as chairman-and only member-of
the Union's health and safety committee even after 12
October . Unlike the job of chairman of the workmen's
compensation committee , which Brodiske left after 12
October because that committee needed someone in the
plant, Brodiske remained as chairman of the health and
safety committee after Bruce allegedly requested that he
do so . This is difficult to believe . Brodiske testified that
his failure to be on company property hindered him to a
small extent but that he could still carry out his duties.
(R. Br. 129 .) I fail to see how he could perform his
duties if he was not in the plant . His duties included re-
ceiving health and safety complaints from unit members.
Allegedly, four to five members contacted him at home
after his discharge to complain about various matters.
This is in addition to member Pasley who allegedly com-
plained about the skoating material. None of these per-
sons testified . No minutes of the union meeting of 12 No-
vember were offered to prove Brodiske 's concerted ac-
tivities. Furthermore, as a former employee, Brodiske
was unable to meet with management representatives to
discuss safety and health issues . Nor could Brodiske per-
sonally observe safety or health hazards in the plant. For
all these reasons, I do not believe that Brodiske contin-
ued as the Union 's safety and health committee chairman
and only member after 12 October . I further fmd that
when he spoke to Hoff, he was not engaging in concert-
ed activities , but was acting as an individual. 5
In fording insufficient proof of concerted activity
based on credibility assessment, I emphasize that I do not
necessarily agree with the conclusions expressed in Re-
spondent's letter. The issue for me is not whether these
statements are accurate , but whether the letter addressed
Brodiske 's concerted activities . I find that the letter does
not.
In a further attempt to show the necessary concert of
action, the General Counsel argues (Br. 24) that in
making the call to Nelco, Brodiske was merely attempt-
ing to enforce a right under the labor contract "to ensure
that the employer was [making ] reasonable provisions for
the safety and health of its employees." (G.C. Exh. 2(a),
art. V, sec. 4, pp. 53-54.) If the General Counsel is cor-
rect, the Board's Interboro doctrine applies to this case.
That is, under this doctrine, the assertion by a single em-
ployee of rights derived from a collective -bargaining
agreement is protected under Section 7 of the Act on the
reasoning that the employee's act is an extension of the
concerted action that produced the agreement , and that
it affects the rights of all employees covered by the
agreement.°
See Meyers Industries, 268 NLRB 493 (1984), remanded sub nom.
Pri11 Y. NLRB, 755 F.2d 941 (D.C. Or. 1985).
a See Interboro Contractors, 157 NLRB 1295 , 1298 (1966), enfd. 388
F.2d 495 (2d Cir. 1967); see also NLRB v City Disposal Systems, 465 U.S.
822 (1984).
393
In agreement with Respondent (Br. 14-16), I find that
the Interboro doctrine does not apply to this case. In Re-
gency Electronics, 276 NLRB 4 fn. 3 (1985), the Board re-
ferred to the Interboro doctrine and the Supreme Court
decision approving the doctrine , NLRB v. City Disposal
Systems. Before this doctrine applies to a given case, the
Board noted , the employee must make an "honest and
reasonable invocation" of a collective-bargaining con-
tract. When this is done , the Board will find concerted
action "regardless of whether the employee turns out to
have been correct in his belief that his right was violat-
ed." In the present case, I find insufficient evidence that
Brodiske continued as the Union 's health and safety com-
mittee after his discharge . Even more improbable is the
claim that Brodiske was acting in the capacity when he
misrepresented his status to Hoff. I also ford on this
record no evidence that Brodiske honestly and reason-
ably invoked the collective -bargaining agreement. How-
ever, I cannot conclude , as Respondent does (Br. 16),
that Brodiske was engaging in a personal vendetta
against Respondent by contacting Nelco Chemical.' On
the other hand, I accept no responsibility to account for
Brodiske 's curious behavior except to find no concerted
activity under the Interboro doctrine.
Turning back to Meyers Industries, supra, 268 NLRB
at 497, the Board stated:
Once the activity is found to be concerted, an
8(a)(1) violation will be found if, in addition, the
employer knew of the concerted nature of the em-
ployee's activity, the concerted activity was pro-
tected by the Act, and the adverse employment
action at issue . . . was motivated by the employ-
ee's protected concerted activity.
Under these tests, this case must fail for additional rea-
sons beyond the lack of concerted action.
In Center Ridge Co ., 276 NLRB 105 (1985), the Board
found it unnecessary to determine whether particular ac-
tivity was concerted . Instead, it dismissed the case based
on the failure of proof to show that the employer knew
of the alleged concerted activity . Similarly, in the
present case, there is not a scintilla of evidence to sug-
gest that when Respondent sent the 14 December letter,
it knew or even could reasonably have suspected that
Brodiske was acting in concert with other individuals.8
The General Counsel's case is lacking still a third nec-
essary ingredient. I find Brodiske's call to Nelco Chemi-
cal was unprotected activity , basically for the same rea-
sons I found the call to Nelco to be individual rather
than concerted activity . In this regard , I rely primarily,
T I further disagree with Respondent that Brodiske had no authority to
contact third parties to enforce the labor agreement . Had I otherwise
found an honest and reasonable invocation of the labor agreement, the
call by Brodiske to Nelco may well have been concerted protected activ-
ity.
s See Center Ridge Co., 276 NLRB at 105 fn. 5, for authority predating
Meyers, requiring proof of employer knowledge of concerted activity to
establish an 8(a)(1) violation.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but not exclusively, on the misrepresentations concerning
Brodiske's status.9
In conclusion, I turn to examine the adverse employ-
ment action at issue-the 14 December letter reflected
above . Because I have found no protected concerted ac-
tivity, the letter could not have been motivated by these
activities . However , additional discussion is warranted.
It should be noted that longstanding Board precedent
holds that although the actual filing of a lawsuit is not an
unfair labor practice, the threat to do so is.1 ° Respond-
ent contends that the threat to sue to stop unlawful ac-
tivity does not violate the Act (Br. 21). I agree. Howev-
er, I do not find Brodiske 's actions in this case to have
been unlawful . It is one thing to find his actions to be
not concerted nor protected as I have done . It is quite
another to find his actions unlawful . Because this case
does not require me to find that his actions were either
lawful or unlawful . I decline to do so . It sufficies to say
that if it be found on review that Brodiske was engaging
in protected concerted activity by contacting Nelco
Chemical and that somehow Respondent knew that Bro-
diske was acting in a protected way on behalf of others,
then it follows that the letter in question would violate
the Act.I I
Respondent also argues that because the threat to sue
is contained in a private letter to Brodiske , there is no
violation because of a lack of chilling effect on the rights
of others (Br. 21). This claim must also be rejected. I
found above that Brodiske is considered to be an em-
ployee under the Act.12 Accordingly, his rights are vio-
9 See Socony Mobil Oil Co. v. NLRB, 357 F.2d 662, 664 (2d Cir 1966),
Producers Casting Agency, 246 NLRB 558 (1979); Roadway Express, 271
NLRB 1238 ( 1984).
10 See SE Nichols Marcy Corp., 229 NLRB 75 ( 1977). See also Bill
Johnson's Restaurant P. NLRB, 461 U.S. 731 (1983).
11 Clyde Taylor Co., 127 NLRB 103, 109 (1960).
12 The test of interference , restraint, and coercion under Sec . 8(a)(1) of
the Act "is determined by whether the conduct may reasonably be said
to have a tendency to interfere with the free exercise of employee rights
under the Act." Waco, Inc., supra, 273 NLRB at 748. Under this test, I
lated by the letter, again, only if he is found on review
to have been engaging in concerted protected activities
and if the employer knew of these concerted protected
activities when it sent the letter. However, because I
have found to the contrary , I am required to recommend
that this case be dismissed.13
Dismissal of Complaint14
CONCLUSIONS OF LAW
1. The Respondent , Thomas Steel Company, is an em-
ployer within the meaning of Section 2(2) of the Act, en-
gaged in commerce and in an industry affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union, United Steelworkers of America, AFL-
CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed's
ORDER
It is recommended that the complaint be dismissed in
its entirety.
would find an 8(a)(1) violation in this case but for the absence of proof
on the key elements concerted , protected activities and employee knowl-
edge.
15 Compare Esco Elevators, 276 NLRB 1245 (1985).
14 In light of my analysis and conclusions, it is unnecessary to consider
what effect, if any , the Illinois Toxic Substance Disclosure to Employees
Act, contained in the appendix to Respondent 's brief, would have on the
issues contained in this case.
15 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 pur-
poses