ARO, Inc.

National Labor Relations Board - Board Decisions

Dec 13, 1976

227 N.L.R.B. 243 (N.L.R.B. 1976)

ARO, INC.
ARO, Inc. and Mary Marvleen Williams . Case 26-
CA-5876
December 13, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On July 19, 1976, Administrative Law Judge
Russell M . King, Jr., issued the attached- Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the, record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge recommended dis-
missal of the allegation that Respondent ARO, Inc.,
violated Section 8(a)(1) by refusing to rehire Mary
Marvleen Williams because of her complaints about
the order of a layoff. He found that she was not
engaged in protected concerted activity. We find
merit in the General Counsel's exception to this
finding.
Mary Marvleen Williams started working for the
Respondent on January 15; 1975,1 as a janitor-
cleaner . Three additional janitor-cleaners were hired
around this time : David Tipps on January 13,
Margaret Lawson on January 14, and George Propst
on January 16. Tipps, Lawson, and Williams were
hired as temporary employees; Propst was-hired to
fill a permanent position.
A collective-bargaining agreement exists between
the Respondent and the Air Engineering Metal
Trades Council and Affiliated Unions, AFL-CIO,
with the job classification ofjanitor-cleaner designat-
ed therein.2 Williams was given a copy of this
agreement the day she started work. The contract
requires all employees without any distinction be-
i All dates refer to 1975 unless otherwise indicated.
2 This agreement will be in effect until February 28, 1978.
3 Bishop and Crutchfield, who also supervised Williams on occasion,
were not called as witnesses.
4 E. A. Sons, business manager of the Union, stated that Williams
complained to him about the layoff in April. He informed her that he was
unable to file a grievance for her.
5 In the meantime Tipps and Lawson were rehired in June.
s The parties stipulated that Williams was not terminated nor refused
recall because of any shortcoming in her work performance.
7 The Administrative Law Judge in in. 22 of his Decision made the
gratuitous comment that he was "mindful of the problems that Section 10(b)
of the Act would impose had the General Counsel attempted to revert back
to the termination date [April II ] in the alleged violation ." He went on to
227 NLRB No. 43
243
tween permanent and temporary to serve a 90-day
probationary period; at its completion the employees'
seniority rights begin and revert to their starting date.
Williams, Tipps, and Lawson were laid off-on April
11 before completion of their probationary period.
Williams had heard rumors of the layoff which were
confirmed by her supervisor, James Bishop,3 on April
4. Williams asked Bishop why Propst was not being
laid off since he had been the last to start work. She
then made a similar inquiry of Supervisor Crutch-
field, again relying on, at least her understanding of,
the contract. On the night of the layoffs, Williams
complained to Shanks, Respondent's employment
administrator, about the order of layoff; she again
mentioned the contract .4 After this discussion Shanks
informed Rutland, his supervisor, that Williams was a
complainer.
Williams thereafter called Shanks monthly inquir-
ing about the possibility of reemployment.5 On or
about October 22, Williams discovered Lawson had
left a permanent janitor-cleaner position, and called
Shanks requesting Lawson's job. Shanks told Wil-
liams she would not be rehired because of her
complaining; 6 he told her that her complaints had
created a disturbance and that she had no right to
question the order of layoff.?
The Administrative Law Judge found Williams had
no seniority status or rights under the contract, and
that the motivation for her complaints stemmed from
a lack of understanding of the contract and her desire
for personal gain . As such he concluded Williams was
acting for herself only and was not engaged in
protected concerted activity. With these findings we
disagree.
The Administrative Law Judge did not view this
case as involving the question of whether or not
Williams' complaint had merit. We agree since the
Board has long held that the merit of the employee's
complaint is irrelevant to the issue of whether the
employee is engaged in protected concerted activity.8
Nonetheless he went on to find that Williams did not
understand the contract and had relied on rights
specifically abrogated by the contract.9 Whether she
understood the contract is irrelevant; Williams'
remark that "the General Counsel concluded , for reasons unknown, that the
Respondent decided to October not to rehire Williams because of her
inquiries or `complaining.' " The obvious answer to this remark is that no
violation was alleged to have occurred in April since the unfair labor practice
was committed when Respondent decided not to rehire Williams and told
her on October 22 that her continuous complaints about the layoff was the
reason for this decision ; until then there was no reason to allege that an
unfair labor practice had been committed.
3 Mushroom Transportation Co, Inc., 142 NLRB 1150, 1158 (1963),
reversed on other grounds 330 F.2d 683 (C.A. 3, 1964); Interboro Contractors,
Inc., 157 NLRB 1295, 1298 ( 1966), enfd. 388 F.2d 495 (C.A 2, 1967).
9 The record shows not only that Williams had read those provisions of
the contract dealing with seniority and probationary status , but was relying
on them in voicing her objections to the order of layoff
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reliance on its provisions brings her actions within the
realm of protected concerted activity.10
We also disagree with the Administrative Law
Judge's conclusion that Williams' only concern was
retentionof her jab and, this being the case, that there
was an absence ' of concerted activity. It is not
necessary for employees to band together and overtly
manifest by physical action their discontent before it
will be found that their activity is concerted. In Hugh
H. Wilson Corporation 11 the Board held that if the
matter at issue concerns the group of employees and
is brought to management's attention by a volunteer
acting in their interest this will be deemed sufficient
to invoke the Act's protection. Even individual
protest which redounds to -the group's benefit is
protected concerted activity.12 Williams discussed the
layoff with a fellow employee, a union representative,
and several of Respondent's supervisory personnel. If
her contention was correct it would have immediately
benefited another employee, not Williams. Individual
complaints of this sort are similar to grievances, and
since they will have- an effect on all employees, the
Board has taken the position that such conduct is
protected by the Act.13
The Administrative Law Judge found and Respon-
dent's employment administrator stated that Wil-
liams was not rehired because of her complaints.
Having determined that these complaints constitute
protected concerted activity within the meaning of
Section 7 of the Act, we find Respondent violated
Section 8(a)(1) by refusing to rehire Mary Williams.
REMEDY
Having found that the Respondent has engaged in
an unfair labor practice in violation of Section 8(a)(1)
of the Act, we shall order the Respondent to cease
and desist therefrom and°from in any other manner
infringing upon its employees' Section 7 rights, and
take certain affirmative action, including reinstate-
ment and backpay, designed to effectuate the policies
of the Act. The backpay shall be computed on a
quarterly basis in the manner set forth in F. W
Woolworth Company, 90 NLRB 289 (1950), with
interest thereon at the rate of 6 percent per annum, as
set forth in Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
CONCLUSIONS OF LAW
1. ARO, Inc., the Respondent, is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. By refusing to rehire Mary Marvleen Williams
on October 22, 1975, because of her protected
concerted activities, the Respondent has engaged in
an unfair labor practice within the meaning of
Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act. -
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
ARO, Inc., its officers, agents, successors, and
assigns, shall: -
1. Cease and desist from:
(a) Refusing to -recall or rehire employees for
engaging in protected concerted activities.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of, rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer Mary Marvleen Williams immediate and
full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or other rights and
privileges, and make her whole for any earnings she
lost, plus interest, as a result of Respondent's failure
to recall heron October 22, 1975.
(b) Preserve and, upon 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 analyze the amount of
backpay due under the terms of this Order.
(c) Post at its facilities in Tullahoma, Tennessee,
copies of the attached notice marked "Appendix." 14
Copies of said notice, on forms provided by the
Regional Director for Region 26, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous, places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
10 Merlyn Bunney and Clarence Burney, d/b/a Bunney Bros Construction 14 In the event that this Order is enforced by a Judgment of a United
Company, 139 NLRB 1516 (1962). States Court of Appeals, the words in the notice reading "Posted by Order of
11 171 NLRB 1040 , 1046 (1968), enfd. 414 F.2d 1345 (C A. 3,1969). the National Labor Relations Board" shall read "Posted Pursuant to a
12 Id at 1046. - Judgment of the United States Court of Appeals Enforcing an Order of the
13 Interboro Contractors, supra. National Labor Relations Board."
ARO, INC.
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
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 having found,
after a, hearing, that we violated Federal law by
refusing to recall an employee for engaging in
protected concerted activities, we hereby notify you
that:
The National Labor Relations Act gives all employ-
ees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other aid or protection
To refrain from any or all these things.
WE WILL NOT refuse to recall or rehire you for
engaging in protected concerted activities.
WE WILL NOT in any other manner interfere
with you or attempt to restrain or coerce you in
the exercise of the above rights.
WE WILL offer Mary Marvleen Williams imme-
diate and full reinstatement to her former job or, if
that job no , longer exists, to a substantially
equivalent position, without prejudice to her
seniority or other rights and privileges, and we will
make her whole for any earnings she lost, plus
interest, as a result of our refusal to recall her on
October 22, 1975.
ARO, INC.
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING, JR., Administrative Law Judge: This
case was heard by me in Manchester, Tennessee, on
February 12, 1976. The charge was filed by the individual
(Williams) on October 22, 1975,1 and the complaint was
245
issued on December 4, 1975, alleging that ARO, Inc.,
(Respondent) violated Section 8(a)(1) of the National
Labor Relations Act, as amended (the Act) by refusing to
recall or rehire Williams because of her protected concerted
activities.2
Upon the entire record, including my observation of the
witnesses and their demeanor,3 and after due consideration
of the briefs filed by the General Counsel and the
Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in aeronautical
research and development at its facilities in Tullahoma,
Tennessee. As such and during the past 12 months, the
Respondent has purchased and received products valued in
excess of $50,000 directly from points located outside the
State of Tennessee, and during the same period, the
Respondent has sold or shipped products valued in excess
of $50,000 directly to points located outside of Tennessee.
The Respondent admits, and I fmd, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
I further find, as admitted, that Air Engineering Metal
Trades Council and Affiliated Unions, AFL-CIO (the
Union), is a labor organization within the meaning of
Section 2(5) of the Act .4
II. ALLEGED UNFAIR LABOR PRACTICE
Summary of Evidence
Mr. Robert Fred Shanks is employed by Respondent as
an employment administrator, working in the personnel
office. In that capacity, Shanks receives employment
applications and requisitions, arranges for employment
interviews, and makes employment offers. During 1975,
Shanks was supervised by James M. Rutland who was
manager of the personnel relations branch 5
Shanks indicated that the unit employees were paid
hourly and that Williams was hired on January 15 as a
"temporary" janitor-cleaner at $4.26 per hour in accor-
dance with the wage scales set for in the union contract .6
1 All dates are in 1975 unless otherwise stated.
2 Williams had been laid off or terminated April 11. The parties are in
agreement and-admit herein that the termination was not violative of the Act.
3 The facts found herein are based on the record as a whole upon my
observation of the witnesses. The credibility resolutions herein have derived
from a review of the entire testimonial record and exhibits with due regard
for the logic of probability, the demeanor of the witnesses, and the teaching
of N.LR.B. v. Walton Manufacturing Company & Loganvtlle Pants Company,
369 U.S. 404, 408(1962). As to those witnesses testifying in contradiction to
the findings herein, their testimony has been discredited, either as having
been in conflict with the testimony of credible witnesses or because it was in
and of itself incredible and unworthy of belief. All testimony has been
reviewed and weighed in the light of the entire record.
4 The Union, not a formal party in this case , represents the Respondent's
operations, maintenance, repair, modification, and service employees.
Williams was not a union member but her job fell within the unit. However,
she was a "temporary" employee and that term, and the standing of a
temporary employee in the unit, will be discussed later herein.
5 Rutland, who testified at the hearing, retired in January 1970.
6 The contract was introduced into evidence and in Appendix A thereof
(Continued)
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Three other employees were also hired during the same
period as follows:
a. On January 13, David M. Tipps, temporary,
janitor-cleaner.
b. On January 14, Margaret Neal Lawson, tempo-
rary, janitor-cleaner.
c. On January 16, George S. Propst, "permanent" 7
janitor-cleaner.
Shanks further testified that the "probationary" period for
all 4 employees was 3 months and that Williams, together
with employees Tipps and Lawson, were all hired as
"temporary" (as opposed to "permanent") janitor-cleaners,
were terminated on April 11, and before the expiration of
the 3-month probationary period.
Sometime prior to the terminations and on or about April
11, after the terminations had apparently been announced,
Shanks testified that he and Williams had a conversations
wherein Williams, according to Shanks, did not mention
the union contract but did bring up "seniority" and
inquired as to why employee Propst was not also being laid
off. Shanks testified that he thought Williams was talking
about "[s]emority, per se" without reference to the union
contract. Shanks attempted to explain to Williams that
Propst was kept because he was "hired as a permanent
employee," but Williams, according to Shanks, did not
understand (or was not satisfied with) the explanation.9
Sometime thereafter Shanks reported to Rutland (person-
nel relations branch manager) that Williams "was a
complainer," presumably because she had, in effect, com-
plained of her termination in absence of that of employee
Propst.10 Shanks indicated -that both Tipps and Lawson
were later rehired, on June 2 and 24, respectively, and went
on to receive or obtain "permanent" status with the
Respondent.11 Shanks also testified that Williams contact-
ed him "approximately monthly" after her termination
seeking reemployment, to which he would reply that "she
would be considered . . . if the job came open." 12 Lawson
voluntarily resigned on October 10 and according to
Shanks, her job was thereafter "posted." Shanks testified
that Williams again contacted him "during [the] month of
October" regarding reemployment and filling Lawson's
"permanent janitorial position," whereupon he informed
her that her "complaining . . . was the reason that she was
not going to be rehired." 13,
Williams initially testified that she was laid off on April
11, for "lack of work." 14 Her immediate supervisor was
James Crutchfield and according to Williams, they both
had a conversation together "on or about" the termination
date 15 and wherein Williams again asked (or complained)
about the fact that Propst was remaining although he had
less seniority. According to Williams, Crutchfield replied
that "he didn't know why that was, that he didn't know that
he [Propst] was really on a permanent basis, how they
based it." 16 Williams further testified that in the conversa-
tion with Crutchfield she mentioned the contract, pointing
the job classification does appear with a salary of $4.26 per hour for the first 6
months . However, records introduced in the case indicated that Williams
made $3.90 per hour The discrepency was explained in later testimony A
wage increase went into effect subsequent to the hiring of Williams and the
new scale appears in the contract
r The significance of "probationary" and "temporary" or "permanent"
employees will be discussed later . A new "permanent" employee, or new
employee filling a "permanent" position is yet a "probationary" employee
for 3 months, but once he has worked 3 months. his seniority date reverts
back to his origmal date of hire and he is no longer a probationary employee
The union contract does not define the term "temporary" employee except to
indicate that they "may be hired to perform temporary-work " The contract
further provides that termination of "probationary" employees shall not be
subject to the contract 's grievance preceduies . "Temporary" employees are
hired, as Respondent's written employment procedures state, "for temporary
work or to fill jobs during the absence of regular employees " However, and
according to Shanks, the 3-month probationary period also applies to
"temporary" employees (new employees filling "temporary"jobs) and it thus
appears that a temporary employee who works longer than 3 months
becomes a "permanent" employee (regardless of his job designation or
classification) and receives credit, for seniority purposes, for the probation-
ary period while a "temporary" employee, thus and thereafter obtaining full
and permanent status in the unit . The contract applies these principals
unquestionably to new employees hired as "permanent" employees. Shanks
further, and in testimony, defined "temporary employment" as "any short
term employment for an indefinite period . to perform temporary work."
Under the union contract, and according to Shanks, when a temporary job
lasts more than 3 months, it then becomes (and is designated as) permanent,
and is thereafter "posted " I conclude that if a new and temporary employee
is initially hired to fill a "temporary " position or job, at or near the end of a 3-
month period the Respondent is faced with the decision (and result ) of either
terminating the employee (and thus the job) or retaining the employee,
thereafter in a "permanent" (or nonprobationary) status, and if in the same
job, having created a permanent and lasting formal position subject to
"posting" and being subsequently filled through and by the seniority
procedures as set out in the union contract . The creation of additional
"permanent" jobs or positions would, of course, have far-reaching effects in
and on labor-management relations . Management would of course be
hesitant in the creation of such new positions while the Union would
encourage the same although here, by contract , the Union has in effect
acknowledged the Respondent's unilateral right and choice in the matter
s- Williams , in testimony, denied this conversation prior to her layoff.
9 Here again looms the difficult distinction between "temporary" and
"permanent" employees or positions . I take Shanks' reference here to
"permanent employee" to mean that the position employee Propst was filling
was a permanent position , while Propst himself was still a "probationary"
employee
io As earlier recited Williams was hired January 15 as a "temporary"
janitor-cleaner Propst was hired January 16 as a "permanent" janitor-
cleaner.
i1 Lawson , according to Shanks, was again laid off bacause of a
"reduction in force" on June 27 (after obtaining permanent status on June
26), but was later rehired on August 25. The record does not reflect whether
or not any other temporary or permanent janitor-cleaners were hired or
recalled during the period between the termination date (April 11) and the
date of the charge (October 22).
12 It is uncertain as to whether Shanks referred here to Williams' former
and specific job or any insular type of job. I also note here that, according to
Shanks, the job that Lawson was recalled to or in itself became designated as
"permanent" after Lawson's reemployment in June. Propst's job or position
itself was "permanent" at the time of his initial employment on January 16.
i3 Again I conclude that the term "complaining," as used here by Shanks,
refers to their conversation regarding "seniority" which took place just
before the termination in April , and further to the fact that the subject was
(at least inferentially) brought up with each subsequent and monthly
reemployment inquiry by Williams.
34 It was stipulated by the parties that Williams "was not terminated
because of any shortcoming in her performance . . [and that the Respon-
dent ] did not refuse to rehire her because of it "
15 In cross-exanunation Williams placed this conversation on April 4 and
after a conversation with another supervisor (Bishop ) on the same date.
16 The employment letters of Williams, Tipps, Lawson, and Propst were
introduced into evidence and reflect that, out of the four, only Propst was
designated as "permanent," the remaining letters indicating "temporary"
employment. I again here conclude that these two terms so used referred to
the actual position, and that all were "probationary" employees at the outset
ARO, INC. 247
out that "all new employees [were] on 90 days proba-
tion."17 Williams also testified that she had two conversa-
tions regarding her layoff with Supervisor J. H. Bishop.18
The first conversation was on April 4, when, according to
Williams, she was initially informed of the layoff by Bishop.
Williams also related that she then asked Bishop who else
was going to be laid off and upon finding out that Propst
was to remain, she asked Bishop why, to which he replied
that "he was hired permanent." The second conversation
with Bishop took place on April 11 (the date of the layoffs),
whereupon, according to Williams, Bishop told her "that
he'd almost guarantee us 19 we'd get called back to work."
Williams also acknowledged that she called and talked to
employment administrator Shanks periodically after she
left, mentioning on at least one occasion the retention of
Propst, and that during the last call on October 21 or 22,
Shanks indicated that she would not be recalled because
she had "caused a disturbance ... because [she had]
questioned why they kept Propst and laid Lawson, Tipps,
and [herself] off." Williams conceded, on cross-examina-
tion, that all of her inquiries (or complaints) were on her
behalf only and that she understood that no employee had
any seniority until after 90 days.
James M. Rutland retired on January 31, 1976, after
almost 20 years with Respondent. He had held the position
of manager of the personnel relations branch prior to
retirement and in testimony, he summarized the Respon-
dent 's history with the Union, which he indicated had been
virtually continuous (and by contract) throughout his
employment. In Rutland's position with Respondent, he
had been involved with labor relations and he had been "in
all the negotiations from 1953 forward." In his testimony,
Rutland appeared to make a distinction between "proba-
tionary" and "temporary" employees, confining "proba-
tionary" employees to those filling only "permanent"
positions . Rutland would also label an employee holding a
permanent position as a "permanent employee, regardless,
apparently, of whether or not the 3-month probationary
period had been completed. Rutland further indicated that
permanent employees (those hired into "permanent posi-
tions) were given "pretty strict pre-employment checks," as
opposed to temporary employees, and that temporary
17 Sec. 3 of the contract provides, in part, as follows:
A new pennanent employee shall be considered a probationary employ-
ee for the first three (3) calendar months of employment in a single
seniority group . . . and at the end of this period, if he is retained, his
name shall be placed on the seniority list .... [Emphasis supplied.]
Sec. 8 of the contract further provides as follows
When decreasing the work force, probationary employees, apprentices
and trainees in the affected seniority group shall be the first to be laid
off. When it becomes necessary to lay off employees in any job
classification within a seniority group, the employees having the least
seniority shall be laid off first
18 Neither Bishop nor Crutchfield testified at the hearing According to
Williams, Bishop was Crutchfield's supervisor
19 The term "us" meaning, presumably, Williams, Lawson, and Tipps, the
threejanitor-cleaners who were all laid off on April 11.
20 This view was also expressed in testimony by Mr. E A Sons, the
Union's business agent Sons had talked to Williams "about the time that she
was laid off" and advised her that the Union could not file a grievance under
the terms of the contract, indicating that she should "check with the National
Labor Relations Board."
employees were "the first to go" in the case of a layoff or
reduction in the work force. Further and according to
Rutland, neither "temporary" or "probationary" employ-
ees have seniority rights with the Respondent and under the
terms of the contract 20
Evaluation of Law and Evidence and Initial
Conclusions of Law
The General Counsel charges herein a violation of the
Act "on or about October 13," 6 months after Williams'
termination . This date comes in approximate concert with
the voluntary resignation of Lawson and the final telephone
inquiry by Williams to Shanks and wherein Shanks
indicated that her "complaining ... was the reason that
she was not going to be rehired." Employees Tipps,
Lawson, Williams, and Propst had originally been hired
within 4 days of each other and on January 13, 14, 15, and
16, respectively. On April 11, Tipps, Lawson, and Williams
were terminated and during the 6 month period which
followed, Williams had seen Propst remain and Tipps and
Lawson rehired. Williams' only concern I find was her own
retention or reemployment. Her initial inquiries were
naturally directed towards Propst, the only one in the group
with a starting or employment date subsequent to hers.21 In
October, when Williams discovered that Lawson had
resigned, she understandably called Shanks again. By
starting the alleged violation in October I can only infer
that the General Counsel concluded that Williams had no
actual rights under the contract (at least until after Lawson
resigned in October).22
The Respondent, I find, had in reality three categories of
employees; 23 namely, permanent, permanent-probation-
ary, and temporary-probationary. A permanent employee
is one that merely has worked for the Respondent for more
than 3 months. A permanent-probationary employee is one
that holds or fills a "permanent" position but has not yet
worked for 3 months. A temporary-probationary employee
is one who is filling a temporary position and who has not
worked for 3 months. Once a temporary-probationary
employee remains longer than 3 months he becomes a
permanent employee by virtue of a system of credit, and
whereby his initial 3-month period as a temporary employ-
21 The General Counsel argues that Tipps would have been the potential
beneficiary of Williams' inquires about Propst. The record and evidence does
not support this contention
22 I am mindful of the problems that Sec. 10(b) of the Act would impose
had the General Counsel attempted to revert back to the termination date
(April 11) in the alleged violation. However, such would not have been the
case if the violation was started with the rehiring of either Tipps or Lawson in
June Williams' inquiries were continuing during this period. Thus, it appears
further that the General Counsel concluded, for reasons unknown, that the
Respondent decided in October not to rehire Williams because of her
inquiries or "complaining."
23 There were also two types of positions; namely, permanent and
temporary. It appears that the type of position had no actual affect on
seniority rights under the general framework of the contract, the key being
whether or not the employee worked more than 3 months, regardless of the
type of position held. Propst was initially hired into a permanent position.
There is no evidence in the record to indicate whether or not Propst's
position was "posted" prior to his employment or why it was not filled
internally The contract, however, required posting and since the position
was permanent, it is understandable that the Respondent would want the
position filled over that of temporary positions because of the need for the
work product or to avoid an additional posting process, or both.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ee is credited and the probationary period required perma-
nent-probationary employees is waived.24
I find in this case that Williams had no seniority status or
rights under the contract and that her inquires" or comp-
laints were thus regarding rights that did not exist. I do not
view this case as involving the question as to whether or not
Williams' complaint had merit. Although it did not, as I
have concluded above, I find that the Respondent did
attempt an explanation on several occasions through
Supervisors Shanks and Bishop. I am also mindful that
Williams did mention the contract (or the "book") in her
complaint but it is the contract itself that, while ambiguous
in many areas, clearly denies seniority and its grievance
procedures to all employees during the first 3 months of
employment.
Williams was never, asked whether she had read and
understood the contract. However, it is clear that she did
not understand Propst's_retention over her termination and,
as I found earlier, she was only concerned with retaining or
getting her job back. Williams' conduct was motivated by
her lack of understanding and her personal desires to be
employed. The very authority she cited on her behalf (the
contract) was the same authority that clearly denied her the
seniority right she sought to enforce. I find it impossible to
stretch -the facts of this case to meet the Board's judicial
precedents defining and encompassing protected concerted
activity. The actions of Williams in this case I thus find and
conclude were not concerted activity and were purely
personal.
CONCLUSIONS OF LAW
1. Respondent is an employer , engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent did not violate Section 8 (a)(1) of the
Act by its actions as alleged in the complaint and reflected
in the record in the case.
[Recommended Order for dismissal omitted from publi-
cation.]
24 The union contract mentions "temporary employees" only once and in Temporary employees may be lured to perform temporary work;
sec. II entitled "Job Posting." The clause reads as follows- however, if the job continues for a period of three (3) months, the
position will be posted in accordance with this section.