Corry Jamestown Corp.

National Labor Relations Board - Board Decisions

Sep 22, 1978

238 N.L.R.B. 320 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corry Jamestown Corporation and Carol L. Baccus.
Case 6-CA- 10360
September 22, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELI.O
AND TRUESDALE
On July 20, 1978, Administrative Law Judge Rob-
ert M. Schwarzbart issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions to the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions' and has
decided to affirm the rulings, findings,2 and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Corry Jamestown
Corporation, Corry, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
IRespondent's request for oral argument is hereby denied, as the record
and the exceptions adequately present the issues and the positions of the
parties.
2 Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the
record and find no basis for reversing his findings.
DECISION
SIATEMENT OF tIlE CASE
ROBERT M. SCHWARZBART, Administrative Law Judge:
This case was heard in Erie, Pennsylvania, on October 25
and 26, 1977,' based upon charges filed by Carol L. Baccus,
an individual,' and a complaint which issued August 30.
The complaint alleged that Corry Jamestown Corporation,
herein the Respondent, violated Section 8(a)(l) and (3) of
the Act by discharging or laying off Baccus on April 22
All dates hereinafter refer to 1977 unless otherwise noted.
2 The onginal and amended charges were filed on June 30 and August 25,
respectively.
because she had engaged in union or protected concerted
activities. The Respondent, in its answer, denies the sub-
stantive allegations of the complaint and the commission of
unfair labor practices.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Briefs, filed by the General
Counsel and the Respondent, have been carefully consid-
ered.
Upon the entire record of the case and my observation of
the witnesses and their demeanor, I make the following:
F INDINi(S OF FA('I
1. 'IHE BUSINEiSS O()F II1 RESPONIDiNI
The Respondent, an Iowa corporation, with its principal
office located in Corry, Pennsylvania, is engaged in the
manufacture and nonretail sale and distribution of metal
office furniture.
During the 12-month period immediately preceding the
issuance of this complaint, a representative period, the Re-
spondent received goods and materials valued in excess of
$50,000 at its Corry facility directly from points outside the
Commonwealth of Pennsylvania. The Respondent admits.
and I find, that it is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
11. IHE l.ABOR OR(iANIZAI()N INVOI.VN I)
Lodge No. 1097, International Association of Machinists
and Aerospace Workers, AFL-CIO, herein the Union, is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR L.ABOR PRA(CTIC(ES
A. The Facts
The Respondent and the Union have been parties to a
series of collective-bargaining agreements covering the pro-
duction and maintenance employees employed by the Re-
spondent at its two metal furniture manufacturing plants in
Corry, Pennsylvania.3 The current contract, effective from
September 3, 1975, to September 1, 1978, provides for a
probationary period for new employees of 8 weeks from the
time of their employment, during which time such new em-
ployees may not be placed on the seniority list and during
which the Respondent reserves the right to transfer, sus-
pend, and discharge them without regard to protections af-
forded under the terms of the contract to employees who
have completed their probation.
It is uncontroverted that fobr the 5 or 6 years which pre-
ceded the events described herein, the Union has disputed
the Respondent's practice of assigning employees in grade
74 to do their own trucking. Trucking consists of the use by
certain production employees of four-wheeled batter)y or
manually powered four-wheeled vehicles called jacks to
3The employees at the two plants comprise a single unit.
The Respondent compensates its production employees in approximately
13 pay grades, with employees in the more highly numbered grades receiving
the greatest compensation
238 NLRB No. 52
320
CORRY JAMESTOWN CORPORATION
move goods they have finished processing away from their
machines, either to another production area for additional
processing or for inspection. The jacks also are used in the
scrap-dumping procedure whereby employees, on conclud-
ing their shifts, are expected to empty the receptacles at the
bottoms of their machines of scrap metal accumulated dur-
ing the workday, by trucking such containers to a desig-
nated area and there emptying these receptacles. The
Union does not question the right of the Respondent to
require that employees in grade 8 and above do their own
trucking but contends that the job descriptions of those in
grade 7 do not include trucking. Although the Respondent
has continued to assign trucking to grade 7 employees, the
Union has never filed a grievance on this point.'
Carol L. Baccus again became employed by the Respon-
dent on February 28, when she began to work in the Re-
spondent's press department on the 3:30 p.m. to midnight
shift as a probationary employee., preparatory to a grade 7
position.
On or about April 20, William A. Mitchell. assistant fore-
man of the press department on Baccus' shift and her im-
mediate supervisor, called a meeting of the approximately
12 press department employees. including Baccus. assigned
to that shift.' Mitchell told the assembled employees that he
expected everyone thereafter to do their own trucking, in-
cluding the grade 7 employees. Mitchell stated that he had
noticed that Lawrence Clark' had been doing this work for
them, but that it was not part of his job, as Clark had other
work to perform. Mitchell then spoke of the need to take
certain specified safety precautions, cautioned against ob-
taining new safety gloves before the ones they had were
sufficiently worn out, and announced that he expected the
employees to clean up around their machines not just at the
end of their shift. but whenever they completed a job. The
employees were again reminded that when a job was done
they were expected to truck their loads to the next work
area for inspection.
Clark testified that earlier that evening he had been asked
by Mitchell if he was doing most of the trucking for the
' Although the Union's position that trucking not done by grade 7 employ-
ees predates the 1975 effective date of the current collective-bargaining
agreement and rests upon the content of the job descriptions, that agreement
expresses the parties' accord that dunng the preceding contract negotiations,
the rates for all existing job classifications had been reviewed and agreed
upon. Accordingly. the Respondent has taken the position that under the
terms of the present contract, which, as noted, was negotiated dunng the
pendency of this dispute, it may assign grade 7 employees to perform truck-
ing. This decision is in no sway addressed to the merits of this dispute.
6 Baccus previously has been employed by the Respondent as a spot
welder in the welding department from April to October, 1974, when she was
laid off for economic reasons. The report prepared by the Respondent at the
time of her 1974 layoff showed that she had been rated as a good employee.
Having been laid off for than 6 months. Baccus lost her onginal seniority, as
provided in the contract, and upon her return to the Respondent's employ in
early 1977, she began again as a new probationary employee.
7 Mitchell had replaced Roy Benedict as assistant foreman on the night
shift of March 14, after Mitchell had worked for the.Respondent for about 5-
1/2 years as production employee. In this time, he had served 2 years as a
union committeman. Committeemen are employee union representatives
who are assigned to each department of six or more employees to give sup-
port to employees with grievances or other job-related difficulties, serving as
spokesmen and initiating grievances. as applicable. Committeemen report, in
their union capacity, to the plant shop steward.
' Clark, a leadman and setup man on Mitchell's shift and a longtime em-
ployee, received work assignments from Mitchell and distributed them
among the employees. Clark also checked whether the work was being prop-
erly perlormed.
grade 7 employees. When Clark admitted that he had been
so doing, Mitchell told him that from then on, grade 7 em-
ployees would do their own trucking. Clark testified that in
so doing he had been helping approximately five female
employees on the night shift, including Baccus, and had
been making about 8 to 10 trucking trips per shift. After
receiving Mitchell's instructions, as reiterated at the meet-
ing that evening, Clark discontinued trucking for other em-
ployees.
Within 1-1/2 hours after the end of the employee meet-
ing called by Mitchell, Baccus stopped Roy Benedict, the
night shift supervisor to whom Mitchell reported, while he
was passing by and asked if it was in the Union contract
that grade 7 employees were to do their own trucking.
Benedict replied, "No, but it's in Chuck's book."9 When
Baccus replied that McFate, naturally, would say that,
Benedict told her that that was his answer to her, too. He
also stated that he did not like to have employees, particu-
larly probationary employees, questioning his supervisors.
Baccus returned to work.
On Friday, April 22, shortly after Baccus started work,
Mitchell appeared and announced that he was very sorry
but that he was going to have to lay her off. In response to
her inquiry, Mitchell told Baccus that she was being laid off
because her attitude in general and her attitude with regard
to running the jacks was not good. When Baccus protested
that she did not have any attitude one way or the other, he
repeated that her general attitude was not for the better-
ment of the Company and that she would have to leave the
premises by supper time 8:30 p.m. According to Baccus,
Mitchell denied her accusation that he was firing her, stat-
ing that he only was laying her off. Baccus related that she
gathered her possessions and went to see supervisor
McFate, asking McFate what this was all about. McFate
invited her into his office and told her that her attitude was
no good and that she had to learn to work with manage-
ment. When Baccus protested that she did work with man-
agement, McFate called Mitchell into the office to explain.
On joining them, Mitchell again told Baccus that her atti-
tude was no good and that she had tried to find a commit-
teeman. Baccus stated that someone had been lying to him
about that. 0 Baccus told the two men to forget the whole
thing, that she was going to leave, which she did.
That evening Baccus notified William A. Dean, the
union president," of her termination on the last day of her
probationary period. Dean thereafter arranged for a meet-
ing with Robert W. Sparkes, the Respondent's manager of
manufacturing, who had overall responsibility for produc-
tion and labor relations at the Respondent's two Corry
plants.
Accordingly, on the afternoon of May 5, a meeting was
held in the Respondent's offices, attended by Sparkes,
4 Benedict's reference was to Charles McFate, supervisor of the machine
department, to whom he and Mitchell reported. McFate usually worked in
the plant from 7 a.m. to 3:30 p.m.
'° Mitchell corroborated Baccus' testimony that he had referred to her
attempt to find a union committeeman during his meeting with Baccus and
McFate. Mitchell testified that right after his April 20 meeting with the
employees, he had overheard Baccu.s ask another employee for the name of
the committeeman fo)r the punch press department The employee had re-
plied that there was none and that she would have to see the committeeman
in the brake department This, as noted, is denied by Baccus.
t I)ean was also a full-time employee of the Respondent
321
D)-E(ISIONS OF NATIONAL LABOR RELATIONS BOARD
Dean, Baccus, Benedict, and McFate. Baccus testified that
at the start of the meeting Sparkes requested that she tell
her story, which she did, repeating her April 22 conversa-
tion with Mitchell, as described above, where he informed
her that she was being laid off because of her attitude in
general and with regard to running the jacks. She told
Sparkes that she could not understand why she was being
laid off as she had always run the jacks and had never
refused to accept or perform any assignment. Baccus also
described to Sparkes her conversation later in the evening
on April 22 with both McFate and Mitchell, where both
men again had accused her of having a bad attitude. She
related that Mitchell had repeated his charges concerning
her attitude in general and with respect to the jacks and his
observation that she had tried to find a committeeman.
In her summary to Sparkes. Baccus also related the de-
tails of the April 20 meeting of the press department em-
ployees, when Mitchell told the employees, including those
in grade 7, that they thereafter would be expected to do
their own trucking, and of her question, shortly after the
meeting, to Benedict as to whether it was in the contract
that grade 7 employees have to do their own trucking. She
referred to Benedict's reply that he did not like anyone
questioning his supervisors, particularly probationary em-
ployees.
Baccus' account was followed by a discussion between
Sparkes and Dean as to whether grade 7 employees actually
were required to perform trucking.
The meeting ended when Sparkes stated that he would
talk to his supervisors and get back to Baccus within a
week.' 2 About 4 days later, Jack Downey, the Respondent's
personnel manager, called Baccus and informed her that
the Respondent had determined to adhere to its original
decision to terminate her.
Machine department supervisor McFate testified that un-
der the Respondent's procedures new employees are given
three evaluations during their probationary period by their
immediate supervisors, which are recorded on a special
form called an Employee Progress Report. On this report.
supervisors are expected to rate employees as "excep-
tional," "good," "fair," or "poor" in such categories as abil-
ity to understand and follow instructions, productivity,
quality of work, safety habits and attitudes, dependability,
cooperation, attendance and punctuality, and general atti-
tude. The Employee Progress Report on Baccus shows that
she was rated twice, on April 4 and 18, by Mitchell. In the
first evaluation, Baccus was rated "good" in all categories.
In the second rating, Baccus was marked "good" in produc-
tivity and quality of work, "exceptional" in satety habits
and attitude, dependability, attendance and punctuality,
and "fair" in ability to understand and follow instructions,
cooperation, and general attitude. No third evxaluation was
given.
Baccus testified that Mitchell interviewed her only once,
on about April I, in connection with her evaluation, at
which time he had expressed general satisfaction with her
performance. Baccus also testified that before being notified
of her termination, she had never been told that she had a
bad attitude in any respect. It also is uncontroverted that
12 Baccus' description of the May 5 meeting is uncontradicted
Baccus had never refused to accept or perform any assign-
ment.
Baccus and fellow employee Mary Jeanne Neiswonger
explained their reluctance to operate the jacks, particularly
those which were electronically powered, by referring to the
difficulties which they and other female employees had ex-
perienced in learning to maneuver them. Soon after Baccus
had begun her employment in the press department, she
had had a minor accident with one. While the manual jacks
required less skill to operate, the) also required more
strength on the part of the employee and, therefore, were
impractical for the women. However. after Mitchell's direc-
tive to the employees on April 20, both Baccus and Neis-
wonger, w ho worked near each other, took turns in trucking
loads and did their own trucking in connection with scrap
dumping.'
Mitchell, contrary to Baccus, testified that he also had
interviewed her on April 18, in connection with her evalu-
ation, completing the form while talking to her. At that
time he had called Baccus' attention to her reluctance to
operate the jacks. She told him that she would try but was
afraid.
Mitchell explained that he had marked Baccus "fair" on
ability to understand and follow instructions with reference
to her trucking assignment because Clark, her leadman, had
been required to show her more than once how to perform
given production procedures." Mitchell also contended that
Baccus did not clean the area around her machine with the
desired frequency. He retreated from his original testimony
that Baccus had a practice of going over his head to ques-
tion assignments and conceded that the only two times that
she had spoken to other supervisors at work were when she
had questioned Benedict with respect to the union contract
and when she had complained to a supervisor of' another
department about an employee under his jurisdiction who
had been bothering her. It was this last incident upon which
Baccus' rating of "fair" in cooperativeness was based, as it
was Mitchell's view that as Baccus' supervisor. she should
have come to him first with this problem.
Mitchell testified that he had spoken to McFate on two
occasions as to whether Baccus should be retained after her
probationary period. 'The first such conversation occurred
about I week before her discharge, when Mitchell remarked
upon Baccus' reluctance to operate the jacks and declared
his intention to watch her with the hope that she would
improve. He told McFate that she should be terminated
only as a last resort.
'TIhe second discussion took place on April 22, the day of
Baccus' discharge, just before the start of her shift. At that
time, Baccus' probationary period was coming to an end
and it was necessary to decide whether she should be re-
tained. Mitchell again reported that Baccus was still reluc-
11 Baccus testified that she had questioned Benedict on April 20. as de-
scribed above, for clarification. as she recalled having overheard an em-
ployee discussion as to whether grade 7 employees were it do their own
trucking in 1974. when she first worked for the Respondent. Although in
1974 Baccus had been in grade 8, she had worked in a different department
where trucking w'as not required.
14 Mitchell's assessment of' Baccus' work is contradicted by ('lark, who
testified that she was a good production worker. had good work habits. did
not require extra instruction, and had been cooperative with him. ('lark, as
noted, also testified that prior to April 20 he had been doing most of' the
trucking not only for Baccus, but for the other female emplosees as well
322
CORRY JAMESTOWN CORPORATION
tant to do her own trucking and did not clean her work area
with sufficient frequency, and noted that it was McFate's
decision as to what to do about her. In response to
McFate's request for a recommendation. Mitchell replied
that Baccus' attitude was unsuitable and that he really did
not want her working for the Respondent. McFate testified
that he authorized Baccus' discharge essentially upon
Mitchell's recommendation, as the latter had informed him
that Baccus was continually questioning assignments, and
on the report of Benedict, who had described to him the
incident of April 20, when Baccus had questioned him on
the contract, as described above. McFate related that Bene-
dict's report was a principal factor in the decision to termi-
nate Baccus and that there had been no intervening events
between the time that Baccus had so questioned Benedict
and the time of her termination. McFate related that he did
not review Baccus' Employee Progress Reports before de-
ciding to terminate her but had only a general idea of what
they contained. When confronted with Baccus' rating on
these progress reports, McFate conceded that her second
and last evaluation did not warrant discharge. tie also ac-
knowledged that the category of general attitude was the
summation of the other categories considered and. when
viewed in consideration of the "exceptional" and "good"
ratings received in certain other classifications, that Baccus'
rating of "fair" in general attitude is inconsistent with the
general tenor of the report. McFate noted that the Respon-
dent's rules and regulations, applicable to all employees,
provide for a system of progressive discipline proceeding
from a written warning on the first offense to discharge on
the fourth offense and that as Baccus had never received a
written warning, this procedure had not been followed in
her case. '
Mitchell and McFate appeared to be less than forthright,
were inconsistent with their testimony, and are not credited.
Mitchell was contradicted by the testimony of group leader
('lark, a disinterested witness, in areas relating to the qual-
ity of Baccus' work. her job habits, and Clark's assertion
that he had not found it necessary to give Baccus extra
instruction. Mitchell also testified incredibly that he had
not observed the 8 to 10 trucking trips that Clark had been
making each shift for the various female employees, includ-
ing Baccus, before April 20. As noted, Mitchell tended to
exaggerate the extent to which Baccus questioned assign-
ments and spoke to other supervisors, from which he was
obliged to retreat.
McFate. with no knowledge of Baccus' productivity ex-
cept for the "good" ratings that she had received on her
Employee Progress Reports. completed an Employee Ter-
mination Report concerning her discharge on April 30, 8
days after the event, in which he downgraded her produc-
tivity to "fair." This documentary distortion, together with
other instances of evasiveness and inconsistence in
McFate's testimony. also adversely affected his credibility.
Baccus and Clark and other witnesses called by the General
Counsel are therefore credited.
m Although the Respondent in its brief argues that progressive discipline
wals not applicable to probationars employees, McFate testified that the
5work rules. hich set iortlh this ssstem, were applicable to all employees.
B. Dis.cussion and (onchiding Findings
On the foregoing facts, it is found that major reasons for
Baccus' discharge by the Respondent were her complaint
about the need to do trucking, as reflected in her question-
ing of Benedict as to whether the Respondent was following
the terms of the collective-bargaining agreement in assign-
ing trucking duties to grade 7 employees, and Mitchell's
belief that Baccus was looking for a Union committeeman
to protest his instruction that grade 7 employees do their
own trucking. The General Counsel contends that Baccus'
complaint was an attempt to present her understanding of
the collective-bargaining agreement and that she was dis-
charged for this reason and the Respondent's fear that if
she were permitted to complete the probationary period she
would become an active committemanl6 and grievant.
The Respondent. in turn, contends that Baccus had been
terminated for questioning management directives and as-
signments and that, as a probationary employee. she had
not been discriminatorily treated. as she was not entitled to
the protections afforded permanent employees under the
collective-bargaining agreement.
It is well established that an employee is engaged in pro-
tected concerted activity when he complains about or ques-
tions possible violations by his employer of the terms of a
collective- hrgaining contract and that it is a violation of
the Act for an employer to penalize an employee for mak-
ing such complaints or for asserting rights under the con-
tract." Such activity, the Board has held. is merely the im-
plementation and enforcement of the terms of the
collective-bargaining agreement and is therefore "but an
extension of the concerted activity giving rise to that agree-
ment" which Section 7 of the Act guarantees.' The Board
has held that the protected right of an employee to press
such a complaint does not depend on the merits of his
grievance, and the fact that he may have acted alone is not
dispositive of the question of whether the conduct is pro-
tected activity within the meaning of Section 7.'9 Com-
plaints within the framework of the Union contract affect
all employees. and therefore the pressing of such a com-
plaint is concerted protected activity. The Board has long
held that the merits of the employee's complaint or whether
the employee understood the contract are irrelevant to the
issue of whether the employee is engaged in protected con-
certed activity.2 0 Moreover, it is well established that this
protection extends even to probationary employees who as-
sert rights under the collective-bargaining agreement." l It is
16 No merit is found to the General Counsel's contention that the Respon-
dent terminated Baccus because of her interest in becoming a Union com-
mitteeman. The General Counsel adduced evidence that on about Apnl 13,
while on break outside the foireman's office, Baccus had asked other employ-
ees who were with her for the name of the committeeman of their depart-
menl. She was told that the post was then vacant. had been encouraged by
employees to put in for the position, but had declined. However, there is no
evidence that the foreman was in his office at the time or that he had other-
wise overheard this conservation.
l? Potlatch Corporation, 236 NLRB 707 (1978): ARO, Inc, 227 NLRB 243
(1976;. Merlyn Bunner and Clarence Bunney, partners, d'b/a Bunneo Bros
Construction Company, 139 NL.RB 1516 (1962}. Interboro Contractors, Inc.,
157 NLRB 1295 (1966), enfd. 388 F.2d 495 (C.A. 2. 1967L
18 Bunney Bros., supra at 1519
9 Interbori ( olntruacors, Inc, rupra at 1298, n. 7.
A.4RO Inc., supra at 243.
0 PoAtluach C(orpiration, rupria, .4RO, Inc., supra
323
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary for employees to band together and overtly mani-
fest by physical action their discontent before it will be
found that their activity is concerted. Even individual pro-
test which redounds to the group's benefit is protected con-
certed activity.2
Individual complaints of the sort undertaken by Baccus
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.
Therefore, noting that Baccus' prior work record had
been good, that her ratings on her progress reports would
not have justified her termination, that such reports were
not even reviewed before the decision was made to termi-
nate her, that her leadman considered her to be a good
employee, that she had not refused to perform any assigned
task, and that her reluctance to operate the jacks was
shared by other female employees, I find that Baccus' ques-
tion to Benedict on April 20 relating to the contract was a
critical element in her discharge, as was Mitchell's belief'
that she was seeking a Union committeeman to help protest
his directive concerning trucking.2 It therefore is concluded
that the Respondent violated Section 8(a)(l) and (3) of the
Act by terminating Baccus' employment.2 4
IV. THE EFFECT OF TIHE UNFAIR LABOR PRA([IICES UPON
COMMER(CE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section 1, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow thereof.
v. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I will recommend that it cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that the Respondent terminated the em-
ployment of Carol L. Baccus and thereafter failed and re-
fused to reemploy her because she engaged in concerted
activities protected by the Act, I will recommend that the
22Hugh H. Wilson Corporation, 171 NLRB 1040, 1046 (1968), enfd. 414
F.2d 1345 (C.A. 3, 1969).
23 Although Baccus' denial that she was looking for a committeeman on
April 20 to protest Mitchell's instruction is credited, Mitchell's reliance upon
a mistaken belief that she was engaged in this protected activity and his
reference thereto as a basis for the action taken against Baccus remain un-
lawful.
24 N.LR.B. v. Northern Metal Conmpany), 440 F.2d 881 (C.A. 3, 1971), de-
nying enforcement of 175 NLRB 896 (1969), and Snap-On Tools Corporation,
207 NLRB 238 (1973), cited by the Respondent, do not sustain its position.
In Northern Metal Company, the Board, in fact, found that the relevant
violation had occurred. While this conclusion was not later enforced by the
court, 1, of course, am bound by the Board's determination. Snap-On Tools
Corporation. supra, is inapposite as it there was found that the alleged dis-
criminatee, also a probationary employee, had been terminated for making a
personal complaint affecting only his own interest, based upon his own ob-
servation of shop custom. The Board noted that in making this complaint,
the employee had "made no reference to any purported right deriving from
the collective-bargaining agreement."
Respondent be ordered to offer her immediate reinstate-
ment to her former position or, if it no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and make her whole
for an)' loss of earnings she may have suffered by reason of
the discrimination against her by payment to her of a sum
of money equal to the amount she normally would have
earned from the date of her termination to the date of rein-
statement, less net earnings during said period. Backpay,
with interest, shall be computed in the manner described in
F. W. Woolworth Companv,2 5 and Florida Steel Corpora-
lion.26 On the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CoNC lUSIONS ()F LAW
1. The Respondent, Corry Jamestown Corporation, is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Lodge No. 1097, International Association of Machin-
ists and Aerospace Workers, AFL CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By discharging and refusing to reinstate Carol L. Bac-
cus because of her protected union activities in questioning
a supervisor concerning the application and enforcement of
its contract with the Union, or for seeking the services of a
Union committeeman, the Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a)(3)
and ( 1) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER2 7
The Respondent, Corry Jamestown Corporation, Corry,
Pennsylvania, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Terminating the employment of and refusing to rein-
state employees for engaging in protected union activities in
questioning supervisors with respect to the application and
enforcement of the collective-bargaining agreement with
the Union or for seeking the services of their Union repre-
sentative.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
25 90 NLRB 289 (1950).
26 231 NLRB 651 (1977). See, generally. Isis Plumbing & Heating Co.. 138
NLRB 716 (1962).
:2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
324
CORRY JAMESTOWN CORPORATION
(a) Offer Carol L. Baccus immediate and full reinstate-
ment to her former position 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, with interest, for any earnings she may have lost.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports. and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Post at its facilities in Corry, Pennsylvania, copies of
the attached notice marked "Appendix."2 8 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 6, after being duly signed by the Respondent's autho-
rized representative, shall be posted by the Respondent im-
mediately upon receipt thereof and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respon-
dent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
's In the event that 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 LUnited States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties presented evidence, it
has been found that we have violated the National Labor
Relations Act, as amended. in certain respects. To correct
and remedy these violations, we have been directed to take
certain actions and to post this notice.
WE WILL NOT discharge or refuse to reinstate you for
engaging in protected union activities, such as ques-
tioning supervisors about the application and enforce-
ment of our collective-bargaining agreement with
Lodge No. 1097, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, or for seeking
the services of your Union representatives.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of rights under
Section 7 of the Act.
WE WVILL offer Carol L. Baccus 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 and other rights and privi-
leges. and we will make her whole, with interest, for
any earnings lost as a result of her discharge.
CORRY JAMESTOW)N CORPORAtION
325