E. A. Nord Co.

National Labor Relations Board - Board Decisions

Jul 3, 1980

250 N.L.R.B. 403 (N.L.R.B. 1980)

E A. NORD CO)MP'ANY
E. A. Nord Company and Ricky Daniels. Case 19-
CA-11493
July 3, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENEL I.O AND TRUE.S)AILE
On April 18, 1980, Administrative Law Judge
Burton Litvack issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in opposition to Respondent's ex-
ceptions.
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
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, E. A. Nord
Company, Everett, Washington, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
I The Administrative Law Judge in his Decision inadvertently quoted
Respondent's vice president of operations. Wallenburg, as having admon-
ished employee Daniels for "not punching in" instead of for "punching
in." This error, however. does not affect the Administrative Law Judge's
results.
2 In his recommended remedy and Order. the Administrative Law
Judge provided for the payment of interest on any backpay which Re-
spondent might owe Daniels in order to make him whole for any losses
he may have suffered as a result of the discrimination it practiced against
him. In his recommended notice. however. the Administrative Law
Judge failed to provide for the payment of such interest Accordingly,
we shall include the appropriate language In our new notice.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, refuse to reinstate,
or otherwise discriminate against employees
with regard to their hire, tenure, or any other
250 NLRB No. 68
term or condition of employment because they
engage in union or other protected concerted
activities.
WE WI l. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their right to engage in
or refrain from engaging in any or all of the
activities specificied in Section 7 of the Act.
WIE WIl. offer Rick Daniels immediate and
full reinstatement to his former job or, if that
job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority
or other rights and privileges and WE Wll.l
make him whole for any loss of earnings he
may have suffered as a result of our discrimi-
nation against him, with interest.
DECISION
STAITEIENT 01 THE CASE
BURTON LirvAcK, Administrative Law Judge: This
matter was heard by me in Seattle, Washington, on No-
vember 13, 1979, pursuant to a complaint, issued by the
Regional Director for Region 19 of the National Labor
Relations Board on July 23, 1979, pursuant to a charge
filed by Ricky Daniels on June 18, 1979. The complaint
alleges, in substance, that E. A. Nord Company, herein
called Respondent, violated Section 8(a)(1) and (3) of the
National Labor Relations Act, herein called the Act, by
discharging Daniels because he threatened to file a con-
tractual grievance against Respondent. Respondent filed
an answer, denying the commission of any unfair labor
practices. All parties were afforded full opportunity to
appear, to introduce evidence, and to examine and cross-
examine witnesses. Briefs were filed by counsel for the
General Counsel and by Respondent and each has been
carefully considered. I
Upon the entire record in the case, from my observa-
tion of the demeanor of the witnesses, and from careful
consideration of the post-hearing briefs, I make the fol-
lowing:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Washington State corporation with an
office and place of business in Everett, Washington,
L In his post-hearing brief, counsel for the General Counsel contended
that Respondent's conduct herein Aas only violative of Sec 8(a)(l) of the
Act. Thereafter, counsel for Respondent filed a motion to strike the brief.
arguing that no independent siolation of Sec 8(a){ t of the Act was al-
leged in the complaint and that by arguing that only a 8(a)( ) s iolatlon of
the Act existed. counsel for the General Counsel was, in cffect. seeking
to amend the complaint In response, counsel for the (ienleral Counsel
argued that the omission from his brief of a conlentionr that Respondenl's
actions were also iolalise of Sec 8(a)(3) of the Act was inadvertent and
not meant as an allttempt to amend the complait Without regard to the
merits of counsel fr Respondent's arguments. inasmuch as it appears that
the aforementioned omission hby counrsel for the (rrneral Counsel s as in-
advertent . lnd not meant as an attempt to amend the complanlt. I shall
den) Respondent',i mrotion
4(3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where it is engaged in the business of manufacturing
doors, spindles, and columns. During the past 12 months,
which period is representative, Respondent, in the course
and conduct of its business operations, sold and shipped
goods and services valued in excess of $50,000 directly
to customers located outside the State of Washington.
The complaint alleges, Respondent admits, and I find
that at all times material herein, Respondent has been an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that Production Workers Union, Local 1054, affiliated
with the Puget Sound District Council of the Lumber
and Sawmill Workers and the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, herein
called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. ISSUES
1. Whether on or about May 22, 1979,2 Daniels en-
gaged in protected concerted activities by threatening to
file a contractual grievance against Respondent.
2. Whether on or about May 22, 1979, Respondent
violated Section 8(a)(1) and (3) of the Act by terminating
Daniels because he threatened to file a contractual griev-
ance.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent maintains a plant facility in Everett,
Washington, where it is essentially engaged in the manu-
facture of doors. The record discloses that Respondent
employs approximately 600 employees and has divided
its operations among five general departments. The
record further discloses that Richard Wallenberg is Re-
spondent's vice president of operations and that he is in
overall charge of labor relations matters. Beneath Wal-
lenberg, Respondent's supervisorial hierarchy consists of
9 managers and 12 foremen: Chet Brown is the personnel
manager; Jack Jergensen is the manager of allied prod-
ucts; Herman Borsema is the manager of the special pro-
jects crew, which is responsible for maintenance of the
plant building and grounds, and which consists of I lead-
man and 5 to 11 crew members; and Terry Olson is Re-
spondent's third shift foreman.3 The record also discloses
that Respondent has had collective-bargaining agree-
ments with the Union and a predecessor for approxi-
mately 40 years, covering Respondent's production and
maintenance workers, and that the most recent agree-
ment is effective until June 30, 1980.
Rick Daniels was employed by Respondent from De-
cember 21, 1971, through May 22, 1979, and during this
period, he worked at approximately seven different jobs.
On or about December 8, 1978, Daniels was observed by
a Unless otherwise stated. all events herein occurred in 1979.
:' In its answer herein. Respondent admitted that Wallenberg. Borsema.
Jergensen. and Brown were supervisors within the meaning of Sec. 2(11)
of the Act
Respondent when he apparently attempted to enter into
an unauthorized area without permission. As a result of
said incident, Daniels received a written warning
notice,4 was suspended from work until January 7, and
was returned to Respondent's third shift with a reduction
in wages but with no loss in seniority, and lost holiday
pay for the period December 31, 1978, until January 1.
According to Richard Wallenberg, Daniels accepted the
discipline for the attempted break-in and said that he was
going to do a better job.
From January until early May, Daniels worked in Re-
spondent's louver department as a louver bench stocker
under the supervision of Jack Jergensen. In early May, a
position became available on the special projects crew.
Pursuant to the established job bidding procedure,s and
in view of his plant seniority, Daniels bid for and was
given the job. He began work in the special projects de-
partment on or about May 10 and worked for approxi-
mately 12 days. During this period, Daniels worked by
himself for 5 days, cleaning up sawdust from around ma-
chines, and for the remainder of the time, he helped in
the installing of noise reduction systems over lathes and
the painting of the frames from which the noise reduc-
tion units were hung. On May 21, at approximately 4:45
p.m., Daniels spoke to Borsema outside the plant lunch-
room. According to Daniels, Borsema told Daniels that
he had been bumped back to the louver department.
Daniels replied that he was doing a good job. Borsema
said, "That's what you thought. I had a meeting with
Mr. Wilson, and we're not satisfied with your job per-
formance." Borsema continued, stating that the amount
of work was not the problem but rather "he was not sat-
isfied with [Daniels'] performance." 6 A few minutes
later, while he was in the special projects room putting
away his work tools, Daniels spoke to Wes Wilson, the
leadman on the special projects crew. Daniels informed
Wilson about his conversation with Borsema and asked
Wilson if he had a conversation with Borsema about
Daniels' job performance. Wilson replied that he had no
such meeting with Borsema and that "he did not see
how an opinion could be formed since I had only
cleaned up for a week and helped him for 2 days."
On May 22, according to Daniels, he telephoned the
plant in the morning and informed Respondent that he
would not report for work that day. However, upset by
Wallenberg testified, without contradiction, that under normal cir-
cumstances after two written warnings, Respondent is permitted to take
disciplinary action against an employee Both Wallenberg and former
Union President Mickles agreed that Respondent has, in the past, termi-
nated employees after two written warning notices
. Wallenberg testified, without contradiction, that Respondent main-
tains a bidding procedure for job openings under which employees may
bid for any job opening, with the position going to the employee who
has the greatest seniority. Wallenberg further testified that the individual,
who receives the job, is given a 15-day qualifying period during which
his supervisors determine if he can perform the work During this 15-day
period or at its conclusion if his supervisors determine that the individual
is unqualified, he may be removed from that position and put back to his
former job at the appropriate wage scale
" According to Borsema, just before quitting time. he infiormed Daniels
that "he would no longer he required on our crew and to go back to his
former job the next morning . [Daniels] wanted an explanation for
my statements. and I told him that I just didn't think he worked out on
my crew . .
404
[ A NORI) C()MI'ANY
his conversation with Wilson the previous afternoon,
Daniels did go to the plant, clocked in as usual, and de-
cided to speak to Borsema again. Locating the latter near
the lunchroom, Daniels informed Borsema that he spoke
to Wilson and that Wilson denied speaking to Borsema
regarding Daniels' job performance. Next, Daniels ques-
tioned how he could be bumped from the special pro-
jects crew. Borsema responded that he was not satisfied
with Daniels' work and that Daniels should return to the
louver department.' Rather than follow Borsema's
instructions, Daniels left the plant, and returned home.
He then telephoned Chet Brown and asked for an ap-
pointment that afternoon regarding "some personal prob-
lems I was having." An appointment was arranged for 1
p.m.
Daniels arrived back at Respondent's plant at the
scheduled time, waited 45 minutes, and was advised that
besides Chet Brown, other management representa-
tives-Wallenberg, Jergensen, and Borsema-would be
present at the meeting. Also, just prior to the start of the
meeting, Daniels learned that Richard Mickles, the presi-
dent of the Union and an acting shop steward,8 had been
invited to the meeting. Thereupon, Daniels expressed his
displeasure at the number of people at the meeting,
stated that he thought he had an appointment only with
Chet Brown, and asked Mickles why he was at the meet-
ing. Mickles responded that he was present as an observ-
er in his capacity as the acting shop steward.
Daniels testified that Wallenberg was the spokesman
for management and that he began the meeting, stating,
"Rick, you punched in, did not tell your supervisor you
were leaving, did not report back to the louver depart-
ment, and you did not have a bona fide reason for calling
in. These are reasons for being fired. Do you have any-
thing to say?" According to Daniels, he responded that
he punched in "out of force of habit," that he had al-
ready called in that he would not report for work that
day, that he had spoken to Borsema and nothing was re-
solved, and that he did not feel he could report to the
louver department and do an adequate job in his present
state of mind. Daniels then spent the next several minutes
explaining to the management representatives that Re-
spondent was discriminating against him by bumping him
back to the louver department and relating to them the
discussions he had with Borsema and Wilson the previ-
ous day. At one point, Wallenberg interrupted and told
Daniels that he should have reported to the louver de-
partment and that such should have been his only con-
cern. After approximately 50 to 60 minutes, according to
Daniels, the management representatives caucused in an-
other room, while Mickles and Daniels remained in the
7 Borsema testified that he spoke Io Daniels at approximately 8 o.chock
the next morning and that Daniels wanted to discuss the matter of his
demotion According to Bor'ema. he informed Daniels that he did not
think there was any point of discussing the matter further and that his
former supervisor had been informed that he would be returning to the
louver department
R The record establishes that Mickles was president of the Union until
October at which point he was offered a leadman position by Respond-
en. According to Mickles, he resigned his positionll with the Unilnl in
order lo avoid any potential coflicts of interest. The recoird further es-
tablishes Ihat Respondent's leadmen are included withil the contraciual
bargaining unit
meeting room. While they were alone, Daniels ques-
tioned Mickles about the contractual grievance proce-
dure.
Daniels testified that after approximately 15 to 20 min-
utes the management officials returned to the meeting
room. According to Daniels. Wallenberg said that they
had decided to give him a written warning notice for not
punching in, for not reporting to his supervisor that he
was leaving the plant, and for not having a bona fide
reason for being absent. Wallenberg then said that Jer-
gensen had something to say to Daniels. Jergensen then
spoke, saying that he was pleased with Daniels' work in
the louver department, that Daniels did a good job there,
and that he would be pleased to have Daniels back in
that department. Thereupon, according to Daniels, while
Wallenberg was in the midst of drafting the written
warning for him, Daniels announced that he would
accept the written warning and return to work in the
louver department and "I asked would the company
hold it against me if I were to file a grievance about this
warning. Mr. Wallenberg raised his voice and said,
"What, do you think the company is wrong in giving
you this warning?" I said, No. He said, "This calls for
further discussion," and left the room with "manage-
ment." Approximately 15 minutes later, the management
representatives returned. According to Daniels, Wallen-
berg said, "I'm sorry, Rick. We've decided to terminate
you for not punching in, not reporting to your supervi-
sor that you were leaving, and not having a bona fide
reason for calling in." Mickles intervened and said that
Daniels only wanted to know what would happen if he
would file a grievance about the warning. Wallenberg re-
plied, "Richard, don't tell me what he said. I have wit-
nesses who will state he said the company was wrong."
At that point, Wallenberg handed Daniels a termination
notice, they shook hands, and Daniels left the room.
Richard Mickles essentially corroborated the testimo-
ny of Daniels. More specifically, regarding the period
immediately following the initial caucus, Mickles testified
that Wallenberg asked Jergensen how Daniels was as a
worker, and Jergensen responded that when Daniels was
in his department, he was a fine worker but towards the
end, "he was slowing down a little but he was doing a
good job." Then, Wallenberg said that rather than termi-
nate Daniels, they had decided to give him a written
warning, and Daniels responded that he would accept
the written warning. Thereupon, as Wallenberg filled out
a warning slip, referring to Respondent, Daniels said,
"that I suppose if I file this grievance, you'd be against
me," and everybody stopped what they were doing, and
Jack Jergensen said, "Well, why did you say that?" At
that point, according to Mickles, the management repre-
sentatives left the room and caucused. Approximately 10
minutes later they returned, and Wallenberg said, "We
have decided that termination is necessary." Then,
Mickles said to Wallenberg, "I think that's rather harsh.
All the man did was ask a question." He said, "Richard,
don't argue with me." So then I asked him again, I said,
"Dick, that's awful harsh punishment," and he said,
"Richard, don't argue with me, again."
405
I)ECISIONS ()F NATIO()NAL LABOR RELATIONS BOARD
Wallenberg, Jergensen., and Borsema testified on behalf
of Respondent regarding this May 22 meeting, and all
corroborated the testimony of Daniels and Mickles that
the meeting was divided into three sections by two Re-
spondent caucuses. Wallenberg testified that during the
initial portion of the meeting, the parties summarized
Daniels' actions of that day. At that point, according to
Wallenberg, he called a caucus and Respondent's repre-
sentatives discussed what should be done about the situa-
tion. During that caucus, Wallenberg concluded that
Daniels should only be given a written warning for the
events of that day inasmuch as "he would have to go
back to the job that he had in the louver department."
According to Wallenberg, after management returned
from the caucus, he told Daniels that his discipline
would consist solely of a written warning. Daniels ac-
cepted the warning, and Wallenberg began to draft the
warning notice. "[A]II of the sudden, Mr. Daniels said,
'It doesn't do any good to file a grievance around here
anyway because the company just gets bigger and
stronger, and the union doesn't do anything for you
anyway,' and at that point, I stopped writing the written
warning, and I couldn't believe what I heard. With an
attitude like that and some of the other things, I just
couldn't believe it, and I called another caucus." During
this second caucus, Wallenberg decided to terminate
Daniels. Thereupon, the management representatives re-
turned to the meeting, and Wallenberg announced his de-
cision. At that point, according to Wallenberg, the meet-
ing ended on a friendly basis with everybody shaking
hands. The testimonies of Jergensen and Borsema essen-
tially corroborated that of Wallenberg.
Wallenberg testified in great detail as to why he
changed his mind and decided to terminate Daniels and
as to what factors influenced his decision. Called as a
witness by counsel for the General Counsel, Wallenberg
initially testified that his change of mind resulted from
Daniel's attitude, "He didn't want to work anymore. It
was obvious he didn't want to work anymore." During
cross-examination, utilizing a leading question, counsel
for Respondent inquired as to whether Wallenberg con-
sidered Daniels' entire work history in deciding to termi-
nate the latter. Wallenberg answered, "Yes." 9 Later
during cross-examination, Wallenberg reverted to his ini-
tial explanation for his change of mind: "It was his atti-
tude. You go back and review the man. His attitude after
being apprehended in the attempted break-in was alto-
gether different. He told me that he felt terrible about
what had happened and that he was going to try and
correct a lot of things in his life ... ."
Recalled as a witness by counsel for Respondent, Wal-
lenberg once again offered an explanation for his change
of mind:
9 Daniels admitted that during the 6-month period immediately preced-
ing his discharge, he received two written warnings-in December 1978
and on May 22-and one verbal warning regarding poor attendance. He
could recall no other warnings but also admitted. "It is possible" Wallen-
berg testified that during this period. Daniels received two written warn-
rigs and several oral warnings Wallenberg admitted that prior to the
May 22 meeting. and prior to his initial deci sion during thal nmceting Io
give Daniels only a writte uarning notice, he was aware of Daniels'
work recoild
Because of his statement, and I'll repeat the state-
ment. What he said, "It doesn't do any good to file
a grievance around here anyway because the com-
pany just gets bigger and stronger, and the union
doesn't do anything for you." That's exactly what
the man said, and why would he talk that way if he
is interested in working for the Nord Company
after we had just told him he could have his job
back and he had two written warnings. He had to
know he was subject to disciplinary action. Why
would he make a statement-contrary to a worker
who really wanted to work in a factory, why
would he make a statement like that? I don't
know.... [H]e said he would accept the written
warning, and he said he would go back to work.
Then all of a sudden, he pops up with a statement
like that which is absolutely contrary to what he
just said. I can't imagine a man doing that.
Finally, the following colloquy occurred between
Wallenberg and the undersigned:
Judge Litvack: Absent that one statement from
Mr. Daniels, you were not going to terminate him?
The Witness: That's right.
B. Analysis
The core issues of this case evolve from the May 22
meeting between Daniels and Respondent's management
officials-what was said and the meaning of what was
said. In resolving credibility regarding that meeting, it is
of utmost significance to me that Richard Mickles acted,
in effect, as a disinterested observer at that meeting. I
found his demeanor while testifying to be that of a
candid and truthful witness, and I note that prior to the
hearing, he resigned his position as president of the
Union to assume a leadman position with Respondent.
Thus, at the hearing, Mickles was in the highly vulner-
able position of being a current employee testifying ad-
versely to his employer, and as such, his credibility is en-
titled to added support. St. Anne's Home, Division of
DePaul Community Health Center, 221 NLRB 839, 844
(1975); Form Tubes, Alabama, 211 NLRB 509, 511
(1974). Accordingly, I credit Mickles' testimony regard-
ing the May 22 meeting. Furthermore, inasmuch as Dan-
iels' testimony essentially corroborates that of Mickles, I
also credit Daniels' version of this meeting over that of
Wallenberg, Jergensen, and Borsema. Accordingly, I find
that after the first management caucus and after he
agreed to accept a written warning as punishment for the
events of that morning, Daniels questioned the manage-
ment representatives whether Respondent would hold it
against him if he filed a grievance regarding the written
warning and that thereupon either Wallenberg or Jergen-
sen acted offended and questioned Daniels' motives. I
further believe that after the second management caucus
and after Wallenberg announced that he had decided to
terminate Daniels, Mickles told Wallenberg that he be-
lieved the punishment was rather harsh, and Wallenberg
responded that Mickles should not argue with him. Fi-
nally, the record is clear that, by Wallenberg's own ad-
40h
F. A NORI () COMPANY
rission, I)allicls' statelentit wvas the precipitating cause
for his discharge and that he would not have been lermni-
nated hut for said statement.
Counsel for the General Counsel characterizes Dan-
iels' statement as a "threat" to file a grievance pursuant
to the existing collective-bargaining agreement. Counsel
for the General Counsel further argues that as such,
Daniels' statement was privileged by Section 7 of the
Act, and inasmuch as he was terminated for having en-
gaged in such activity, Daniels' discharge by Respondent
violated Section 8(a)(1) and (3) of the Act. In contrast,
notwithstanding the aforementioned credibility resolu-
tions, Respondent argues that Daniels' statement does
not constitute protected concerted activity but rather
was merely a "self-serving gripe." Moreover, Respond-
ent asserts that "Daniels in no way demonstrated that his
commentary was for the purpose of inducing or prepar-
ing for group action to correct a grievance or a com-
plaint." Alternatively, Respondent argues that Daniels'
conduct must be measured against Respondent's attitude
toward unionism in general and the amicable relationship
between Respondent and the Union for, at least, 10
years. Finally, Respondent further asserts that no viola-
tion can be found herein inasmuch as "any ambiguous
suggestion that Daniels might file a grievance was an in-
significant factor in the discharge."
Initially, the Board has long held that the "filing of
grievances is among the employee activities protected by
Section 7 of the Act. When an employer discharges an
employee because of his utilization of, or attempted utili-
zation of, his right to file a grievance, that employer has
violated Section 8(a)(3) and (1) of the Act." Price Broth-
ers Company, 175 NLRB 277, 278 (1969); Farmers Union
Cooperative Marketing Ass'n., 145 NLRB 1, 3 (1963). Uti-
lizing this rationale, the Board has long held that the dis-
charge of an employee for having threatened the invoca-
tion of a contractual grievance procedure is also viola-
tive of Section 8(a)(1) and (3) of the Act. Keokuk Gas
Service Co., 233 NLRB 496, 505 (1977); Price Brothers
Company, supra. Without characterizing Daniels' com-
ment as a threat to invoke the contractual grievance pro-
cedure or as a mere gripe, I believe that, at the very
least, Daniels manifested to Respondent his intention to
file a grievance and that such an assertion-as with a
threat to engage in this activity-must be likewise privi-
leged by Section 7 of the Act. Keokuk Gas Service Co.,
supra at 505.
Moreover, the record supports the conclusion .hat
Wallenberg also perceived Daniels' comment as manifest-
ing his intent to file a grievance and that Wallenberg's
abrupt decision to change the type of discipline which
was to be given to Daniels was directly influenced by
the latter's statement. Thus, as justification for his deci-
sion to terminate Daniels, Wallenberg testified that Dan-
iels' attitude had changed from that of acceptance of Re-
spondent's discipline in December 1978 to rejection of
Respondent's discipline in May 1979. Clearly, what Wal-
lenberg characterized as a change in Daniels' attitude
was the statement of his intent to file a grievance. As
Wallenberg admitted, "[H]e said he would accept the
written warning, and he said he would go back to work.
Then all the sudden, he pops up with a statement like
that \, hich is absolutely contrary to wshat he just said. I
can't imagine a man doing that," Thus. the record sup-
ports a further finding that Daniels would have been
given milder punishment but for his statement of his in-
tention to file a grievance and that w hen Daniels ex-
pressed this intent, Wallenberg, on behalf of Respondent,
immediately withdrew the milder written warning,
changing it to Daniels' termination. Such conduct-as
firing individuals for the filing of grievances-clearly
was violative of Section 8(a)( I) and (3) of the Act.
Keokuk Gas Service Co. v. .L.R.B., 580 F.2d 328, 335
(8th Cir. 1978).
Respondent argues that Daniels was not engaged in
concerted activities inasmuch as there is no evidence that
his commentary was for the purpose of inducing or pre-
paring for group action to correct a grievance or a com-
plaint. However, it is gainsaid that whether conduct is
concerted relates to the ends to be achieved and not to
the means used. Clearly, Daniels' grievance could estab-
lish precedent for other employees. Keokuk Gas Service
Co. v. NL.R.B., supra at 333, 334. Respondent next
argues, citing Schwerman Trucking Co., 212 NLRB 876
(1974), and Hadco-Tiffin, A Division of A-T-O, Inc., 198
NLRB 820 (1972), that Daniels' statement of his intent to
file a grievance must be measured against Respondent's
attitude toward unionism and that inasmuch as Respond-
ent has enjoyed a long history of harmonious labor rela-
tions, there is no evidence to support a conclusion that
Respondent was unlawfully motivated in terminating
Daniels. However, contrary to Respondent, analysis of
the cited Board decisions establishes that the employers'
amicable labor relations was only one factor among
many relied on by the Board in each case to find no un-
lawful motivation. Herein, Wallenberg expressly ad-
mitted that but for Daniels' assertion of his intent to file
a grievance, he would not have been terminated. Hence,
Respondent's harmonious labor relations-and I am not
sure the record even supports such a finding-can not be
considered as an extenuating factor herein. Finally, Re-
spondent argues that "any ambiguous suggestion that
Daniels might file a grievance was an insignificant factor
in the discharge." However, Wallenberg's aforemen-
tioned admission suggests that Daniels' comment was the
sole motivating factor in Wallenberg's decision to termi-
nate Daniels. Moreover, while Respondent asserts that
Daniels' work record also entered into Wallenberg's de-
cision, I note that on direct examination, Wallenberg ad-
mitted that Daniels' attitude was the only factor which
he considered and that Wallenberg mentioned Daniels'
work history on cross-examination in response to a lead-
ing question by counsel for Respondent. Accordingly,
based upon the foregoing, and the record as a whole, I
find no merit in Respondent's defense herein and believe
that Rick Daniels was terminated solely because he ex-
pressed an intent to file a contractual grievance over a
milder form of punishment which Respondent had previ-
ously announced. Accordingly, his discharge violated
Section 8(a)(l) and (3) of the Act. Keokuk Gas Service
Co., supra, Price Brothers Company. supra.
40)7
I)D1CtISI()NS ()t NAI I()NAI. I.AI()OR RIFL.ATIONS B()ARI)
CON I USIONS (OF I xW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Rick Daniels on or about May 22,
1979, and thereafter not reinstating him because he en-
gaged in union or other protected concerted activities,
Respondent interfered with, restrained, and coerced em-
ployees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act and, thereby, committed unfair labor
practices within the meaning of Section 8(a)(l) and (3) of
the Act.
4. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. As I
have found that Respondent unlawfully discharged Rick
Daniels, I shall recommend that Respondent be ordered
to offer him immediate and full reinstatement to his
former position or, if that job no longer exists, to a sub-
stantially equivalent position without prejudice to his se-
niority or other rights and privileges. I shall further rec-
ommend that Respondent be ordered to make him whole
for any loss of earnings he may have suffered as a result
of the discrimination against him by payment to him of
the amount he normally would have earned from the
date of his termination, May 22, 1979, with backpay to
be computed in the manner set forth in F W. Woolworth
Company, 90 NLRB 289 (1952), and with interest as pro-
scribed in Isis Plumbing & Heating Co., 138 NLRB 716
(1962), and Florida Steel Corporation, 231 NLRB 651
(1977).
On the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER' 0
The Respondent, E. A. Nord Company, Everett,
Washington, its officers, agents, successors, and assigns,
shall:
'o In Ihe event no exceptions are filed as provided by Sec. 102.46 of
ihe Rules and Regulations of the National Labor Relations Board, the
I. Cease and desist from:
(a) Discharging, refusing to reinstate, or otherwise dis-
criminating against employees in regard to hire or tenure
of employment, or any term or condition of employment,
because they engage in union or other protected concert-
ed activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right to engage in or refrain from engaging in any or all
of the activities specified in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer Rick Daniels immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered as a
result of the discrimination against him in the manner set
forth in the section of this Decision entitled "The
Remedy."
(b) Post at its Everett, Washington, facility, copies of
the attached notice marked "Appendix." I' Copies of said
notice, on forms provided by the Regional Director for
Region 19, after being duly signed by Respondent's rep-
resentative shall be posted by it immediately upon re-
ceipt 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 by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
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.
' In the event Ihat 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 "Posied Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
408