Hitchiner Mfg., Co., Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 1253 (N.L.R.B. 1978)

HITCHINER MANUFACTURING CO., INC.
Hitchiner Manufacturing Co., Inc. and Howard Lave-
ly. Case 14-CA-10343
September 29, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On July 13, 1978, Administrative Law Judge Ber-
nard Ness issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions' 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, Hitchiner Manufacturing
Co., Inc., O'Fallon, Missouri, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
I The Administrative Law Judge incorrectly stated that employee Rand)
Harris, rather than employee Danny Piel, told Production Manager William
McGuire that he subscribed to a good portion of employee Howard Lavely's
letter concerning Supervisor Ron Hall's treatment of the employees. How-
ever, this inadvertence does not affect the validity of the Administrative Law
Judge's conclusions.
DECISION
STATEMENI OF THE CASE
BERNARD NESS, Administrative Law Judge: Pursuant to
a charge filed by Howard Lavely, an individual, on May 31,
1977, a complaint issued on July 7, 1977, alleging that
Hitchiner Manufacturing Co., Inc., herein called the Re-
spondent, violated Section 8(a)(l) of the Act by discharging
Lavely on April 27. 1977, because he engaged in protected
concerted activities. Respondent denied the discharge con-
stituted an unfair labor practice violative of the Act. Hear-
ing was held before me on August 9-12 1977, at St. Louis,
Missouri.
Upon the entire record, including my observation of the
witnesses and their demeanor, and after due consideration
of the briefs by the General Counsel and the Respondent, I
hereby make the following:
FINDINGS OF FACT
i. THE BUSINESS OF THE RESPONDENT
Respondent, a Missouri corporation operates a facility in
O'Fallon, Missouri, where it is engaged in the manufacture,
sale, and distribution of castings and related products. Its
corporate headquarters are located in Milford, New Hamp-
shire. During the year ending June 30, 1977, Respondent
manufactured, sold, and distributed products valued in ex-
cess of $50,000, which were shipped from its O'Fallon facil-
ity to points located outside the State of Missouri. The par-
ties agree, and based upon the foregoing, I find that
Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE UNFAIR LABOR PRACTICE
The basic issue is whether Lavely was discharged in
whole or in part because he sent a letter to management
officials and consulted with other employees about its con-
tents. The letter contained critical comments of his supervi-
sor and how his treatment of employees had an impact on
the working conditions of employees. Also to be considered
is whether Lavely's conduct constituted protected concerted
activity. For, if such conduct did not fall within the realm
of protected activity, the discharge cannot be deemed viola-
tive of the Act.
Lavely began his employment with the Respondent in
1972. From 1972 until he was discharged on April 27, 1977.
he received four promotions. He was made a leadman in
the foundry effective February 1, 1977.7 Lavely also served
as a quality safety coordinator for about 3 years until he
resigned from that position in early April, 1977, because he
was dissatisfied with the resolution of his complaints con-
cerning safety conditions. The three supervisors at the plant
involved in this case are Plant Manager Robert Bealka.
Production Manager William McGuire and a foundry fore-
man, Ron Hall, Lavely's immediate supervisor.' There are
about 30 employees in the foundry on all three shifts and
about 130 employees in the entire manufacturing operation.
On April 15, 1977, Lavely was given a 3-day disciplinary
suspension for two incidents which occurred on April 14.
The first of the two incidents took place in the morning on
April 14. Lavely was sweeping outside in the yard when
Hall came by and told Lavely to put on his shirt. Lavely
refused. Hall then threatened to report him to McGuire.
Lavely still refused. Hall then reported the episode to
McGuire who told Hall to tell Lavely that he (McGuire)
was directing Lavely to put on the shirt. Upon Hall's fur-
ther order, Lavely still refused. Hall again reported to
McGuire who said that if Lavely still refused to put on his
shirt, Hall should give Lavely a 3-day disciplinary layoff.
Upon Lavely's further refusal, Hall told him he was laid off
for 3 days. Lavely then went to McGuire's office. He was
not wearing his shirt. Hall was also present. Lavely com-
plained that Hall was picking on him and that he was only
kidding in his refusal to put on his shirt. McGuire said the
l The leadman position is nonsupervisor,.
Hall was promoted from leadman to foreman on February 1. 1977.
71R Nl.RB No. 176
1253
DECISIONS OF NATIONAL l.ABOR RELATIONS BOARD
whole thing was silly and told Hall and Lavely to work
together and pretend the incident never happened. He told
Lavely to return to work. About an hour later, Hall and
Lavely had a further encounter, this time over the manner
in which to clean the hole in the switzer wheel. I.avely in-
sisted on wearing a glove while Hall directed him to use a
bare finger. Hall then told Lavely to go to lunch and he
would clean the switzer wheel himself. Lavely then said
Hall could not tell him when to go to lunch. He jumped on
a cart and yelled that he was not afraid of Hall and dared
Hall to hit him. Hall then told Lavely he was laid oh fbr 3
days and to leave the plant. Lavely went to the cafeteria,
had his lunch, and returned to the foundry and sat around.
In the meantime, Hall went to McGuire's home where
McGuire was having his lunch. Hall related what had hap-
pened. McGuire said he would handle it. When McGuire
returned to the plant, he told Lavely he was suspended for
3 days. Lavely then went to see Bealka and related what
had happened and complained of Hall's treatment of em-
ployees. Bealka called in McGuire and Lavely reiterated
that Hall had been picking on him and he had not been
treated fairly. Lavely was excused from the office and then
McGuire suggested to Bealka that he did not want to see
Lavely discharged and that Lavely did a good job.
McGuire suggested Lavely be moved to another job but a
suspension was appropriate. Bealka then told Lavely it ap-
peared to be a misunderstanding between two hot heads
and he felt he could settle it without anyone losing face. He
told Lavely to report back the following morning. When
Lavely returned to the plant the next morning, Bealka told
him the 3-day suspension stood.' Lavely was off work April
15, 18 and 19. When Lavely went home on April 15. he
composed a letter to the Company concerning abusive
treatment by Hall towards employees. Randy Harris. an-
other leadman at the Respondent's facility, came over to
Lavely's home at his request. Lavely showed him the letter
and asked Harris what he thought of it. Harris replied he
agreed with the contents and that an investigation should
be made by the Company of Hall's abusive conduct. On
Saturday, April 16, Lavely, accompanied by Harris,
showed the letter to a labor relations consultant who ad-
vised Lavely he would refine the wording and have it ready'
for Lavely on Monday, April 18. On Monday, Lavely,.
again accompanied by Harris, picked up the letter. At the
Respondent's parking lot, Lavely showed the letter to an-
other employee, Danny Piel, and asked his opinion. Piel
read the letter and told Lavely he agreed with the contents
and that Lavely was doing the right thing. The letter, dated
April 19. received in evidence (G.C. Exh. 2), reads as fol-
lows:
To Whom It May C'oncern:
This letter is to inform anyone in management. who
is concerned about the employees' welfare and human
rights, of the intolerable working conditions that we
workers are forced to endure. Hopefully, you will im-
mediately' investigate the following abuses done by
I The above is based upon a composite of the credited testimony of Lavely.
Hall, and McGuire. Their testimony, while not in complete accord, differs
mostly on emphasis. Bealka did not testify.
Ron Hall, one of your foundry foreman at the Hitch-
iner Plant in O'Fallon. Missouri.
Over the past two years. Hall has viciously assaulted
three people and threatened manN others. He con-
stantly uses insulting language, degrades employees by
squirting them with water, and twists what people say
to his own advantage.
We are working under continual pressure and fear of
Hall. Your employees are afraid to express their dissat-
isfaction or even opinions to management out of fear
that they will lose their jobs or have phusical harm
done to them by Hall. A good example of this is the
attack of Mike Edwards in which Hall hit him in the
throat and caused Mike to be off work for three days.
Two other employees were assaulted and have since
quit. I. personally, have been given extreme harrass-
ment over the past several weeks to the point of receiv-
ing a three day lay-off.
Under these fearful conditions, we employees are
not able to do our best work nor do we feel we are
being allowed to use our right to voice disagreement
and suggest changes. In the past. numerous complaints
to plant management have resulted in no action being
taken.
Up until these incidents, I enjoyed my five years
with the company as did most of the employees. I am
sure the owners of Hitchiners would not like to have
these ugly conditions brought to the eye of the public.
The Company surely wouldn't want a reputation for
physical and mental mistreatment of its' employees.
In closing, I hope someone will take appropriate ac-
tion before Ron Hall critically hurts someone and
makes the company liable for his actions.
Respectfully yours.
Howard Lavely
cc Sent to:
I. President of Company
2. Vice President of Labor Relations
3. Plant Manager
4. Plant Industrial Relations manager
The letter was received at the plant on the morning of April
22 and at the New Hampshire headquarters on April 26.
Lavely testified that the abuses by Hall were based upon his
personal knowledge and what other employees had told
him. He testified he had spoken to a number of employees
early in April and that they related incidents of abusive
conduct by Hall. Lavely admitted he was gathering "am-
munition" against Hall. He stated he went to these people
because he was concerned about the way Hall treated em-
ployees. When asked what motivated him to send the Com-
pany, Lavely testified as follows:
A. Well, the majority of what caused me to, moti-
vated me to write the letter in the first place was every-
thing that I tried to do about anything on the safety,
anything that was disagreeable with Ron, anything
that I tried to do, like that shaker, all the stuff that I
tried to do, it was constant harassment from him that I
got. Really, all I wanted to do was notify the company
1254
11IT(HINER MANUFACTURING CO., INC.
of the type of person that they had as a foreman, and
also what harassment that was going on to the people
at the plant.
Admittedly, most of the complaints against Hall were based
upon Hall's conduct before he became a foreman hut it
cannot be said they were fabricated. About 3 years before.
Hall had punched Edwards in the plant. Edwards was off
work for 3 days afterward. l.avelv testified that he heard
Hall threaten to beat up another employee. Tim Hill.' One
time Hall reportedly urinated on another employee's leg.'
Hall repeatedly insulted and humiliated employees in front
of other employees.7 Respondent's witness. Edwards. who
testified that Hall and he became friends after Hall's apol-
ogy for punching him, described Hall as follows:
Well, Ron is the type of guy you don't piss off bv
saying two words to him or a mouth full of words. it
takes him a little while for him to get hot.
McGuire testified he was aware that Hall had a reputation
ftr being good with his fists. Hall admitted he had told
employee about fights he has had away from the plant.
Lavely returned to work on April 20, without incident,
upon completion of his 3-day lay off. He did not report for
work on April 21 or 22. He had his wife notifv the plant he
was ill.8 On April 21. he was seen in a restaurant during the
day by a supervisor who reported it to McGuire that after-
noon. On Monday, April 25, I.asvely reported for work at 7
a.m. McGuire told him he had seen Lavelv's letter and
asked him to keep it confidential and not show it around.
He said the Respondent would not publicize the letter and
he would investigate the matters raised by Lavely in the
letter. McGuire said he intended to work out a peaceful
settlement. He added that in order to avoid an unpleasant
atmosphere. Lavely was being reassigned to the finishing
department away from Hall while he would still retain his
pay as a leadman. That day Lavely showed his letter to
several employees and asked their opinions. They voiced
agreement with the contents of the letter. McNGuire testified
it was reported to him that Lavely was showing the letter to
employees. On Wednesday, April 27, near the end of the
shift about 3:15 p.m.. Lavely was called into the office. He
credibly testified that McGuire told him Respondent's cor-
porate headquarters had received his letter and had di-
rected lavyely be discharged for insubordination. McGuire
said he had personally hoped to have worked out a peaceful
solution. McGuire told him he was being discharged for
being critical of Hall and showing his letter to employees
and for being seen in a restaurant when he was reported to
be on sick leave.'
4 Edwards. still emploved by the Respondent and working directls under
Hall. testified as a witness for the Respondent He testified Hall wanted him
to perform an operation and Edwards wanted to first coiol off They had
words and then Hall punched him. After Edwards reported the incident to
McGuire, Hall apologized and theN have been friends since
Corroborated substantially bh Respondent's *witness, Edwards, and hb
Piel.
Corroborated by Piel and Edwards.
Testimony of Piel and Edwards. Ltasels testified that one time Hall
posted a note on the bulletin hoard showing the c ompany's monetary loss
because of scrap caused by the work of emplosee Prinster. Ltaely testified
that Prinster cned when he saw the notice.
I He admitted he was not ill hut stased out because he felt that upon
receipt of the letter at the plant taI1ll would explode.
9 McGuire admitted telling l.asels that he had been grossly insubordinate
Respondent's vice president of human relations. Paul
Boorman. who has his office at the corporate headquarters
in New Hampshire, testified that he made the decision to
discharge Lavely. Bealka was scheduled to he at the corpo-
rate headquarters on April 25 for a meeting of several davs
of companywide oftficials. According to Boorman, Bealka
handed him a packet of material on April 26 concerning
Lavely and said he would discuss the matter with Boorman
the following day. That same day. Boorman read [.avely's
letter. Boorman said he reviewed the material that evening.
According to Boorman, included in the packet were: (a) a
statement from Hall dated April 14 regarding the April 14
incidents with Lavely (Resp. F xh. 15): bh) an undated state-
ment from McGuire captioned conversation between l.ave-
ly. Hall. and himself regarding the April 14 incidents (Resp.
Exh. 16). (c) an undated statement from Bealka (G.C. Exh.
5. originally identified as Resp. Exh. 17): (d) four state-
ments from employees, dated April 22. all to the effect that
they were never threatened or abused bv Hall nor were they
fearful of him (Resp. Exhs. 8 through 11): and (e) a memo-
randum from Putnam, dated April 22. reporting having
seen l.avelx in a restaurant on April 21 (Resp. Exh. 18).
Boorman believed, but was not certain, the Putnam memo-
randum was included in the packet. In the late morning on
April 27. Boorman met with Bealka. According to Boor-
man, he told Bealka that L avely's conduct on April 14 fol-
lowed by his absence. supposedly on sick leave, were
grounds for discharge. He also told Bealka he wanted Lave-
ly's charges against Hall thoroughly investigated. Boorman
then called McGuire. He reviewed with McGuire the inci-
dents of April 14 and Lavely's absence on sick leave. Boor-
man commented that such conduct was grounds for dis-
charge. He then asked McGuire how Iavsely had been
acting the last 2 days. McGuire replied that Lavel', was still
making insubordinate remarks about Hall and was showing
his letter to other employees.'? Boorman then told McGuire
that Lavely's acts of insubordination were very serious and
instructed McGuire to discharge Lavely. In a subsequent
letter to Lavely. dated April 29. Boorman stated Lavel' was
discharged because of his "total record of misconduct be-
tween April 14 and April 26. 1977."
Boorman testified that he had Bealka's memorandum.
undated, before him on April 26. The record shows this not
to be the fact. Bealka was not called as witness, although
there was an indication in the record that he would be
called during the presentation of the Respondent's case. His
memorandum, on its face, clearly shows that it was written
ltter Lavely's discharge. His memorandum (i.C. Exh. 5)
reads as follows:
At approximately 8:20 A.M. Howard arrived for the
meeting in my office. Ron Hall. Howard Lavely and
myself were present. At the meeting I stated that a 3
In being critical of Hall but denied he referred to Lavely's letter in this
context. I do not credit his denial and find Lavely's account more reliable.
Putnam, a supervisor in personnel relations. was present dunng this conver-
salion but was not called as a witness.
mB oorman testified McGuire told him I.asels was ,,ali) slandering Hall
I credit McGuire's version that he told Boorman t avely was showing the
letter to other employees. This had been reported to him bh employees on
April 25
1255
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day disciplinary lay off was in accord for insubordina-
tion. Howard asked if it would affect his job and my
reply was no, you can come back after the lay off and
resume your duties as long as you accept Ron Hall as
your foreman and boss. He said I guess I know where
I stand and left.
On April 21st Howard came back to work and there
seemed to be no problem.
On April 22nd I received the letter that Howard dis-
tributed to various company officers. I could not in-
quire because Howard called in *sick and was not at
work.
*Was seen by other employees's on Friday, April 23
drinking beer in a local tavern.
On April 27 1 was in Milford, New Hampshire at a
Company meeting when I received a call from W.
McGuire. He said that Howard was at work and was
informed that he should keep the letter confidential
until some kind of disposition was taken from me.
Howard proceeded to discuss and show the letter to
other employees.
It was my opinion that Howard had left me no alterna-
tive and should be terminated.
Two dates referred to in the memorandum were obviously
incorrect. Lavely returned to work on April 20, rather than
April 21, and Lavely was seen away from the plant on April
21. Contrary to Boorman's testimony, I also find the so-
called packet did not include the employee statements ab-
solving Hall. McGuire had earlier testified Bealka had
shown him Lavely's letter on April 22 when it was received
at the plant. He was instructed by Bealka to solicit informa-
tion from employees concerning Hall and to be prepared to
make a report to him. That afternoon McGuire solicited
opinions from several employees and received statements
from four employees." He also spoke to Piel who told him
Hall was too overbearing and dictatorial and portions of
Lavely's letter were correct. He also spoke to Harris who
refused to become involved. McGuire testified he spoke to
Bealka on the telephone on April 25 while Bealka was in
New Hampshire and apprised him of the employees com-
ments concerning Hall. He credibly testified he gave the
statements to Bealka upon his return from New Hampshire.
Thus, I find, contrary to Boorman's testimony, the em-
ployee statements were not in his possession on April 26.
McGuire further testified these employee statements were
the only written documents of his investigation and he did
not make a personal written report. As for the Hall and
McGuire memorandums concerning the April 14 incidents,
they were not questioned in any way about the memoran-
dums or when they were written. They preceded Boorman
as witnesses. And Bealka who supposedly gave the
"packet" to Boorman did not testify. In any event, Boor-
man knew about the April 14 incidents and Lavely's ab-
sence on April 21 and 22 when he spoke to McGuire on
April 27.
An Resp. Exh. 8 through I --all to the effect they were never threatened or
abused by Hall or were they fearful of him.
Discussion
It is not my prerogative or function to determine whether
Lavely furnished ample grounds for discharge absent his
activity relating to the letter sent to the Respondent. The
narrow question presented is whether Lavely's activity in
sending the letter and discussing it with other employees
was one of the motivating reasons for discharge. Further to
be determined is whether the Respondent, but for such ac-
tivity, would nevertheless have discharged Lavely.
Admittedly there was a great deal of horseplay which
was tolerated and the plant management did not discipline
employees with a heavy hand. I have no doubt that Boor-
man may have been displeased with Lavely's insubordina-
tion on April 14 and his absence from the plant and that he
told McGuire that Lavely's action were grounds for dis-
charge. However, I am convinced that the determination
was made to discharge Lavely when McGuire responded to
Boorman's question as to how Lavely had behaved the last
couple of days (prior to April 27). McGuire replied to Boor-
man that Lavely was still critical of Hall and was showing
his letter to other employees." Boorman replied to Lavely's
April 19 letter concerning Hall on April 29-after Lavely's
discharge. (Resp. Exh. 6) The last paragraph of the letter,
pertinent to the issue presented herein, reads as follows:
Any misconduct by a supervisor will be handled in an
appropriate manner by the company. However, this
does not give you or any other employee the right to be
insubordinate. For the reasons explained to you by Bill
McGuire, your total record of misconduct between
April 14, 1977, and April 26, 1977. caused your dis-
charge.
The only conduct engaged in by Lavely subsequent to his
absence from the plant on April 21 and 22 displeasing to
the Respondent was his continued criticism of Hall and
discussion of his letter with other employees. Supportive of
my finding, I have considered Bealka's after the fact memo-
randum quoted above. Thus, I find the real stimulus for the
discharge was provided when Boorman was told by
McGuire, Lavely was displaying his letter to other employ-
ees and discussing it with them. I am not persuaded that
Lavely would have been discharged absent this report to
Boorman by McGuire.
We now turn to consideration of the issue whether Lave-
ly's conduct relating to the letter complaining about Hall
constituted conduct accorded statutory protection under
Section 7 of the Act. Section 7 of the Act protects "con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection." An employer commits an
unfair labor practice under Section 8(a)(1) when it inter-
feres with, restrains, or coerces employees in the exercise of
their Section 7 rights. However, all concerted activity is not
protected under Section 7. The General Counsel urges that
Lavely's conduct was within the protected ambit of Section
7. The Respondent, in its brief, contends that the conduct
was neither concerted nor protected. In support of its posi-
tion, the Respondent argues that Lavely's conduct was a
mere continuation of Lavely's defiant conduct towards Hall
I2 The credited testimony of McGuire.
1256
HITCHINER MANUFACTURING CO.. INC.
and that showing the letter to Harris and Piel did not make
Lavely's action concerted because his conduct did not con-
template group action. Respondent contends that even if'
Lavely's conduct was concerted, he was seeking to have
Hall removed as a supervisor and accordingly. was not a
protected activity.
Lavely obviously resented Hall's treatment of him on
April 14 resulting in his 3-day disciplinary layoff. This pro-
vided a stimulus in deciding to complain to management
about Hall. But even earlier in April, Hall's supervisory
actions were bothersome to Lavely as evidenced by his writ-
ing notes to himself. However, as a clear manifestation that
he was not acting solely in his own interest, he had dis-
cussed with other employees Hall's conduct towards other
employees. And after preparing a draft of a letter to man-
agement, he first sought the counsel and support of fellow
employees Harris and Piel. They agreed to his proposed
action to send the letter to management. Harris accompa-
nied lIavely to get the view of a labor relations consultant
and was with Lavely when Piel's opinion was solicited. In
the letter he sent to management Lavely did not demand
that Hall be removed from his position as a supervisor. He
represented Hall had been abusive to the employees and
they were fearful of physical harm. He asked that manage-
ment investigate his representations. The letter was not con-
fined to a personal pique against Hall but appeared to re-
flect the views of other employees. In effect, he was
requesting that management discuss with employees their
relationship with Hall. And this is what actually transpired
although McGuire only spoke to a small fraction of the
foundry employees. It should be noted that Harris re-
sponded to McGuire that Hall was too overbearing and
dictatorial and subscribed to a good portion of Lavely's
letter. Hall had a reputation, known even to McGuire. to be
skilled in pugilistic endeavors. Accordingly, I find that be
sending the letter, after first conferring with other employ-
ees, as described above, Lavely was engaged in concerted
action and not in pursuit of his individual interests." The
facts found herein are distinguishable from Mushroom
Transportation Company, Inc. v. N.L.R.B., 330 F.2d 683
(C.A. 3, 1964), setting aside 142 Nl.RB 1150(1963). where
the Court found the individual talks with employees did not
involve an effort to promote any concerted action. See also
Meurer. Serafini and Meurer, Inc., 224 NLRB 1373 (1976),
where the Board found the individual's object in registering
his complaints to management was basically to complain
about his own change in work assignment.
Whether or not protests over supervision constituted pro-
tected activity turn on the facts in a given case. In N.L.R.B.
v. Guernsev-Muskingum Electric Cooperative, Inc., 285 F.2d
8 (C.A. 6, 1960), the Court held that employees complaints
about the capability of a foreman was a proper subject of
concerted activity. The court relied upon N.L.R.B. v. Phoe-
nix Mut. Life Ins. Co.. 167 F.2d 983 (C.A. 7, 1948), cert.
denied 335 U.S. 845 (1948), in which the employees made
known their views and recommendations concerning the
filling of a supervisory position. See also Leslie Metal Arts
Company, Inc., v. N.L.R.B., 208 NLRB 323 (1974). enfd.
509 F.2d 811 (C.A. 6, 1975). In Dohhs House, Inc., v.
13 The Barnsider. In , 195 Nl.RB 754 (1972).
N.L.R.B.. 325 F.2d 531 (C.A. 5, 1963), denying enforce-
ment 135 NLRB 885 (1962), the waitresses walked out dur-
ing the dinner hour in protest over the discharge of a super-
visor. The Board, in finding the employees engaged in a
protected activity, stated the supervisor was a vital link be-
tween employees and management. The court, while agree-
ing that the quality of supervision is a legitimate matter of
concern to employees, held the walkout of the waitresses
was an unreasonable way to make known their concern. It
observed that the cases in which the courts found protests
concerning the supervision to be unprotected all involved
strikes. '
The foregoing considerations compel me to find that
I avely's actions in requesting an investigation bh manage-
ment of Hall's abusive conduct towards employees were of
a protected concerted character within the meaning of Sec-
tion 7 of the Act. Having already observed that I am not
convinced he would have been discharged but for this con-
duct, I further conclude and find the Respondent violated
Section 8(a)(1) of the Act by discharging Lavely on April
27. 1977.
CON('ItUStONS OF LAWV
I. Respondent is an employer within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. By discharging Howard Lavely on April 27, 1977, be-
cause of his concerted activities in registering a complaint
to management concerning abuse by a supervisor of em-
ployees, and failing thereafter to reinstate him, the Respon-
dent engaged in unfair labor practices within the meaning
of Section 8(a)( 1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THM RF.MEI)Y
Having found that Respondent has engaged in unfair la-
bor practices, I shall recommend that it be ordered to cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent unlawfully discharged
Howard Lavely, I recommend that Respondent be ordered
to offer him full and immediate reinstatement to his former
job or, if that job no longer exists, to a substantially equiv-
alent position, without prejudice to his seniority or other
rights and privileges and make him whole for any loss of
earnings and employee benefits he may have suffered from
the date of his discharge to the date reinstatement is of-
fered. The amount of backpay shall be computed in the
manner set forth in F. W. Woolworth Compan'y, 90 NLRB
289 (1950), with interest thereon to be computed in the
manner prescribed in Florida Steel Corporation, 231 NLRB
651 (1977).1
Upon the foregoing findings of fact and conclusions of
" Cleaver-Brooks Mfg Corp v. L. R. B 264 F.2d 637 (C.A. 7. 1959),
cert, denied 361 U S. 817 (1959) L R B s Ford Radio & Mica Corpora-
lion. 258 F2d 457 (C.A 2. 1958): N L R B. s Coal ('reek Coal Co., 204 F.2d
579 (C.A 10, 1953); N L RB. B. 1Wallck. et al 198 F.2d 477 (CA. 3, 1952),
N.LRB v Revnolds International Pen Co, I62 F.2d 680 (C.A 7. 1947).
'5 See, generally. Isis Plumbing and Hearing ('o. 138 NL.RB 716 (1962).
1257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER' 6
The Respondent, Hitchiner Manufacturing Co., its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
of its employees for engaging in concerted activities for the
purpose of collective bargaining or other mutual aid or pro-
tection.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Offer to Howard Lavely immediate and full reinstate-
ment to his former job or, if such job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole in the manner set forth in the section of this Decision
entitled "The Remedy."
(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, or appropriate, to analyze the amount of backpay due.
(c) Post at its place of business in O'Fallon, Missouri,
copies of the attached notice marked "Appendix."'7 Copies
of said notices, on forms provided by the Regional Director
for Region 14, after being duly signed by the Respondent's
representative, shall be posted by Respondent for 60 con-
secutive days thereafter, in conspicuous places. including all
places where notices to employees are customarily posted.
16 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National I abor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 112.48
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 that this Order is enforced by ajudgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
labor Relations Board."
Reasonable steps shall be taken by the Respondent to in-
sure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 14, in writ-
ing, within 20 days from the date of this Order. what steps
the Respondent has taken to comply herewith.
APPEN DIX
NoIC E To EMPLOYLES
POSTED BY ORI)ER ()F illt
NATIONAL LABOR RETI.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations act and has
ordered us to post this notice and we intend to carry out the
order of the board and abide by the following.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representatives of
their choosing
To act together for collective bargaining or other
mutual aid or protection
'To refrain from any or all these rights.
WE \WII.. NOT interfere with, restrain, or coerce our
employees by discharging or in any other manner dis-
criminating against them for engaging in protected
concerted activities.
WE WVll.l. Nor in any like or related manner interfere
with. restrain, or coerce our employees in the exercise
of rights guaranteed them by Section 7 of the National
Labor Relations Act, as amended.
WE Wit.L offer Howard Lavely immediate and full
reinstatement to his former job or, if such job no longer
exists. to a substantially equivalent job. without preju-
dice to his seniority or other rights and privileges.
WE W'il l make whole Howard lavely for any loss of
earnings he may have suffered because of his unlawful
discharge, with interest thereon.
HII( 'HINER MANUI A( IURING Co., IN(.
1258