Meurer, Serafini and Meurer, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1976

224 N.L.R.B. 1373 (N.L.R.B. 1976)

MEURER, SERAFINI AND MEURER, INC 1373
Meurer, Serafini and Meurer, Inc and Walter H Nel-
son Case 27-CA-4587
June 21, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On March 31, 1976, Administrative Law Judge
Irving Rogosin issued the attached Decision in this
proceeding Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed a
memorandum in response to the exceptions and brief
of the General Counsel
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, findings, and
conclusions I 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety
i We agree with the Administrative Law Judge s finding that Charging
Party Nelson was discharged for cause and therefore find it unnecessary to
pass on his conclusions that Nelson s conduct did not constitute concerted
protected activity within the meaning of Sec 7 of the Act
Respondent's answer, filed on September 16, 1975, ad-
mits the procedural and jurisdictional allegations of the
complaint, denies the supervisory status or agency of
named employees, and denies generally the remaining alle-
gations Further answering, Respondent alleges that Nel-
son was discharged for cause I
Hearing was held before me on November 6, 1975, at
Denver, Colorado The General Counsel and Respondent
were represented by counsel, the Charging Party appeared
in pro per All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to intro-
duce oral and documentary evidence relevant and material
to the issues, to argue orally, and to file briefs and pro-
posed findings of fact and conclusions of law All parties
waived oral argument but the General Counsel and Re-
spondent filed timely briefs on December 8, 1975 No pro
posed findings of fact or conclusions of law have been filed
by any of the parties
Upon the entire record in the case, and based upon the
appearance and demeanor of the witnesses, and the briefs,
which have been duly considered, I make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Meurer, Serafim and Meurer, Inc, Respondent herein, is
now, and at all times material herein has been, a corpora-
tion duly organized under the laws of the State of Colora-
do, with its principal office and place of business at Den-
ver, Colorado, where it has been engaged in business of
serving as consulting engineers During the course of its
business operations, Respondent performs services valued
in excess of $50,000 annually for contractors who purchase
and receive goods and materials valued in excess of
$50,000 annually, directly from points outside the State of
Colorado, and who are engaged in commerce within the
meaning of the Act
The complaint alleges, Respondent's answer admits, and
it is hereby found that, at all times material herein, Re-
spondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act
II THE UNFAIR LABOR PRACTICES
DECISION
STATEMENT OF THE CASE
IRVING RoGOSIN, Administrative Law Judge The com-
plaint, issued on September 4, 1975, alleges that Respon-
dent has engaged in unfair labor practices within the mean-
ing of Sections 8(a)(1) and 2(6) and (7) of the National
Labor Relations Act, as amended
Specifically, the complaint alleges that on or about July
8, 1975, Respondent discharged Walter H Nelson because
he had engaged in protected concerted activities and that,
by said conduct, Respondent has interfered with, re-
strained, and coerced employees in the exercise of rights
guaranteed in Section 7, thereby violating Section 8(a)(1)
of the Act
A The Issues
1 Whether the activity in which Nelson engaged on or
about July 1, 1975, constituted protected concerted activity
within the meaning of the Act
2 If the activity in which Nelson engaged on or about
July 1, 1975, did not constitute protected concerted activi-
ty, did it amount to an extension of the concerted activity
in which Nelson engaged as a member of the employee
i Designations herein are as follows The General Counsel unless other
wise stated or required by the context his representative at the hearing
Meurer Serafini and Meurer Inc Respondent the Employer or the Corn
pany Walter H Nelson an individual or the Charging Party the National
Labor Relations Act as amended (61 Stat 136 73 Stat 519 29 U S C Sec
151 et seq) the Act the National Labor Relations Board the Board The
unfair labor practice charge was filed and served on July 18 1975
224 NLRB No 174
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committee in October 1974, or, alone, in December 1974,
in presenting grievances on behalf of a group of employees
then working for Respondent in Wyoming?
3. Whether Respondent discharged Nelson on July 8,
1975, because he had engaged in protected concerted activ-
ity or for just cause, namely, because he had refused to
accept an assignment to another job.
B. Introduction
Respondent has been engaged in the business of provid-
ing engineering and surveying services in the construction
industry. As of July 1, 1975, it employed 7 survey parties,
comprising 14 crews, aggregating some 45 field employees.
The operations are divided into six or eight departments,
consisting of a planning department, a structural depart-
ment, drawing operation or minerals division, design sec-
tion, covering all types of subdivision design, and a survey-
ing section. The total number of employees as of July 1,
1975, amounted to about 85. During the period in question,
E. Max Serafini, Respondent's president, was the
Company's managing officer; Leonard McCoy, assistant
chief engineer, was in charge of all field operations, report-
ing directly to Serafini; and Duwayne Phillips, chief of sur-
veys, was in charge of the survey parties. Each survey crew
usually consisted of a party chief I or II (the head of the
crew), a rodman, an instrument man I or II, and a rear and
head chain man .2
Walter H. Nelson, the Charging Party, was hired by Re-
spondent initially on September 13, 1971, and continued in
its employ until July 8, 1975, when he was discharged un-
der circumstances later described. He started as a rodman
and was promoted to the job of instrument man II (the
higher of the two ratings in this job classification), per-
forming various land survey tasks under the direction of
the party chief, including the operation of instruments,
such as autolight, transit, level, electronic distance meter,
and geometer. In addition, he was required to be able to
perform the duties of a rodman or chain man, to take
notes, and make some calculations. Nelson was later pro-
moted to the job of party chief, reduced to instrument
man, again promoted to party chief, and again reduced to
instrument man in a reduction in force. At the time of his
discharge, he was working as an instrument man 11.1
In October 1973, Local No. 9, Operating Engineers was
certified as the collective-bargaining agent of the field em-
ployees. About a year later, presumably at the end of a
1-year term, a decertification election was held and the
Union was decertified.'
Following the decertification of the Union, the field
crews, with the approval, if not encouragement, of the Em-
ployer, met and selected a committee of five as their repre-
sentative for the purpose of collective bargaining. Al-
2 The Roman numerals after the job classifications, Party Chief and In-
strument Man, denote differentials in wage scales in ascending order
3 There is no allegation or contention that any of these changes were not
economically motivated
4 Nelson's organizational activity in regard to the Union was limited to
voting in both the representation and decertification elections
though Nelson was designated as a member of the
employee committee and participated in the discussions
with the Employer, Jon McDaniel was the spokesman for
the group. Some three or four meetings were held between
the committee and management in a conference room at
company premises. Surveys Chief Phillips, Assistant Chief
Engineer McCoy 5 (and probably Serafini , at one of the
meetings) attended on behalf of management. According
to McCoy, the first meeting occurred in the latter part of
October or early in November.6 The subjects of wages,
working conditions, and presentation of grievances were
discussed at these meetings.
At the first meeting (October 3, according to Nelson),
the employee committee broached a number of issues re-
lating to insurance benefits, sick pay, holidays, overtime,
and out-of-town work but primarily a request for a 10-
percent increase "across-the-board." Eventually, the Em-
ployer granted a 5-percent increase, effective November 1,
as part of a cost-of-living increase, with a similar increase
to be granted in March 1975. Management further agreed,
orally, according to Nelson's uncontradicted testimony, on
a policy of granting a cost-of-living increase on March I of
every succeeding year, with merit increases, as warranted,
October 1 of each year. As will later appear, the employees
did not receive the increase on March 1, 1975, allegedly
because of adverse business conditions. The record reveals
no further activity on the part of the committee, at least
since mid-February 1975.
Sometime in December 1974, however, while Nelson was
working with some 14 other men in Wyoming for several
days, he was asked to represent them in a grievance against
the Company because of dissatisfaction with the living
quarters the Company had provided for them. Nelson also
lodged a protest on behalf of these employees with regard
to the hiring of an employee on that job. Nelson presented
these grievances orally and in writing to Phillips, who was
acting for the Company in Wyoming. Although Nelson
conceded that he probably did not tell Phillips that he rep-
resented the group of Wyoming employees, and Phillips
gave no indication that he understood that to be so, Nelson
testified that he believed Phillips probably realized it from
talking to other employees in the group. To the extent that
it may be material to any of the issues in this case, it is
found that Nelson had been designated by the employees
working in Wyoming to present their grievances to Phil-
lips; that Nelson did so; that Phillips was aware that Nel-
son was acting as their representative; and that, in pre-
senting these grievances, Nelson was engaging in concerted
activities protected by the Act. Although there was no
showing as to the actual disposition of these grievances,
Nelson testified that the Company resolved them to the
satisfaction of the group of employees.
5It was stipulated at the hearing that Leonard McCoy was a supervisor
within the meaning of the Act, but that Party Chief Ronald Smith, hereinaf-
ter discussed, was not
6 Nelson placed the date of the first meeting as October 3 Since it is
undisputed that the decertification petition was filed in October and the
committee was formed thereafter, it is more probable that the meeting was
held later than October 3 Nelson fixed the date of the other meetings as
October 21 and December 23, but testified that he did not attend the Octo-
ber 21 meeting
MEURER, SERAFINI AND MEURER, INC 1375
C Events Culminating in Nelson's Discharge
In March 1975, Surveys Chief Phillips communicated by
radio with David Werner, chief resident engineer , and re-
quested him to locate Nelson and persuade him to join a
crew in Trinidad, Colorado Werner later reported to Phil-
lips that Nelson had refused to go to Trinidad unless he
was made party chief and was paid the applicable wage
rate on that job According to Phillips, the Company al-
ready had two party chiefs on the Trinidad job and had no
need for another
When Nelson returned from the field that evening, he
told Phillips that he hoped things had worked out but that
he could not go to Trinidad Phillips excused Nelson but
told him that, if it happened again, he would have to termi-
nate him Phillips testified that he related the incident to
McCoy, and told him about his conversation with Nelson,
in which he had stated that the Company could not toler-
ate any such refusal in the future The Company sent an-
other employee to Trinidad in Nelson's stead Phillips de-
nied that he had intended to send Nelson to Trinidad to
work as a party chief, although he recalled that Nelson had
refused to accept the assignment unless he received party
chief wages For what it may be worth Phillips conceded,
however, that he actually assigned a party chief to the job
in Trinidad which Nelson had refused
On July 1, Nelson went to work and reported to Party
Chief II Ronald M Smith, in charge of a 2- or 3-man crew
carrying out a survey assignment that day Earlier that
morning, Phillips or McCoy, according to Smith, had noti-
fied him to have Nelson report to Ronald Call and work
with him and Charles Bates at the Meadow Brooks subdi-
vision Smith relayed the instructions to Nelson When
Nelson asked Smith the reason for the assignment, Smith
told him that he assumed that it was because of Nelson's
familiarity with the job at that site, where Nelson had pre-
viously worked Nelson strenuously protested the assign-
ment and left the job
Nelson maintained that both Call and Bates were equal-
ly familiar with the Meadow Brooks subdivision, and that
they possessed the requisite knowledge and experience to
handle whatever problems might arise on that job He con-
cluded that he was, in effect, being asked to perform party
chief duties without being granted the recognition or the
corresponding wages, and considered the assignment un-
fair He became quite irate and, not trusting himself to say
anything more at the time, left for home without reporting
to the Meadow Brooks project Instead, he composed a
memorandum addressed to McCoy, and returned to the
office between 10 and 10 30 that morning The memoran-
dum in its entirety reads as follows
MEMORANDUM 1 July 75
To Leonard McCoy
I am taking unplanned annual leave today to protest
what I believe to be a growing lack of consideration
toward me in particular, and toward the members of
MSM field crews in general, by the management of
this company
As to myself, I was disgruntled yesterday to find my-
self at the Meadowbrook subdivision giving directions
to three individuals of the rank and salary of Party
Chief II, but I was appalled this morning when I was
expected to accompany two of these party chiefs to
that same subdivision because "I am famihar with the
job"-a job which is relatively simple, holds no se-
crets, intricacies, or problems, and which is within the
abilities of any competent party chief, " familiar" or
not I would remind you that I am an Instrument man
II, earning an hourly salary of $4 81, which represents
a reduction of 10 6% of the salary I earned until 24
February 75 While I understand the virtue and neces-
sity of a man performing beyond his duties on occa-
sion, I think it unreasonable and grossly unfair for you
to expect what you did of me this morning, since I am
not even being adequately compensated for the job I
do routinely for MSM I might add that I am doing
my routine job conscientiously, earnestly, and with
good skill It appears that your current expectations of
me belie the reason you demoted me in February to
achieve proper balance among crews If I were pro-
moted to Party Chief I, I would be quite willing and
capable of performing party chief duties I cannot in
good conscience perform them now, in respect for
fairness to the company and my fellow workers
As to the MSM field crews, it would be difficult for
you to convince me that the company is not doing
extremely well by the efforts of its field personnel dur-
ing recent months Your "best of the best" has been
accomplishing essentially error-free work at an un-
precedented high rate of speed and with dependable
skill I don't have statistics and cost-analysis figures or
other arithmetical machinations to support my claim,
I merely see it first hand, every day, outdoors where it
happens I earnestly believe a general wage increase is
long overdue I would suggest an immediate across-
the-board raise of 10% You owe it to the men who
work so well for you
Respectfully submitted,
/s/ Walter H Nelson
Walter H Nelson
1107
McCoy was in the office but not at his desk Nelson
apologized for having left thejob so abruptly that morning,
explaining that he had wanted to protest the assignment
but had not trusted himself to speak because he was too
upset, and had therefore decided to put his complaint in
writing Nelson then placed the letter on McCoy's desk and
said he was ready to go to work McCoy said, "Okay, go
ahead and report to Ron " Nelson asked which "Ron" he
meant, and McCoy told him, "Ron Call " Nelson there-
upon reported to the designated jobsite and performed the
duties which he had been assigned
' Nelson the holder of Bachelor and Master of Arts degrees in English
was employed as an instructional associate in English at the Red Rocks
campus of Denver Community College Boulder Colorado at the time of
the hearing This may have accounted for his writing style In all fairless to
Nelson it should be noted that he was an honest forthright and articulate
witness who made no attempt to slant his testimony in his own favor or to
the detriment of Respondent
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Nelson arrived, he explained to Call and Charles
Bates the reason for his tardy arrival. Nelson related what
had occurred that morning which had culminated in his
submission of the memorandum to McCoy. He also
showed them a photocopy of the letter, which both Call
and Bates read. If Bates made any comment, Nelson could
not recollect it, but Call said that, while Nelson might have
been justified in what he had done, Call regarded it as
rather "incautious" for him to have submitted the memo.
Speculating on McCoy's reaction to the memo, Call pre-
dicted that it might be negative.
Later that morning, Smith informed Call that Nelson
was not on the job. Chief Resident Engineer Werner went
to the job where Smith was working and told him that
Nelson had delivered a letter to McCoy, but Werner did
not indicate whether he was aware of the contents of the
letter.
That evening, when Call and Bates returned from their
job, they "indicated" to McCoy that they had read a copy
of Nelson's memorandum, but, according to McCoy, he
did not discuss it with them. Next morning, however, Mc-
Coy admittedly asked them whether they had seen the let-
ter.
The following day, while Nelson was again working on
Smith's crew, Smith told him that he had heard that Nelson
had written a letter and questioned him about it. Nelson
thereupon showed a copy to Smith and Tom McCoy (not
to be confused with Supervisor McCoy), another crew
member. Nelson asked Smith his opinion of the letter.
Smith told him that he doubted that there was the slightest
likelihood of obtaining a 10-percent increase. When Nel-
son asked him what he thought of the rest of the letter,
Smith said that he was "virtually in agreement with his
complaint" but expressed misgivings about the manner in
which he had proceeded, referring to his refusal to accept
the assignment and leaving work without permission.
Smith ventured the opinion that McCoy might react angri-
ly or adversely. Tom McCoy merely agreed that a wage
increase for the employees had been long overdue.8
Nelson worked on July 3, and may have had some fur-
ther discussion about the episode with Smith and Tom Mc-
Coy. The Company was closed on Friday, July 4 (the holi-
day), Saturday, and Sunday. July 7 was Nelson's regular
day off.
McCoy testified that, after reviewing the memorandum,
he concluded that he would have to take disciplinary ac-
tion against Nelson, but deferred any decision as to what
form that action would take. According to McCoy, he de-
layed a decision as long as possible because of Nelson's
superior work performance. With the July 4 holiday inter-
vening, work was not resumed until July 7. On July 4, the
day of the holiday, McCoy testified he finally reached a
decision .9 On July 7, he discussed the memorandum with
8 That morning or the following morning, Charles Webber, a senior party
chief, approached Nelson in the yard while the latter was loading a vehicle
preparing to leave for the job, and said, "Here's the famous letter writer,"
and embellished the remark Webber told him, "You know the world is
bigger than you are" Since Webber's remarks have not been alleged to
constitute a violation of Sec 8(a)(1) or evidence of animus by Respondent
toward Nelson, no finding is based thereon
9 McCoy testified that he had discussed the memorandum with Chief
Serafini, Phillips, who had just returned from vacation, and
McDaniel, the former spokesman for the employee com-
nuttee. On July 8, McCoy terminated Nelson's employ-
ment under the following circumstances.
Before the survey crews left for work that day, McCoy
assembled them, announced his intention to terminate Nel-
son, and read aloud the following excerpts from the memo-
randum: "If I were promoted to Party Chief I, I would be
quite willing and capable of performing party chief duties.
I cannot in good conscience perform them now, in respect
for fairness to the company and my fellow workers."
Meanwhile, Webber notified Nelson, who was in the yard
loading his truck, that McCoy wanted to see him upstairs.
Nelson went to the dispatching area in the office where
the field crews had been assembled around the dispatching
table. McCoy was in the midst of discussing Nelson's
memorandum, and was alluding to the portion of the mem-
orandum in which Nelson had stated that he could not in
good conscience perform the duties asked of him because
he considered them party chief responsibilities. McCoy an-
nounced that that would be Nelson's last day of employ-
ment. This, according to Nelson, was the first intimation he
had received that he was to be discharged.
McCoy continued: "I like Walt, but because he cannot
do what I ask him to do, I will have to let him go. If I were
to grant you a 10% raise as Walt asked, I would have to lay
half of you off tomorrow." After further explanation of the
Company's inability to grant a 10-percent "across-the-
board" wage increase, McCoy invited questions. There was
no response, and McCoy then turned to Nelson and asked
him whether he understood McCoy's position. Nelson ac-
knowledged that he did, and told McCoy that he accepted
his decision "gracefully," remarking that he had submitted
the memorandum with all due respect, and felt that they
had both "overreacted" to the situation. When he had
completed his explanation, McCoy reiterated that he was
terminating Nelson because he had refused a work assign-
ment, and asked Nelson whether he understood. Nelson
said that he did, and McCoy closed the meeting and the
men left for their fobs.
Nelson remained behind, and asked McCoy whether he
would receive his profit-sharing and vacation benefits. Mc-
Coy told him that he would try to arrange it. McCoy re-
peated a statement he had made in the meeting, that he
was permitting Nelson to work that day, July 8, so that he
could qualify for holiday pay for July 4, in accordance with
company policy requiring employees to work the day after
a holiday in order to be eligible. McCoy also gave Nelson
a "lead" about a job with a surveyor in Castle Rock, who
had an opening for a party chief position. Then, according
to Nelson, McCoy told him, "If you hadn't shown that
letter or memorandum to some of the men, and kept it
between you and me, this wouldn't have happened." Nel-
son then went to work for the remainder of the day. He has
not since been employed by Respondent.
On the night of Nelson's discharge, Smith, his former
party chief, interceded on his behalf, and asked McCoy to
reconsider his decision. McCoy refused, stating that he
Engineer Von Ohlen, Surveys Chief Phillips, Chief Resident Engineer Wer-
ner, and , possibly, President Serafmi before reaching a decision
MEURER , SERAFINI AND MEURER, INC 1377
could not tolerate field workers who "did not want to
work" while there were so many competent unemployed
workers who were willing to do so Then, in McCoy's
words, Smith "chastised [chided(9)]" him for the manner in
which he had discharged Nelson This was an apparent
reference to his dismissal of Nelson before the assembled
employees , instead of discharging him in private, in accor-
dance with McCoy's customary practice McCoy conceded
in his testimony that he had never publicly terminated an
employee before, except in the case of a group layoff His
explanation for doing so in Nelson's case was as follows
It was my determination that Mr Nelson had made
this memo public or had passed it around to the
rest of the field personnel or at least to some of them,
and I felt that it was necessary to publicly answer the
questions which are in the last paragraph , and since
he had publicly indicated that he would not do the
work requested of him, I felt that I had to do it this
way
McCoy told Nelson that he regretted that it had been
necessary to discharge him in front of the employees, and
said that the matter might have been resolved differently if
he had not "made the letter public " io
Admittedly, Nelson had received no warning prior to his
discharge that his refusal to accept this assignment might
result in disciplinary action 11
On about August 1, some 3 weeks after Nelson's dis-
charge, Respondent granted all its employees , including
the survey crews, a 5-percent increase across-the-board Al-
though Respondent had promised the employees a 5-per-
cent increase in March , Respondent failed to grant it at
that time, contending that economic conditions precluded
the action , and the field crews were so notified by McCoy
in March at a meeting called for this purpose According to
McCoy, he had recommended a raise in October 1974 and
again in March 1975, but the Company did not act on it In
June or July, McCoy testified , he again recommended an
increase , and the matter was "take[n] under advisement "
The increase of 5 percent, admittedly less than the amount
recommended by him in June or July, was eventually
granted August 1
Issues, Contentions, Conclusions
The threshold issue is whether, in presenting the letter or
memorandum to Assistant Chief Engineer McCoy on July
1, 1975, Nelson was engaging in protected concerted activi-
ty within the meaning of Section 7 of the Act If this issue
is decided in the negative, it becomes necessary to de-
termine whether Nelson's concerted activities , initially, as a
member of the committee which met with management af-
ter the decertification of the Operating Engineers Local in
October 1974, or, subsequently in December 1974, when he
10 It is not clear from McCoy s testimony whether he meant by the remark
that the matter might have been resolved differently that he would not have
discharged Nelson altogether or merely that he would not have discharged
him in the presence of the other employees It seems more likely in view of
Smith s testimony on the subject that he meant the latter
11 Respondent of course maintains that he was warned on the occasion
of his earlier refusal in March and it is found that he was then so warned
presented the grievances of the crew working in Wyoming,
extended to his activity in preparing and submitting the
memorandum to McCoy Stated differently, did the fact
that the employees had previously authorized Nelson to act
on their behalf , either as a member of the original commit-
tee, or later, as their grievance representative , empower
Nelson, without further authorization , to act as their repre-
sentative in the submission of the memorandum Or, quite
simply, in submitting the memorandum, was Nelson acting
primarily in his own behalf to achieve a personal objective
or on behalf of the entire crew, with their prior knowledge
and consent, for their mutual aid and protection, and with
the Employer's full knowledge that Nelson was so acting
Finally, if Nelson was actually engaging in protected con-
certed activity in drafting and submitting the memoran-
dum to McCoy, did Respondent discharge him for that
reason or for reasons unrelated , in whole or in material
part, to his concerted activities
It is uncontroverted that the committee selected by the
employees, following the decertification of the Union in
October 1974, acted as a labor organization and engaged in
concerted activities in negotiating with Respondent Al-
though Nelson was not the spokesman, serving merely as a
committee member, he attended and participated in at
least two meetings with management Certainly manage
ment was aware of his presence at these meetings , though
McCoy maintained he was uncertain whether Nelson was
actually a member of the committee
At any rate, it is undisputed that, in December 1974,
Nelson presented grievances to Phillips on behalf of the 14
employees who were working in Wyoming, that Phillips
was aware that Nelson was acting at the request of the
aggrieved employees, and that the grievances were re
solved to the satisfaction of those employees There was no
showing, however, that Nelson purported to speak for any
of the field crews at any time thereafter until he submitted
the letter of July 1, which is the crux of this controversy So
far as the employee committee itself was concerned, ac-
cording to Party Chief Smith's uncontroverted testimony,
the committee remained dormant or, at least, inactive,
since mid-February 12
Turning to the question of whether, in drafting and sub-
mitting the letter to McCoy, Nelson was purporting to rep-
resent all crew members, hence engaging in concerted ac-
tivities for their mutual aid or protection, or was merely
acting in pursuit of his own individual interests, the record
reveals the following
12 In an effort to establish that the Company welcomed discussions with
crew members regarding wages hours and working conditions McCoy tes
tified that during the 3 to 5 month period preceding the hearing rodmen
and instrument men had appeared reluctant to approach him He thereupon
requested McDaniel who had acted as spokesman for the committee when
it was originally formed and several of the other people presumably
other members of the committee to post a memorandum which was still
posted at the time of the hearing to the effect that he was willing to talk to
employees The fact that McCoy relied on McDaniel to relay this informa
tion suggests that McCoy at least considered that the committee was still
functioning as late as June or July However since it has not been contend
ed or shown that in delivering the letter to McCoy Nelson was acting in his
capacity as a committee member and as there is no contention that Nelson
was acting in derogation of any collective bargaining representative it is
unnecessary to decide whether the committee existed as a viable employee
representative on that date
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It should be noted at the outset that Nelson 's grievance
had its origin in his demotion in February 1975 from the
position of party chief to that of instrument man. His fur-
ther dissatisfaction stemmed from his conclusion that he
was being asked to perform the duties of party chief with-
out being accorded the title or the commensurate wage. It
is true that he also took occasion to extol the work perfor-
mance of the crews and to deplore the Company's failure
to demonstrate tangible evidence of appreciation. The in-
crease which had been scheduled for March 1, 1975, had
not been forthcoming , and the men had received no in-
crease since November 1974. Nelson testified , without con-
tradiction , that he discussed the situation with the men at
various times, presumably prior to July 1, when he deliv-
ered the letter , and that he was "just kind of getting set [sic:
fed (?)] up." Among those Nelson named were Party Chief
Smith with whom , Nelson testified , he discussed the sub-
ject almost daily between February and July, Ronald Call,
and Marty Whitmark , an instrument man. In one conver-
sation during this interval , according to Nelson 's uncontro-
verted testimony , he discussed with Smith "the viability of
trying to get together and having a meeting again in the
manner of the meetings we had held in October and De-
cember because we were kind of unhappy with the working
conditions. Mr. Smith agreed with me that it might be a
good idea if something were done in the way of asking the
company for compensation , for a raise or something of this
nature." Nelson further testified that he had similar discus-
sions with Call and Whitmark , though he was uncertain
whether the discussion with Call took place in 1975, testify-
ing that it might have occurred earlier. In a conversation
with Whitmark sometime after February 1975, according
to Nelson, Whitmark expressed dissatisfaction and concern
because the employees had not received a "long overdue"
raise . Nevertheless, there is no evidence that Nelson or
anyone else on behalf of the employees protested to the
Company its failure to grant the promised wage increase in
March prior to Nelson's letter of July 1. Nor was there any
showing that crew members with whom he discussed wage
increases ever requested him to approach management on
their behalf, or were aware that he had any intention of
doing so.13
Nelson conceded that the reason he wrote the memoran-
dum on July I was that he was very upset at having been
assigned to Call 's crew at the Meadow Brooks project. He
would never have written the memorandum, he agreed, but
for that. Admittedly, he did not confer with any other em-
ployee before drafting the memorandum , and he was not
authorized nor even requested by any crew member to
write a letter or to act as their spokesman . Moreover, he
admitted that he did not inform any employee of his plan
to write the letter . Apart from voting in the representation
and decertification election, Nelson admittedly played no
13 It will be recalled that McDaniel was the spokesman for the committee
when it was originally formed If the committee was still in existence, it
evidently made no effort to meet with management , and there is no showing
that Nelson undertook to act because of the committee's failure to do so
Presumably the committee accepted McCoy's representation at the March
meeting that the Company was in no position to fulfill its commitment to
grant the employees the 5-percent increase in March , which had been prom-
ised when they were granted the 5-percent increase effective November 1.
significant role in the organizational activities of the em-
ployees. Although chosen a member of the committee
which represented the employees after the decertification
election , he assumed a relatively passive position , so much
so that, according to McCoy, he was not certain that Nel-
son was even a committee member.
Nelson did talk to Call and Bates at the Meadow Brooks
project, after delivering the letter to McCoy, and showed
them a photocopy of the letter . Although sympathetic with
his position , neither of them indicated that they supported
him with regard to any of the matters covered by the letter.
Nor did Smith or Tom McCoy, with whom he discussed
the letter after delivering it to Supervisor McCoy, indicate
that they would support Nelson . Smith suggested that Nel-
son might have gone about the matter in the wrong way,
and predicted that McCoy might react angrily and ad-
versely. Tom McCoy agreed that a wage increase was long
overdue, but gave no indication that he intended to join
with Nelson. Call criticized Nelson as having been "incau-
tious" in submitting the letter , and expressed the opinion
that McCoy's reaction might be adverse , but manifested no
intention to throw in his lot with Nelson . Thus, far from
making common cause with Nelson , the employees with
whom he discussed the matter and whom , incidentally, he
had asked to keep their discussion confidential , indicated
that they disapproved of his method, if not his objective.
The fact that Party Chief Smith may have chided Super-
visor McCoy for discharging Nelson in front of the field
crews and endeavored to persuade McCoy to reconsider
his decision does not establish that Smith was acting con-
certedly with Nelson on the issues raised by his letter. Nor
does the fact that Respondent actually granted the employ-
ees a wage increase of 5 percent 3 weeks after Nelson's
discharge establish that the conduct in which Nelson had
engaged constituted concerted activity.
It should be noted that Nelson was not attempting to
enforce or implement the provisions of a collective-bar-
gaining agreement . There was no collective -bargaining
agreement in effect at the time nor were the employees
represented by any labor organization , the Union, as has
been seen, having been decertified . Furthermore , there was
no showing that the committee selected to represent the
employees was still functioning or that Nelson was author-
ized to act on behalf of the committee in representing the
employees at the time he wrote the letter.
Although the basic issue about which Nelson protested
to Supervisor McCoy, namely, whether instrument men
could be required to work as party chiefs without being
paid the applicable wage scale , could arguably have affect-
ed other crew men, they manifested no interest in this is-
sue. In any event, they did not authorize or request Nelson
to make any protest on their behalf or consent to having
him act as their spokesman in this regard . Nor, as has been
shown , did Nelson inform the employeees in advance of
his intention to lodge such a protest.
On the contrary, the record establishes that Nelson's ob-
ject in submitting the memorandum to McCoy was to com-
plain about his demotion from party chief to instrument
man in February 1975, which, according to Respondent's
uncontradicted evidence, was compelled by business exi-
gencies, necessitating other reductions in classification, as
MEURER, SERAFINI AND MEURER, INC 1379
well as layoffs, at the time The complaint about his reduc-
tion in rank in February, months before his written protest
in July, was clearly personal to him and was not made on
behalf of other crew members who might have been in-
volved In any case, the basis for this grievance was too
remote in time to support a finding that Nelson's action on
July 1 amounted to an extension of his previous activities
As for Nelson's purported attempt to represent the em-
ployees, while it is true that in the introductory paragraph
of the letter he protested management's "growing lack of
consideration toward me in particular, and toward the
members of MSM field crews in general [emphasis sop-
plied]," the body of the letter, more than half, is devoted
exclusively to Nelson's personal grievance concerning his
demotion from party chief to instrument man in February,
and the requirement that he perform party chief tasks with-
out receiving the applicable wage scale Only in the final
paragraph, constituting one-third of the entire letter, does
Nelson conclude with a laudatory review of the perfor-
mance of the field crews, commending them to manage-
ment for a "long overdue" wage increase, and recom-
mending a 10-percent wage increase "across-the-board "
Although not conclusive, the letter is signed by Nelson per-
sonally, in his individual capacity, rather than on behalf of
all the employees It should also be noted, in passing, that
Nelson's recommendation of a 10-percent wage increase
was made on his own initiative The wage increase which
the Company had originally scheduled for March 1975 was
for only 5 percent, which, together with the one granted in
August 1974 would have totaled 10 percent As has already
been observed, the fact that Respondent did subsequently
grant a general wage increase of 5 percent, which obvic. sly
benefited all the employees, even if procured through
Nelson's intervention, does not establish that he was en-
gaging in concerted activities in submitting the letter of
July 1 Nor does the fact that some of the employees, to
whom he showed a copy of the letter in confidence, after
having delivered it to McCoy, may have approved of in
principle Nelson's objectives, though, perhaps not his
methods, retroactively serves to establish Nelson's conduct
as concerted activity Even if the employees had subse-
quently ratified or adopted Nelson's unilateral action, this
would be insufficient to render his activity concerted ac-
tion Although it may be assumed from the contents of the
letter that Respondent, through McCoy, its supervisor,
probably realized that Nelson was purporting to speak for
the other employees, as well as on his own behalf, there
was no showing that McCoy had reason to believe that
Nelson was acting as an authorized spokesman for the em-
ployees In any event, it was McDaniel, not Nelson, who
had acted as spokesman for the employees at the meetings
with management, and neither he nor any other member of
the committee sought a meeting with management between
February, at the latest, and July 1
This raises the question of whether Nelson's concerted
activity while he was a member of the committee or his
subsequent represen ation of the crew in connection with
their grievances in December 1974, while they were work
mg in Wyoming, may be imported to his action on July 1,
so as to constitute an extension of his previous activities 14
Considering the lapse of 4 months since the committee had
engaged in any concerted activities, and the absence of any
evidence that the committee, of which Nelson was origi-
nally a member, had been authorized to function on a per-
manent basis, there is no basis for assuming that Nelson
was acting in his capacity as a member of the committee
when he submitted his memorandum to McCoy Also,
since Nelson had acted in a limited capacity in presenting
the grievance of the field crew in December 1974, more
than 6 months before he registered his personal protest, his
action on July 1 can scarcely be regarded as an extension
of that earlier concerted activity
In this respect, the case is distinguishable from Hugh H
Wilson," where the court sustained the Board's finding
that the employees' activities constituted concerted activi-
ties within the meaning of Section 7, and that their dis-
charge violated Section 8(a)(1) While recognizing that
mere "griping" about a condition of employment does not
constitute concerted activity, and that some form of group
action must, at least, be intended or contemplated, the
court concluded that the expressions of dissatisfaction in
that case amounted to group action, finding that there had
been widespread dissatisfaction among the employees, and
that the discharged employees were expressing the senti-
ments of the employees generally, rather than merely ex-
pressing their individual views The court further found
that, although the employees who were terminated were
volunteers and had not been formally designated as
spokesmen for the other employees, that fact was immater-
ial, since it was clear that they were speaking on behalf of
other employees It should also be noted that the instant
case does not involve concerted action in support of a fel-
low employee's individual grievance, in part, for a higher
rate of pay, which would be protected as concerted action
in furtherance of a common grievance 16
Although Nelson, albeit a self appointed spokesman for
14 See Continental Manufacturing Corp 155 NLRB 255 (1965) where the
Board said The letter which was directed only to the Respondent was
prepared and signed by [the discharges] acting alone She did not consult
with [the other alleged discriminatee ] or any other employee or the Union
about the grievances therein stated or her intention of sending the letter to
[her Employer] There is no evidence that the criticisms in the letter reflect
ed the views of other employees nor is there evidence that the letter was
intended to enlist the support of other employees This letter received no
support from union representatives We disagree with the Trial Examiners
finding that the letter was merely an extension of the concerted efforts of [the
two named employees] responsible for the [conditions prompting their
action] Under all the circumstances we find contrary to the Trial
Examiner that [the] letter was not a protected concerted activity
[Emphasis supplied] 155 NLRB at 257
is Hugh H Wilson Corporation v N L R B 414 F 2d 1345 (C A 3 1969)
6 B & P Motor Express Incorporated v N L R B 413 F 2d 1021 (C A 7
1969) See also Chemvet Laboratories Inc 201 NLRB 734 743 (1973) where
the Board affirmed the Administrative Law Judge s conclusion that by
voicing a protest over the sudden change in [a] working condition [the
employee ] was engaged in a protected concerted activity even though she
had not been designated as spokesman citing Hugh H
Wilson Corporation 171 NLRB 1040 1046 enfd 414 F 2d 1345 (C A 3
1969) Guernsey Muskingum Electric Cooperative Inc 124 NLRB 618 enfd
285 F 2d 8 (C A 6 1960) The Barnsider Inc 195 NLRB 754 760 (1972)
Carbet Corporation 191 NLRB 892 (1971), where the Board quoting from
Hugh H Wilson supra stated Even individual protests are protected as
concerted activity if the matter at issue is of moment to the group of em
ployees complaining and if the matter is brought to the attention of manage
ment by a spokesman voluntary or appointed for that purpose so long as
such person is speaking for the benefit of the interested group
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees, sought to procure a wage increase for all
the employees, surely a matter of moment to the entire
group from which they all later benefited, there was no
showing that the employees as a group had registered any
complaint prior to Nelson's submission of the letter to Mc-
Coy, which Nelson sought to vindicate. On the contrary,
the clear evidence establishes that it was his personal griev-
ance which had prompted Nelson to prepare and submit
the letter, and that the demand for a general wage increase
was incidental, if not an afterthought, designed to reinforce
his own personal complaint. It should be borne in mind
that at no time prior to his decision to protest what he
regarded as an unfair temporary work transfer did Nelson
discuss with the employees his own grievance. Even then
Nelson did not seek to enlist employee support to protest
management's, failure to grant the employees a promised
wage increase. Only after he had delivered the letter to
McCoy, and had been questioned by employees about the
letter, of which they had learned from McCoy, did Nelson
apprise them of the action he had taken and show them a
copy of the letter, admonishing them to keep it confiden-
tial. These employees, while expressing sympathy for his
position and obviously glad to accept the benefit of his
action, criticized his method in undertaking to accomplish
his objective. The case of Buddies Supermarkets," where
the court held that the Board was in error in concluding
that the employee was "inviting the other drivers to join
him in his protests and thereby was seeking to instigate
some form of group action," is apposite.
Conceding that it is not essential to a finding of protect-
ed concerted activity that the employee purporting to act
for the group be designated as spokesman by their fellow
employees or that he speak to the employer on their behalf,
the court observed that the absence of these factors tended
to undermine the Board's position. The evidence in that
case, the court held, disclosed that the employee's com-
plaints were advanced "entirely in pursuit of personal, not
group, economic goals." Further, the court stated, "Even if
his success [in achieving his goal] might have inured to the
benefit of other drivers, it is an exceedingly tenuous basis
upon which to rest a finding of concerted activity. His fail-
ure to accomplish his objective `prompted him to make his
individual grievance known to a number of fellow employ-
ees . . . [but] there is no substantial evidence that the pur-
pose of these conversation was to arouse concerted ac-
tion."' The court concluded that the "standards for
determining the existence of concerted activity set forth in
Mushroom Transportation [Mushroom Transportation Com-
pany, Inc. v. N.L R.B., 330 F.2d 683, 685 (C.A. 3, 1964)]
and subsequent decisions have not been met."
In Mushroom Transportation the court held that, while
conversations between employees may constitute concert-
ed activity, it must appear, at the very least, that the pur-
pose of the conversation is to initiate, induce, or prepare
for group action or that it has some relation to group ac-
tion in the interest of the employees. "Activity which con-
sists of mere talk must, in order to be protected, be talk
looking toward group action. If its only purpose is to ad-
17
N L R B v Buddies Supermarkets, Inc, 481 F 2d 714, denying enforce-
ment 197 NLRB 407 (1972)
vise an individual as to what he could or should do without
involving fellow workers or union representation to protect
or improve his own status or working position, it is an
individual, not a concerted, activity, and, if it looks for-
ward to no action at all, it is more than likely to be mere
`griping.' " 18
Here, it is not even contended that Nelson enlisted or
sought the support of the employees before embarking on
his course of action, either with regard to his individual
protest, which conceivably could have affected other crew
men who might be called to perform similar duties , or with
regard to Respondent's failure to keep its commitment re-
garding the scheduled wage increase. It was not until after
Nelson's fait accompli, in delivering the letter to McCoy,
that he apprised the employees of the action he had taken,
and then only after they had sought to confirm that he had
written the letter and been afforded an opportunity to read
a copy of it. Even then, while content to accept the benefits
which might enure from his action, they expressed misgiv-
ings about the means he had used to accomplish his pur-
pose.
In this respect, the case is also distinguishable from
Barnsider,19 in which the Board, affirming the findings of
the Trial Examiner (now Administrative Law Judge),
found:
. .. The employment condition at which Walsh's ac-
tivity was directed was one that was of direct concern
to all waiters. It had long been a source of employee
dissatisfaction and was a subject of employee com-
plaints communicated to Walsh. Although the $25
"missing check" charge that had been levied against
Walsh's team provided the immediate stimulus for
Walsh's looking into the legality of the unders [sic]
policy, Walsh did not confine his inquiry to the specif-
ic matter involved in his personal grievance, but ex-
tended his inquiry to cover all aspects of that policy
because of the employee complaints that had come to his
attention . His protest that followed similarly went be-
yond his individual situation to reach specifically the
most common application of the unders [sic] policy,
and the one of greatest concern to the waiters, namely,
the practice of charging waiters for errors in adding up
customers' checks. Moreover, as a clear manifestation
that he was not acting solely in his own interests,
Walsh, over the Respondent's objection, took steps to
inform all waiters of what he had learned about the
legality of the unders policy, an action obviously also
aimed at inducing them to make common cause with him
in protesting the Respondent's policy. . . . Nor can
there be any real doubt that the Respondent knew this
to be so. Indeed, the Respondent in practical effect
acknowledged as much by its initial response to
Walsh's protest. . . . [Emphasis supplied.]
In concluding that the protesting employee was more
than a "self-appointed spokesman in thus serving the inter-
est of all" the employees, and that he was acting in an
"employee representative" capacity, the Trial Examiner
further found that the employee's action had "had its gene-
18 330 F 2d 683, 685
19 The Barnsider, Inc, 195 NLRB 754, 760 (1972)
MEURER, SERAFINI AND MEURER, INC 1381
sis in, and was in essence an extension of, the [employees']
concerted action several months before, at the time of [an-
other employee's] discharge, when the employees had
banded together for their mutual aid and protection," and
made certain demands to which the employer acceded, cul-
minating in the appointment of the original protestor,
"who had been the designated spokesman for the informal-
ly organized employee group " 0
While there may be certain superficial similarities to the
instant case, the keystone of the Barnsider decision, the
communication of complaints by the employees to the em-
ployee who purported to act on their behalf, and his action
in informing the employees concerning the legality of the
challenged policy, obviously aimed at inducing them to
make common cause with him in protesting the employer's
policy, present in that case, were factors clearly lacking
here Moreover, since the employee committee in the in-
stant case, of which Nelson had been an inconspicuous
member, appears to have been relatively defunct or, at
least, inactive since the preceding February, and Nelson's
representation of the crew in December 1974 had been for
a limited, specific purpose, it cannot be said that Nelson's
action of July 1 constituted an extension of those concerted
activities
Under somewhat similar circumstances, the Board, with
Chairman Miller dissenting, 21 held that the employer had
unlawfully discharged an employee for voicing certain
complaints to management regarding working conditions,
thereby, according to the majority, engaging in concerted
activities The dissenting opinion maintained that it was
incumbent upon the General Counsel to establish that, "in
addressing her complaints to management about working
conditions, the employee was in fact acting as the author-
ized spokesman of other employees as well as herself, or, at
the very least, that her conduct was inspired by, or directed
towards inspiring, a concerted plan of action by fellow em-
ployees for their mutual aid or protection " On May 2,
1975, the court denied enforcement of the Board's petition,
adopting generally the rationale of the Chairman's dis-
sent 22
20 Id at 760
21 Oklahoma Allied Telephone Company Inc 210 NLRB 916 (1974)
22 N L R B v Oklahoma Allied Telephone Company Inc Docket 74-1461
unpublished (C A 10 1975) Cf Dakota Electric Association 201 NLRB
302 306 (1973) The instant case should not be confused with cases such as
N L R B v Interboro Contractors Inc 388 F 2d 495 (C A 2 1967) and
N L R B v C & I Air Conditioning Inc 486 F 2d 977 (C A 9 1973) in
which individual attempts to enforce the provisions of a collective bargain
ing agreement were held to constitute concerted activities even in the ab
sence of a similar interest by fellow employees See however N L R B v
Northern Metal Co 440 F 2d 881 (C A 3 1971) where the court imposed a
restrictive definition on the term concerted activity and held that an
employee who was discharged for seeking to obtain benefits he believed to
be due him under the contract was not engaged in concerted activity and
that his discharge did not violate Sec 8(a)(1) of the Act Alleluia Cushion
Co Inc 221 NLRB 999 (1975) does not warrant a different result There
the Board reversing the Administrative Law Judge held that an employee
who filed a complaint against his employer under the state OSHA alleging
the lack of safety precautions was engaged in protected concerted activity
notwithstanding that he acted alone and without any outward manifestation
of support from his fellow employees The consent and concert of action
the Board held emanated from the mere assertion of such statutory
rights and in the absence of any evidence that fellow employees disavow
such representation would find an implied consent thereto and deem
In the instant case, in protesting his work assignment,
Nelson acted without prior consultation, consent, or ap-
proval, or even the knowledge of his fellow employees, in
complaining about his individual treatment The demand
for a wage increase , albeit on behalf of all employees, was
merely incidental to his primary purpose Obviously, all the
employees shared a stake in procuring a wage increase and
stood to gain from Nelson's action Their qualified approv-
al of the demand for a wage increase, after learning of the
contents of the letter, while disapproving of his methods,
cannot be viewed retrospectively to establish that at the
time he took action he was doing so on behalf of the entire
group Furthermore, the fact that the entire group would
have benefited, and subsequently may, in fact, have bene-
fited from Nelson's action, does not establish that his pro
test amounted to concerted activity 23
It is therefore found, on the basis of the foregoing and
upon the entire record, that, by protesting his change in
work assignment in his letter of July 1, and incidentally,
attempting to procure a general wage increase for himself
and the other employees, without having previously dis-
cussed his personal complaint, enlisting the support of the
employees in seeking a wage increase , or obtaining their
consent, acquiescence, or outward manifestation of sup-
port, Nelson was pursuing an individual complaint and
was not engaged in concerted activity protected by Section
7 of the Act 24 It has previously been found, for reasons
there stated, that Nelson's action on July 1, in protesting
Respondent's conduct, cannot be deemed an extension
either of the concerted activities of the employee commit-
tee formed after the Union's decertification or of Nelson's
concerted activity in presenting the grievance of the crew
temporarily working in Wyoming in December 1974
Inasmuch as it has been found that Nelson's action in
protesting his change in work assignment , as well as his
demand for a wage increase, constituted individual rather
than concerted action, these findings should be dispositive
of the case For it is axiomatic that an employer may dis
charge an employee, with or without cause, provided only
he is not motivated by a purpose to encourage or discour-
age membership in a labor organization or to interfere
with, restrain, or coerce employees in the exercise of the
right, among others, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or
protection or to refrain from such activities
In the event, however, that the Board should disagree
with the finding that Nelson was not engaged in protected
such activity to be concerted This rationale appears more nearly analo
gous to the case of an employee who seeks to implement an existing collec
tive bargaining agreement and is thereby held to have engaged in concerted
activity even when acting without the consent or manifest support of his
fellow employees
23 See N L R B v C & I Air Conditioning Inc 486 F 2d 977 (C A 9
1973) where the complaint by an employee was held to constitute individu
al action rather than concerted activity notwithstanding that other employ
ees would also have benefited from the employee s efforts
24 In view of these findings it is unnecessary to consider Respondents
argument that because Nelson spoke only in the first person singular rather
than in the plural in the memorandum Respondent had no reason to be
lieve that Nelson was purporting to act as spokesman for the entire field
crew Thus the statement in the letter I would suggest an immediate
raise (Emphasis supplied)
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted activity, Respondent's contention that, in any
event, Nelson was discharged for cause, will be considered.
Respondent contends that Nelson was discharged, not
for submitting the memorandum of July 1, but because he
had refused to accept the job assignment to the Meadow
Brooks project, in effect, defying a reasonable order, and
leaving his job without permission, contrary to company
policy. Additionally, Respondent maintains that it was im-
pelled to take action against him publicly, that is to say, in
an open meeting of the employees, specifically called for
the purpose, because it considered it necessary to reply
publicly to the demands made in the memorandum.
It is conceded that Nelson was a valuable employee, de-
spite the fact that on a previous occasion, in March, several
months before his discharge, he had refused a similar as-
signment to a job in Trinidad, Colorado, basically because
he assumed that the Company expected him to perform as
a party chief, without being paid commensurate wages. At
that time, according to the uncontroverted testimony of
Surveys Chief Phillips, he was told that the Company
would overlook his disobedience on that occasion but that,
if it happened again, he would be terminated. Since it is not
alleged or contended that Nelson's discharge also violated
Section 8(a)(3), it is not necessary to consider whether
Nelson's refusal to accept either assignment was justifiable
or whether Respondent seized upon the incident as a pre-
text for his discharge.
According to McCoy, he decided on the night of July 1,
after having had an opportunity to read the letter, that he
would be obliged to discharge Nelson for refusal to obey
an order.25 That he did not actually discharge him the same
day, or decide the manner in which he would do so, was
probably because he wanted to reflect on his course of
action and undoubtedly consult with his superiors. McCoy
testified without contradiction that on July 7 he discussed
the memorandum with Serafini, Phillips, who had dust re-
turned from vacation, and McDaniel, former spokesman
for the committee, and had received management approval
of his decision, which he had definitely reached on July 4.
This decision apparently involved not only Nelson's dis-
charge but also the manner in which it was to be handled,
although it is not altogether clear that McCoy had decided
when the discharge was to become effective. Friday, July 4,
was a holiday, and the 5th and 6th fell on Saturday and
Sunday when Respondent was closed for business. Mon-
day, July 7, was Nelson's day off, and Tuesday, July 8, the
first day after the holiday, his next regular workday. Nel-
son was discharged, as has been seen, on the morning of
25 Asked at the hearing what, if anything, he decided to do by way of
disciplinary action after reading the memorandum, McCoy testified
Well, at that initial point of reading the memorandum I knew that I
must do something and I am sure that in the back of my mind I knew
that I had to let him go I had worked with Walt [Nelson], well, since
the beginning of 1972, and he was a good man, very reliable employee
I knew that his was the second time he had refused to work I knew that
I had no choice, but I didn't want to make the choice
JUDGE RooosiN • Are you saying that you knew, or had in mind at that
time that he had previously declined employment or a transfer which
you had asked him In other words, were you conscious and aware of it
on July I when you made that determination9
MR McCoy Yes, I was, sir
July 8, but permitted to finish the day's work so as to ren-
der him eligible for holiday pay under company policy.
It is undisputed that Nelson left the job to which he had
been initially dispatched that day without permission al-
though he was admittedly aware that permission was re-
quired.26 Respondent, however, does not appear to have
relied on this as a ground for discharge, basing the dis-
charge on Nelson's refusal to accept the transfer to the
Meadow Brooks project on July 1, after having previously
refused a similar transfer and being warned that a repeti-
tion would constitute grounds for discharge. Although not
strictly material, it may be noted that Nelson' s refusal was
based on his assumption that he was being required to
work as party chief without being paid the applicable rate
of pay.
In this regard, it is significant that, according to Mc-
Coy's uncontroverted testimony, Nelson's duties as instru-
ment man II, required him to "be qualified and to operate
the various surveying instruments . . . , be able to keep
field notes in the field book, reduce the field notes .. .
[and] run a party [survey crew] when . . . necessary." [Em-
phasis supplied.] Moreover, according to Party Chief Smith
who was in charge of the crew to which Nelson had initial-
ly been assigned on the day in question, the job to which
McCoy sought to assign Nelson did not require him to
perform the duties of party chief. Furthermore, both Mc-
Coy and Smith testified that it was common practice for
the Company to assign an instrument man or rod or chain
man of one crew to another crew in order to acquaint the
party chief of the latter crew with the nature and progress
of the job. In any event, although the right of an employee
to be protected in presenting a grievance does not depend
on whether the grievance may ultimately be found to be
meritorious, an employee's refusal to perform duties rea-
sonably required by an employer may constitute just cause
for discharge unless, of course, the employer is motivated
in whole or material part, by a purpose to retaliate against
the employee because he has engaged in protected concert-
ed activity.
Whatever Nelson's reasons for refusing the assignment,
it is undisputed that he did, in fact, disobey his Employer's
order. There is no contention that the assignment required
Nelson to perform duties in that job which might consti-
tute a hardship or were hazardous, onerous, or dissimilar
from duties normally required of him or other survey crews
in the course of the Company's normal operations.
Nelson's refusal was based solely on the ground that he
believed he was being expected to perform party chief du-
ties without being paid commensurate wages. The issue,
therefore, on this aspect of the case, is merely whether Re-
spondent terminated Nelson's employment for the reasons
advanced or whether it resorted to those reasons as a pre-
text to discipline him for engaging in protected concerted
activity.
In this regard, it is appropriate to consider the unrefuted
evidence that Respondent permitted employees to submit
26 His letter to McCoy begins "I'm taking unplanned annual leave today
to protest what I believe to be a growing lack of consideration toward me in
particular, and toward the members of MSM field crews in general, by the
management of this company " (Emphasis supplied )
MEURER, SERAFINI AND MEURER, INC 1383
grievances, requests for wage increases or other demands
concerning their working conditions, either individually or
collectively, and had, in fact, negotiated with the employee
committee without disciplining any of its members or any
other employees for engaging in such activity
Nevertheless, it should be observed that some of the cir-
cumstances surrounding Nelson's discharge cast doubt on
Respondent's motivation and perhaps deserve closer scru-
tiny Thus, the manner of Nelson's discharge, in which he
received what might be regarded as a public rebuke at a
meeting of the employees called, at least in part, for the
purpose of announcing Nelson's discharge, without prior
notice to him, and before Nelson was even summoned to
the meeting (albeit the meeting was also utilized as a vehi-
cle for explaining why the Employer could not grant a
wage increase), raises certain misgivings In this regard,
McCoy's testimony, while somewhat equivocal, raises some
doubts as to Respondent's motivation
I indicated to him that I was sorry that I had to do
it this way, had he not made the letter public, we
could have worked a different situation in his re-
lease 27
The General Counsel appears to contend that McCoy s
statement to Nelson supports his position that the reason
for the discharge was not Nelson's refusal to accept the
transfer but the submission of the memorandum Thus, the
General Counsel points out that, while the letter was deliv-
ered to McCoy on July 1, McCoy did not make his deci-
sion to discharge Nelson until July 4, and did not actually
discharge him until July 8 Meanwhile, as McCoy admit-
ted, on July 2 Call and Bates indicated To McCoy that
Nelson had shown them a copy of the memorandum,
which they read From this, the General Counsel would
have us infer that McCoy decided to discharge Nelson only
after learning that he had shown a copy of the memoran-
dum to employees, and discussed it with them, thereby en-
gaging in concerted activity Hence, the General Counsel
argues, when Nelson was subsequently discharged, it was
for engaging in protected concerted activity This conclu-
sion, in General Counsel's view, is buttressed by McCoy's
remark to Nelson following his discharge that, if he had
not shown the letter to the men, and "kept it between" him
and McCoy, "this wouldn't have happened," meaning, ac
cording to General Counsel, that Nelson would not have
been discharged
This overlooks two factors first, that McCoy categori-
cally testified that he had made up his mind to discharge
Nelson when he actually read the letter later the same day
but had not decided on the method by which this would be
done, giving rise to the inference that he might seek confir-
mation from his superiors, which he later did, second, that
his remark that "this wouldn't have happened," [emphasis
supplied] is equally susceptible to the interpretation that
McCoy was alluding to the manner in which he discharged
Nelson Thus, Nelson's admission that McCoy probably
27 In Nelson s version McCoy told him If you hadn t shown that letter
or memorandum to some of the men and kept it between you and me this
wouldn t have happened
said something to the effect that if Nelson had not made
the letter public, "we could have worked a different situa-
tion in [his] release," an obvious reference to the manner in
which he was publicly discharged 28
Smith's testimony regarding his discussion with McCoy
on the night of Nelson's discharge, in which Smith attempt-
ed to intercede on his behalf, is also significant Smith testi-
fied
[McCoy said] that he felt that he was obligated to
fire him because of his refusal to work I also asked
him if he was making an example out of [Nelson], and
he said no, that he had no intention like that at all,
and I asked if he had possibly felt personally insulted
by the letter, and he indicated that he hadn't
Finally, there is uncontradicted evidence in the record
that Nelson had previously refused a similar assignment
and had then been warned that if it happened again he
would be discharged It did happen again, and Nelson was
discharged
While the record fairly suggests that McCoy may have
been chagrined at the manner in which Nelson had sought
to redress his personal grievance, by publicizing the fact
that he had submitted the memorandum, and may even
have felt that he was stirring up the employees about the
Company's failure to grant them the promised wage in-
crease , Nelson's refusal to accept the assignment , without
just cause, afforded Respondent a legitimate reason for the
discharge It may be noted that the thrust of McCoy's re-
marks to the employees when he announced the discharge
was an attempt to justify the Company' s failure to grant
the increase Whether McCoy exercised tact or good judg-
ment, or a capacity for handling personnel problems in the
manner in which he chose to discharge Nelson, is not the
issue The issue on this aspect of the case is whether Re-
spondent discharged Nelson, in whole or material part, be-
cause he had engaged in protected concerted activity or for
reasons wholly unrelated to that activity
Upon the basis of the foregoing and upon the entire rec-
ord it is found that Nelson did not engage in protected
concerted activity by his action in preparing and submit-
ting the letter to his Employer on Tuly 1, 1975, and, alterna-
tively, if the action did indeed constitute protected concert-
ed activity, that he was not discharged, in whole or
material part, for that reason, but solely because he had
refused to accept an assignment , without proper justifica-
tion, after having been warned on a previous occasion
when he refused a similar assignment that any subsequent
refusal would result in discharge, and that he did, in fact,
later refuse such an assignment
It is therefore found that Respondent did not, on July 8,
1975, discharge and thereafter refuse to reinstate Nelson
because he had engaged in protected concerted activities,
but that it discharged him for good and sufficient cause,
"The General Counsels contention that Nelson engaged in protected
concerted activities by discussing the letter with Call and Bates after having
submitted the letter to McCoy and during the interval between July 1 and
4 before McCoy in the General Counsels view had decided on the dis
charge does not meet the issue of whether in showing the letter to these
employees Nelson was seeking to enlist their support either on behalf of his
grievance or the demand for a wage increase
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that Respondent has not, by reason of said discharge,
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed in Section 7, and has not
thereby engaged in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE ALLEGED UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent, described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
CONCLUSIONS OF LAW
1. Respondent, Meurer, Serafini and Meurer, Inc., a
Colorado corporation, of Denver, Colorado, is and at all
times material herein has been an employer engaged in
commerce and in an industry affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent did not, on July 8, 1975, discharge and
has not since failed and refused to reinstate Walter H. Nel-
son because he had engaged in protected concerted activi-
ties, and has not thereby interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in
Section 7, and has not thereby engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
3. The unfair labor practices in which Respondent is al-
leged to have engaged are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record, and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended:
Having found that Respondent has not engaged in un-
fair labor practices within the meaning of Section 8(a)(1) of
the Act by discharging Walter H. Nelson on July 8, 1975,
and thereafter failing and refusing to reinstate him because
he had engaged in protected concerted activities, and that
Respondent has not engaged in any other unfair labor
practices alleged in the complaint, it will be recommended
that the complaint be dismissed in its entirety.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
ORDER29
The complaint is hereby dismissed in its entirety.
29 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