Munroe, Inc.

National Labor Relations Board - Board Decisions

Aug 16, 2001

334 N.L.R.B. 1119 (N.L.R.B. 2001)

MUNROE, INC. 1119
Munroe, Inc. and Christ Pappas. Case 6–CA–29269
August 16, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On August 18, 1998, Administrative Law Judge
Robert M. Schwarzbart issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel filed cross-exceptions and a supporting
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge's rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
The Respondent has excepted to the judge’s findings
that the Respondent violated Section 8(a)(1) and (3) of
the Act by discharging employee Christ Pappas because
he threatened to and subsequently filed a grievance. For
the reasons set forth below, we find merit in the Respon-
dent’s exceptions.
Employee Christ Pappas worked for the Respondent as
a mechanic/fitter trainee. On about June 15, 1997,2
Pappas completed 2000 hours at 80 percent of the con-
tractual base pay rate and began to inquire about advanc-
ing to the next training level pursuant to the contract.3
Several times during the summer of 1997, Pappas asked
his immediate supervisor, Tony Mulroney, if and when
he was going to be evaluated for a raise. Mulroney re-
plied that Pappas would not be evaluated until the Inland
Hood explosion door project on which Pappas was then
working was completed.4 When Pappas expressed his
frustration at the delay, Mulroney told Pappas that he had
not only had problems with Pappas’ workmanship, but
also with Pappas’ failure to get along with fellow em-
ployees.5 Mulroney also mentioned other problems he
had with Pappas including his sometimes not being at his
workstation.

1 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F. 2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 All dates hereafter refer to 1997.
3 The Respondent’s training program is detailed in Article XX of the
collective-bargaining agreement, which provides in relevant part:
A training program is established for the purpose of training
qualified shop employees.
The Corporation will have the right to employ trainees from
time to time at an entry-level position. The rates of pay for these
trainees will be as follows:
1st level 2,000 hr. at 60 percent of base rate.
2nd level 2,000 hr. at 70 percent of base rate.
3rd level 2,000 hr. at 80 percent of base rate.
4th level 2,000 hr. at 90 percent of base rate.
Each trainee will be reviewed on a semi-annual basis. At
which time, based on his performance and skill level, he will con-
tinue in the program or be terminated.
Beginning July 1, Pappas spoke to his union steward,
Edward W. Benning,6 on four occasions about filing a
grievance.7 Each time, Benning told Pappas that he did
not have the forms and that he would have to get them
from the day-shift steward.
Mulroney left the Respondent's employ on August 22.
Prior to his departure, Plant Manager Benning asked him
to evaluate Pappas. Mulroney replied that since he could
not say anything good about Pappas, he was not going to
evaluate him. Mulroney testified that while he would not
recommend that Pappas be discharged, he also could not
recommend that he be promoted.
Subsequently, Plant Manager Benning observed
Pappas' work and concluded that not only was Pappas'
production minuscule but he “really did not know what
he was doing.” On September 2, Plant Manager Benning
told Pappas he had not done anything the previous work-
day, that he was not going to coddle employees like Mul-
roney had, and that he would fire Pappas if he did not
show him something soon. Pappas replied, “Give me my
raise or fire me now because I'm going to file a griev-
ance.” Plant Manager Benning told Steward Benning,
that Pappas did not leave him much choice.
Immediately after the conversation, Pappas went to
Steward Benning and told Benning that he wanted griev-
ance papers and wanted to file a grievance immediately.
Once again Benning said he did not have the papers and
would try to get them. Pappas did not obtain the griev-
4 Plant Manager Edward D. Benning confirmed that, during June,
when he asked Mulroney what the company should do about Pappas,
Mulroney told him that he was going to use the Inland Hood project to
evaluate Pappas.
5 Mulroney testified that his main problem with Pappas was Pappas’
inability to work with other employees. Pappas, who was classified as
a fitter, was supposed to work in tandem with a welder, but Mulroney
found it “difficult to team him up with anybody with whom he could do
an adequate job.” According to Mulroney, he had discussed Pappas’
difficulties in getting along with his fellow employees many times.
6 Edward W. Benning is the son of Plant Manger Edward D. Ben-
ning.
7 In 1995, Pappas received his only prior wage increase in ultimate
response to a grievance he filed after he had completed 2000 work
hours at the 70-percent rate. Since the plant had been shut down for
economic reasons from February to December 1996, Pappas and other
trainees were not evaluated for pay raises that year.
334 NLRB No. 136
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1120
ance forms until the next day, September 3, when he
went to the union hall.
Later in the day on September 8, Plant Manager Ben-
ning contacted the Respondent’s controller Steven
Zemba. He stated that he wanted to terminate Pappas
because he was well below the skill level required to
progress to the next level. After asking Benning if he
was sure that he wanted to fire Pappas, Zemba directed
him to supply documentation. Plant Manager Benning
then prepared a single page memo setting forth the rea-
sons why Pappas should be terminated. He listed
Pappas’ poor welding skills, his inability to read a blue-
print, his problems working with other employees, and
his poor work habits. He also stated that other employ-
ees resented working with Pappas. He subsequently
submitted his recommendation to Zemba.8
On September 8, Pappas filed a grievance over his
failure to be promoted.9 On September 18, Zemba dis-
charged Pappas because of faulty workmanship, poor
work quality, and his inability to work with fellow em-
ployees. Pappas was the first employee discharged under
article XX of the contract.
The judge found that the General Counsel established
a prima facie case that Pappas’ statement of intent to file
a grievance and his subsequent filing of the grievance
triggered his termination. The judge further concluded
that even though Pappas’ work was unsatisfactory and
that the Respondent had postponed Pappas’ evaluation in
an effort to save his job, the Respondent had failed to
meet its burden under Wright Line10 of showing that it
would have discharged Pappas when it did, absent the
grievance. Accordingly, the judge concluded that the
Respondent violated Section 8(a)(3) by terminating
Pappas because he had expressed his intent to file a
grievance and actually did.
Assuming arguendo that the General Counsel met his
initial burden under Wright Line, we find, contrary to the
judge, that the Respondent has met its burden of showing
that it would have discharged Pappas when it did because
of Pappas’ poor work performance. It is clear that the
Respondent was unhappy with Pappas’ work and that he
had not performed well enough to warrant a promotion
when he completed 2000 work hours in June. Rather
than terminate Pappas, as called for by the contract, be-

8 Although Benning did not give the documentation to Zemba until
after Pappas filed his grievance, the judge found that Benning compiled
the information based on his own observations and on past conversa-
tions with Mulroney before the grievance was filed.
9 The Union’s business agent, Thomas J. O’Connor, had warned
Pappas that the Respondent was not required to give him a raise and
that termination could be one of the alternatives.
10 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
cause he had not attained the necessary skill level to ad-
vance, the Respondent decided to give Pappas another
chance to prove himself by deferring his evaluation until
the Inland Hood project he was working on was com-
pleted. Pappas, however, continued to perform at a sub-
standard level. In fact, it was after being criticized on
September 2, that Pappas issued his ultimatum to “give
me a raise now or fire me because I’m going to file a
grievance.”
Article XX of the contract gave Pappas the right to be
reviewed for a promotion after completing 2000 work
hours and not an absolute right to be promoted. Thus, by
threatening to file a grievance, Pappas was in effect re-
questing an immediate review of his performance. By
insisting on an immediate evaluation, he rejected any
further opportunity offered by the Respondent to prove
himself.11 Forced to evaluate Pappas, the Respondent
made a determination consistent with its view expressed
before the threat to file a grievance and the provisions of
article XX that Pappas should be terminated for not
meeting the required performance standard. We there-
fore find that the Respondent established Pappas was
discharged because of his unsatisfactory work perform-
ance after he had rejected an opportunity by the Respon-
dent to defer the evaluation and further prove his capabil-
ity, and not because he threatened to and did file a griev-
ance. Accordingly, we dismiss the complaint’s allega-
tions.
ORDER
The complaint is dismissed.

Suzanne C. McGinnis, Esq., for the Acting General Counsel.
Ronald J. Andrykovitch, Esq. (Cohen & Grigsby), of Pittsburgh,
Pennsylvania, for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law Judge.
This case was tried in Pittsburgh, Pennsylvania, on a complaint
issued pursuant to a charge filed by Christ Pappas, an individ-
ual.1 The complaint alleges that Munroe, Inc., herein the Re-
spondent or Company, violated Section 8(a)(1) and (3) of the
11 The judge suggests that, instead of terminating Pappas, the Re-
spondent could have exercised its option of opposing his grievance on
the merits. The judge overlooks, however, the fact that by evaluating
Pappas’ performance in response to the grievance, the Respondent was
essentially finding the grievance meritorious. There is no dispute that
Pappas had worked at least 2000 hours as a trainee at the third level and
was entitled to be evaluated in order to determine if he would continue
or be terminated. There is no contention that promotion was automatic
under art. XX. As the judge found, the Respondent had the sole discre-
tion to determine the promotion of its trainee/employees under art. XX.
1 The relevant docket entries are as follows: The charge was filed on
September 25, 1997, the complaint issued on January 2, 1998, and the
hearing was held on February 26 and 27, 1998.
MUNROE, INC. 1121
National Labor Relations Act (the Act), by discharging Pappas
from his employment with the Respondent because he had filed
a grievance protesting the Respondent’s failure/refusal to grant
him a pay increase in accordance with the terms of the collec-
tive-bargaining agreement in effect between the Respondent
and International Brotherhood of Boilermakers, Iron Shipbuild-
ers, Blacksmiths, Forgers and Helpers, Local 154, AFL–CIO,
herein the Union, Pappas’ bargaining representative. The Re-
spondent, in its timely filed answer, denied the commission of
unfair labor practices.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses and to file briefs. Briefs, filed by the General Counsel
and the Respondent, have been carefully considered.2
On the entire record, including my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, was engaged in the fabrica-
tion of boilers and blast furnaces at its facility in Oakmont,
Pennsylvania, from where, during the 12–month period ending
August 31, 1997, it sold and shipped goods valued in excess of
$50,000 directly to points outside the Commonwealth of Penn-
sylvania. The Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
The Respondent, at its facilities in Oakmont, Pennsylvania,
Youngstown, Ohio, and Ringold, Georgia, was engaged in
producing components for boilers and blast furnaces for respec-
tive use in major power plants and steel mills. The Respon-
dent’s Oakmont plant, its sole location involved here, was its
only unionized shop. At all relevant times, the Union was the
bargaining representative of the Respondent’s approximately
30 Oakmont production and maintenance employees. The par-
ties’ current collective-bargaining agreement covering those
employees was effective from November 15, 1995, to October
31, 1999. The Respondent employs employees classified as
welders, fitters, layout workers, and burners within this
bargaining unit.
Article XX of the above collective-bargaining agreement, in
relevant part, was as follows:
ARTICLE XX
Training Program
A training program is established for the purpose of
training qualified shop employees.
The Corporation will have the right to employ trainees
from time to time at an entry-level position. The rates of
pay for these trainees will be as follows:

2 All dates are in 1997 unless otherwise indicated.
1st level 2,000 hr. at 60 percent of base rate.
2nd level 2,000 hr. at 70 percent of base rate.
3rd level 2,000 hr. at 80 percent of base rate.
4th level 2,000 hr. at 90 percent of base rate.

Each trainee will be reviewed on a semi-annual basis.
At [sic] which time, based on his performance and skill
level, he will continue in the program or be terminated.3
Upon the completion of 2,000 hours, each trainee will
be reviewed again. If he has not attained a skill level re-
quired to progress, he will be terminated.
At no time will a trainee remain at a level beyond
2,000 hours.
The Company may at its discretion, progress an em-
ployee at a faster rate if the employee demonstrates that he
has attained a higher level of proficiency.
* * * * *
Article VIII of the labor agreement, Adjustment of Disputes,
provided for a three–step grievance procedure. The first two
steps called for successive grievance meetings to be partici-
pated in by company and union officials who were at increas-
ingly high levels within their respective organizations, while
the last stage provided that where an alleged grievance was not
adjusted satisfactorily at Step 2, “the matter may be submitted
to arbitration.” 4
The Respondent’s president was Philip F. Muck, its control-
ler Steven E. Zemba, and the Oakmont plant manager was Ed-
ward D. Benning. Raymond C. Ventrone was the Union’s busi-
ness manager, Thomas J. O’Connor was the Union’s president
and business agent, while Edward W. Benning, the plant man-
ager’s son, was shop steward on Pappas’ second shift5 at the
Oakmont facility.
3 The General Counsel argues that the provision for trainee review
on a semiannual basis, first added to the most recently negotiated col-
lective-bargaining agreement, was obtained by the Union to counter the
Respondent’s practice of failing to evaluate its trainees at the time
when they had completed the 2000 work hours at a given rate.
4 Contrary to the General Counsel’s argument as to timing that
Pappas’ September 17 termination, in effect, had occurred on the tenth,
or last, calendar day on which a first-step answer was due for his Sep-
tember 8 grievance, the language of Article VIII is more permissive
both with respect to the strictness of the requirement as to when the
grievance should be answered at the first step and the way in which the
due date for the Company’s response was to be counted. Article VIII
provides only that “The employer shall make every effort to answer the
grievance within ten (10) working days from when the grievance has
been filed.” Accordingly, the Respondent had had 10 working, not
calendar, days to answer Pappas’ grievance and, while compliance with
that time frame certainly was encouraged, the language of the contract
did not mandate response within such period.
5 Hereafter, Edward D. Benning will be referred to as Plant Manager
Benning as distinguished from Edward W. Benning, herein Steward
Benning. The complaint in this matter does not allege, the record does
not indicate and I do not find, any cognizable legal irregularity based
on their familial relationship. Rather, the undisputed evidence is that
the two Bennings were not close. Steward Benning had not lived with
his father since he was 10 years old. They spoke together at work about
every 2 weeks and Steward Benning visited his father’s home not more
than about twice a year. Steward Benning had obtained his job with the
Respondent without his father’s help while the senior Benning was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1122
2. Pappas’ termination
On about June 15, 1997, the Charging Party, Christ Pappas,6
a Respondent’s trainee, who then had just completed 2000
hours at 80 percent of the contractual base rate for journeyman
mechanics, began to inquire about advancing to the next trainee
level of 90 percent, pursuant to Article XX, above, of the col-
lective-bargaining agreement. As Article XX provided, the
Respondent was to evaluate trainees after they had worked
2000 hours (the equivalent of 50 40 hour weeks) at which time
the Company was to determine whether to advance them to the
next higher level or to terminate them. As specified in Article
XX, trainees could not continue at the same grade after reach-
ing that point. They either were to be advanced or discharged.7
Pappas testified that, on about August 1, and on other occa-
sions later that month when he still did not receive a pay incre-
ment, he asked his immediate supervisor, Tony Mulroney,
about it. Mulroney replied that he would look into the matter
and would speak to Plant Manager Benning.
On Tuesday, September 2, at approximately 4 or 5 p.m.,
Plant Manager Benning approached Pappas at his workstation
shortly soon after the start of his second shift. As Pappas re-
called, Benning told him that he “didn’t get dick done Friday
night.”8 Pappas explained that he had left work early on Friday
because he had been sick. Benning retorted that he “wasn’t
going to baby you guys like Tony (Mulroney) did.9 I’ll fire you
if you do not start showing me something soon.” To this,
Pappas replied, “Give me my raise or fire me now because I’m
going to file a grievance.” Benning mumbled something and
walked away.
Plant Manager Benning’s account was at least as blunt. He
told Pappas to get off his “dead ass” and get something done;
he was unhappy with Pappas’ performance. Pappas answered
that he was not getting any help from the welder; the welder
was not doing his job. Benning could not recall if Pappas also
had told him that he had gone home sick that preceding Friday
night, but he did declare in response to proffered explanations

working in the field, away from the Respondent’s facility, and had held
his position there for about a month before his father knew that he was
there. Plant Manager Benning testified that, earlier, when he had been
steward, he “was business,” and he expected his son to be the same
way.
6 Pappas, employed by the Respondent as a mechanic/fitter trainee at
the Oakmont facility since October 1993, worked the second shift un-
der supervisor Thomas Anthony (Tony) Mulroney.
7 As will be considered in detail below, Pappas, whose job perform-
ance record was less than exemplary, had received his only prior wage
increase in 1995, in ultimate response to a grievance he had filed on
then completing 2000 work hours. Since the Oakmont plant had been
shut down for economic reasons from February to December 1996,
Pappas and the other trainees were not evaluated for pay raises that
year.
8 As originally described by Pappas and others, this incident involv-
ing him and the plant manager occurred on Monday, September 1.
However, it subsequently was realized that the plant was closed that
Monday for Labor Day, and that Tuesday, September 2 was the first
workday following the Friday referenced in that conversation.
9 Mulroney, Pappas’ immediate supervisor during almost all of his
time with the Respondent, had left the Respondent’s employ on August
22, to take a position with another company.
that he did not want to hear any more of Pappas’ “fucking ex-
cuses.” Benning then left the area.
According to Benning, it was not until the day after this con-
versation, as he walked through the plant, that Pappas told him,
“Either give me my raise now or fire me.” Benning testified
that he thereafter told Steward Benning that Pappas had not
given him much choice.
Immediately after that conversation, Pappas went to Steward
Benning, telling him that he wanted “grievance papers”; he
wanted to file a grievance immediately. Benning, who in the
past had told Pappas that he did not have grievance forms and
was going to get them from the first-shift steward, again said
that he did not have the forms and would try to get them. On
the next day, Wednesday, September 3, Pappas went to the
union hall and obtained the grievance forms from Union Busi-
ness Agent Thomas J. O’Connor.
Pappas testified that when he arrived for work with the sec-
ond shift on September 3, he already had filled out the griev-
ance form. During that day, he gave it to Steward Benning de-
claring that he wanted to file this grievance “now.” Benning
replied that his father (the plant manager) was busy at the time,
promising that he would file it the next day. Pappas asked why
they could not do it then. Benning replied that his father was
busy, that he would give it to him later and that, in the mean-
while, he would put the grievance in his (own) locker. Pappas
reiterated his preference that Benning give the grievance to the
plant manager then, noting that the grievance was dated, but
Benning insisted that he would give it to his father later. Pappas
saw Benning put the grievance in his locker.
Pappas related that Steward Benning thereafter did not return
to the Oakmont facility until September 8, the Monday follow-
ing the above September 3 conversation. However, when
Pappas arrived at the locker room on September 8, he found the
grievance that he had given to Benning lying ripped on the
locker room floor. When Steward Benning came in, Pappas
asked what was happening with his grievance. Pappas then
showed Benning the torn grievance, telling him that he had
found it on the floor. Again, Pappas asked what was going on.
Benning replied that he did not know how Pappas’ grievance
had gotten onto the floor. Pappas declared that he wanted to
refile the grievance. Benning reiterated that his dad then was
busy in a meeting and that he did not want to bother him.
Pappas told him, “Ed, I want to file this grievance now, I want
it filed now.” When Pappas persisted, Benning told him that his
father had said that, if Pappas filed this grievance, he was going
to fire him. Pappas’ response was “Let’s do it now, Ed.” Ben-
ning replied that that was all right, if that is what he wanted to
do. The grievance was filed on September 8.
Between September 8 and 17, Pappas had no conversations
with Plant Manager Benning and did not experience any prob-
lems at work.
Pappas related that he first had spoken to Steward Benning
about filing a grievance on about July 1, 1997, and that he had
asked Benning for grievance forms about four times. On all
four occasions, Steward Benning told Pappas that he did not
have the forms; he was going to get them from Jim Ament, the
day-shift shop steward. On at least two occasions, Benning had
MUNROE, INC. 1123
asked Pappas if he was sure he wanted “to do this because my
dad is going to fire you if you file this grievance.”
On finding his torn grievance on the locker room floor,
Pappas went to see Union Business Agent O’Connor. At the
union hall, Pappas told O’Connor that he needed grievance
papers because he could not get them from the shop steward.
According to Pappas, O’Connor, too, had asked if he was sure
that he wanted to do this. There was no guarantee; the Com-
pany had a lot of competition, was trying to keep costs down,
and it was up to Pappas if he wanted to file the grievance.
Pappas simply told O’Connor to give him the grievance papers,
ending the conversation.10
Mulroney11 testified that when he left the Respondent’s em-
ploy on August 22, Pappas was working on an explosion door
for a hood section on the Respondent’s Inland Hood project for
Inland Steel. Mulroney assigned Pappas to this job during the
preceding March when Pappas had told him that he wanted to
do more complex work. Mulroney had replied that the Inland
Hood project would be a good job for Pappas to test his skills.
According to Mulroney, the explosion door project was consid-
ered “a little more complex” than some of the other work the
Respondent did on hood sections. Mulroney originally had
expected this project to last between 6 to 8 weeks, but it still
was in progress when he left the Company in August. This was
because the project had not had any time constraints and other
jobs were given precedence. As related by Plant Manager Ben-

10 As O’Connor remembered, Pappas had visited him at the union
hall on or before September 5, where they spoke privately. Pappas told
O’Connor that he was at the 80-percent level in the training program at
the Munroe shop; that he believed he had been wrongfully denied his
progression in that training program; and that, since he had passed his
2000 hour mark without receiving a pay increase, he wanted to file a
grievance to recoup. However, there were no grievance forms in the
shop. O’Connor gave Pappas some blank grievance forms to complete
at home. O’Connor also brought out the (contract) agreement book to
explain that, under the collective-bargaining agreement, when making
its 2000 hour evaluation of its employee–trainees, the Respondent had
discretion to determine whether the employee was to be advanced or let
go. Pappas replied that he was beyond his 2000 hours, that he had
grieved this once before—not to O’Connor’s level—but that that griev-
ance had been settled (in 1995) with him receiving a 10-percent in-
crease from 70 to 80 percent of base rate. O’Connor told Pappas that,
under the wording of the agreement, the Company did not have to give
him a raise and, if he should force the Company into a situation where
he either got the raise or was terminated, termination could be one of
the alternatives. O’Connor pointed out that the Company really was
giving Pappas more time to show what he could do; to enhance his
capabilities. It could work either way for him. Pappas said that he still
wanted to file the grievance. O’Connor answered that that would be no
problem and showed him how to prepare the grievance, giving him tips
as to how to make it more effective.
11 Mulroney, who appeared as a General Counsel’s witness, had su-
pervised Pappas for almost his entire time with the Respondent. As
noted, Mulroney had left the Respondent’s employ about a month be-
fore Pappas’ termination. Although, as will be described, his assess-
ment of Pappas’ work performance generally was negative, he had
attempted to be helpful to, and even protective of, Pappas. Having
severed his connections with the Respondent by the time of his testi-
mony, Mulroney was a disinterested witness whose confident testimony
was confirmed, as applicable, by documentary evidence. Accordingly,
much weight is given to his account.
ning, the Inland Hood project finally was completed in mid–
February 1998.
Mulroney recalled that Pappas’ initial job on the Inland
Hood project, on which he worked as a fitter,12 was to cut and
prepare the tubular material to be installed on the fixture. Later
on, Pappas installed the tubes directly onto the fixture with the
aid of a welder, who worked with him. Before March, Pappas
had worked on the cradle, a related operation used to load and
ship finished product.
Mulroney related that on several occasions before his August
22 departure from the Respondent, Pappas had asked if and
when he was going to turn in Pappas’ evaluation for his raise.
Mulroney replied that he would look into it; that the Respon-
dent was waiting until the project either was completed, or
nearly completed, to really look into the matter; and that, al-
though his 2000 hours had been completed, Pappas would not
be evaluated until the project was completed. When Pappas
expressed frustration with this delay, Mulroney told him that,
besides his workmanship, he also had reservations about the
way in which Pappas interacted with his fellow employees; his
main problem with Pappas. Although Pappas was supposed to
work in tandem with a welder, Mulroney found it “very diffi-
cult to team him up with anybody with whom he could do an
adequate job.” Although Mulroney had tried to have Pappas
work with different employees, he just did not get along with
them. “Many times before the night was over,” Mulroney
“would be refereeing between Pappas and the other employ-
ees.” This resulted in work not getting done. Mulroney testified
that he had discussed Pappas’ difficulties in getting along with
his fellow employees with him many times. On three occasions
Steward Benning had been involved. Pappas’ basic response
was that he never had a problem; it always was the other guy.
Other problems Mulroney had had with Pappas included his
sometimes not being at his workstation. On one occasion, Mul-
roney had found Pappas sitting on a bench inside the restroom
just doing nothing. When Mulroney spoke to Pappas about his
being away from his work area, Pappas always had an excuse,
such as that he was having a headache. Pappas also would run a
piece of equipment without doing anything with it; just going
through the motions, but not cutting into the material as he was
supposed to be doing. Mulroney averred that he would let a
string of such incidents go by and then put them all together to
give Pappas more than one example of the problems he had
been having with him.
Shortly after the plant–wide layoff ended in December 1996,
Mulroney had asked Pappas to take a welding test since he had
claimed an ability to weld in his job application. Pappas had
declined to take this test, replying that he had no desire to weld;
he just wanted to be a fitter. Accordingly, Pappas was classified
as a fitter and, according to Mulroney, his inability to weld had
played no part in his evaluation.
Mulroney testified that Pappas did have some talent from a
technical standpoint. When Mulroney left the Respondent, he
would not have recommended either that Pappas be terminated
12 Pappas was one of two fitters assigned to the Inland Hood project.
The other fitter was Lester Burford, who worked the first, or day shift.
Both men were expected to perform essentially the same duties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1124
or promoted. Although Plant Manager Benning had asked that
Mulroney do a written evaluation of Pappas before leaving,
Mulroney did not comply with that request. Plant Manager
Benning long had expressed dissatisfaction with Pappas’ work
to Mulroney because he had not felt that Pappas was producing
enough and because of his problems in working with fellow
employees. Mulroney did tell Benning that his unfavorable
comparisons of Pappas to employee Lester Burford, whom
Benning considered to be more productive at corresponding
work on the first shift, was unfair. This was because, like Bur-
ford who had been moved to other assignments, Pappas, too,
would do other tasks during his shift. Accordingly, Pappas
might not have had any more time than Burford to do the work
being used as bases for comparison.
Plant Manager Benning confirmed that when, in June 1997,
he had asked Mulroney what was the Company to do with
Pappas, Mulroney told him that he was going to give Pappas
the explosion door job to work on to prove himself and that he
would use that job to evaluate him.
The plant manager testified that on the same day, September
2, as he had reproved Pappas for his work, Dan King, the
welder then assigned to work with Pappas, had asked to be
taken off the explosion door job because he did not want Ben-
ning to evaluate him based on his performance while working
with Pappas. Benning told him to do the best he could, but did
not take him off that job.
Benning averred that while observing Pappas at work in Au-
gust 1997, he concluded that Pappas “really did not know what
he was doing.” Pappas was following the same steps as em-
ployee Lester Burford who, on the first shift, was doing essen-
tially the same work as Pappas was supposed to do on the sec-
ond shift. Benning would reassign Burford for a couple of
hours every day to load and unload trucks and to do other work
unrelated to fitting in the hope that Pappas would show what he
could do and pass Burford’s deliberately–reduced production as
a fitter. However, Pappas never did. Not only was Pappas’ pro-
duction minuscule, he also could not read blueprints. Other
employees, principally fitter Tony Dudek, had told Benning
that they were not accomplishing what they were supposed to
because they were helping Pappas read prints.13
Benning testified that he began to compile information on
Pappas after the above September 3 incident when Pappas,
having been reprimanded, had told Benning to give him his
raise immediately or to fire him. That same day, Benning also
called the Respondent’s controller, Zemba, describing the con-
versation he just had had with Pappas and advising that he was
going to start compiling materials to terminate Pappas. Zemba
told Benning to make sure that he had all the information down
in black and white because their boss insisted that everything

13 On cross–examination, Benning conceded that his actual opportu-
nities to personally observe Pappas at work were quite limited. While
his formal work day would end with the first shift at 4 p.m., he usually
remained at the facility for another half hour, providing a 30–minute
overlap with Pappas on the second shift. Also, Benning had been away
from work from March to June 1997, because of illness. His opinions
of Pappas were based on his reviews, while going through the entire
shop at the start of his workday, of what had been accomplished the
night before.
be documented. He directed Benning to send the documentation
to him. Accordingly, before Pappas actually had filed his Sep-
tember 8 pay grievance, based on his own observations and on
conversations he had had with Mulroney before he left the Re-
spondent’s employ, Benning wrote the following comments
concerning Pappas. He gave these to Zemba after Pappas’
grievance was filed:
1. Claims to be a fitter, his fitting ability is that of an
entry-level fitter with no improvement since he has been
recalled.
2. When he runs into a problem on a job he does noth-
ing. Due to his poor blueprint reading skills he can not
come up with a solution.
3. He has a problem working with other men in the
shop.
4. Other workers do not want to work with him be-
cause of his work habits. Because he cannot produce the
expected amount of work during his shift it makes the
welder assigned to work with him look bad.
5. The amount of rework needed to fix his errors re-
sults in a great loss of production time on the next shift.14

After Benning turned the above notes over to Zemba, he con-
tinued to compile information on Pappas’ attendance record.
Zemba testified that on September 2, Plant Manager Benning
called to advise him that he had an employee, Pappas, who was
well below the skill level required to progress and that he
wanted to initiate termination proceedings under Article XX of
the contract. Zemba asked Benning why he wanted to do this
and whether he could provide him with any supporting evi-
dence to substantiate termination proceedings. Benning replied
that “they” had been monitoring Pappas’ progress on the Inland
explosion door job, which had started in the spring of 1997.
Pappas was the fitter on the second turn. Both Benning and
Mulroney (when still there) were disappointed in the productiv-
ity and progress on that job. Zemba asked if Benning was cer-
tain that that was what he wanted to do, since the Company
never had done that before.15 Benning answered that he felt
strongly enough that this case merited termination. Zemba then
directed Benning to supply him with written documentation to
support the Respondent in terminating Pappas. According to
Zemba, nothing was said about a grievance being part of this
recommendation.
Several days later, Zemba received a single sheet of paper
from Plant Manager Benning setting forth the above reasons
why Pappas should be terminated. Zemba phoned Benning and
they reviewed the points Benning had outlined, discussing at
length the first item which noted that, although Pappas claimed
14 Contrary to Plant Manager Benning, Mulroney testified that while
some of Pappas’ work had to be redone, he did not consider this to be
unusual for the complex work being performed. There were “many
times” when Pappas had had to rework what had been done by other
employees.
15 Before September 1997, the Respondent had not terminated any
other employee under article XX. Also, although the Respondent had
given employees with performance problems written warnings and time
off, Pappas never had received a written warning or time off for per-
formance or absentee problems.
MUNROE, INC. 1125
to be a fitter, his fitting ability was that of an entry-level fitter
with no improvement since he had been hired. Zemba, having
looked at Pappas’ personnel file, which showed that Pappas had
been hired as a welder, asked Benning how did one go from
being a welder to a fitter several years down the line. Benning
explained that the Respondent had run a blind advertisement in
the newspapers to which Pappas had responded, describing his
capabilities as a welder. In 1995, when observing Pappas’
weak welding skills, supervision then had thought of terminat-
ing him for that reason. That was when Pappas had informed
Benning that he was not a welder but a fitter.
Benning further reported that Pappas had had trouble work-
ing with the other men. In response to Zemba’s query, Benning
declared that he had had terrible time trying to pair Pappas up
with other men in the shop because they resented working with
him. Finally, Benning reported that a tremendous amount of
rework had to be done on the explosion door where Pappas was
working, which partly was the reason why the job had taken
much longer than had been estimated.
With this information, some of which had been factually
challenged by Mulroney, Zemba again reviewed Pappas’ per-
sonnel file and, within the next several days, informed Philip
Muck, the Respondent’s owner, about his conversations with
Benning and Benning’s memorandum concerning Pappas. He
recommended that Muck proceed with the termination.
Zemba related that it was not until he received Pappas’ Sep-
tember 8 grievance concerning his promotion that he learned
that it had been filed. Zemba had received Benning’s discharge
recommendation before the grievance was filed and had rec-
ommended to Muck that Pappas be terminated several days
after receiving Benning’s memo.
Zemba went to the Oakmont plant on September 18 to per-
sonally terminate Pappas. There, at 4 p.m., he, Plant Manager
Benning, first-and second-shift Shop Stewards Ament and
Benning and Shop Clerk Dan King16 met with Pappas in the
office. Zemba introduced himself to Pappas, telling him that
this was an unfortunate way for them to meet but that, effective
September 17, Pappas’ employment was terminated. Zemba
told Pappas that he was being discharged because of faulty
workmanship, poor work quality, and his inability to work with
his fellow employees. Pappas was informed that he had cost the
Company much time and money through lost productivity and
that he lacked the skills required to progress to the next level.
Therefore, the Respondent was exercising its rights under Arti-
cle XX of the contract to terminate him.
Pappas repeatedly asked Zemba to give him something in
writing, which Zemba reiterated that he did not have to do.
When Pappas persisted, Zemba asked Plant Manager Benning
to photocopy the page of the contract containing Article XX.
When Benning did so, Zemba initialed and handed the photo-
copied page to Pappas. The two shop stewards then accompa-
nied Pappas to clean out his locker, after which Pappas left the
premises. Pappas’ pay to his termination date was forwarded to
him along with any accrued vacation and benefits he may have
been entitled to. According to Zemba, no mention was made

16 The Respondent employed two different employees named Dan
King during the relevant period—the shop clerk and a welder.
during that terminal meeting of the fact that Pappas had filed a
grievance.
By letter, dated September 19, Union Business Manager
Raymond C. Ventrone advised Pappas that the Union had com-
pleted its investigation of the September 8 grievance concern-
ing his pay increase and had concluded that Article XX of the
collective-bargaining agreement between the Union and the
Respondent had not been violated. In accordance with Article
XX, which the letter quoted in relevant part, the Respondent
was not required to automatically award a 10-percent increase
in wages upon an employee’s attainment of 2000 hours and that
it was within the Employer’s discretion to advance trainees to
the next skill level based on their performance. Accordingly,
the Union regretfully had no alternative but to withdraw
Pappas’ grievance at that step of the grievance procedure.
Ventrone again, by October 6 letter, informed Pappas that he
had completed his investigation of Pappas’ second, September
22, grievance, which he had filed protesting his discharge. Ven-
trone noted that in a meeting with Zemba, he was informed that
Pappas continually had been reprimanded for errors in work-
manship and poor productivity and that, although he had repre-
sented himself in his resume as a welder, he later had informed
the Company that he was a fitter. The Union felt that Pappas
had been given every opportunity in the Trainee Program. The
Union also found from its investigation, contrary to Pappas’
contention supported by Mulroney, that there had been no su-
pervision on the second shift, that a union foreman or company
representative had been on duty at all times. Ventrone’s letter
noted that the Respondent, although rejecting his repeated re-
quests to reconsider Pappas’ termination, had exercised its right
under Article XX to discharge him since, having completed
2000 hours, Pappas had not attained a skill level necessary to
progress.17
17 O’Connor testified that he had investigated both of Pappas’ griev-
ances. The first grievance, relating to Pappas’ promotion, was looked
into by telephone. However, in checking out Pappas’ grievance con-
cerning his discharge, O’Connor interviewed Pappas and talked to
approximately 12 of his fellow employees outside of the Respondent’s
premises as they left work. The Union had tried to get work for Pappas
but, in order for him to get onto the Union’s referral list for the more
lucrative outside construction work, Pappas would have to pass a com-
mon arc welding test and would have to take standardized safety train-
ing and a drug test. While with the Respondent, Pappas had performed
inside, or shop, construction. Although O’Connor had urged Pappas to
take courses at the Union-operated school which provided training in
reading blueprints, iron working, carpentry, and boiler making, work
which union members did in the field, Pappas did not take advantage of
this offer.
After being told during the discharge investigation that Pappas had
filed a grievance for having been terminated under the training pro-
gram, none of the 12 employees to whom O’Connor had spoken ex-
pressed a view that Pappas should have been promoted. One employee,
Tony Dudek, informed O’Connor that he had tried to work with and
help Pappas, but that Pappas had known it all and was his own worst
enemy. During that visit, Steward Benning advised O’Connor that
Pappas had been given the job of putting in a small door, had been
given the relevant blueprints and told to do it. This was a limited–scope
project that had to be done within the next few days. Either nothing was
done, or it was not done correctly.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1126
3. Steward Benning’s testimony
Steward Benning testified that, on September 3, Pappas ap-
proached him when he arrived at work. Pappas announced that
he had filled out this grievance paper and would like him to file
it.18 Steward Benning said fine, but told Pappas that he could
not file it that day. He would make copies of it and would bring
it in the next day. Benning related that the grievance happened
to become torn while he was working on a job away from the
Respondent’s facility in response to a company request made to
him later on the evening of September 3. As he was leaving that
night, Benning had placed the grievance on the locker room
table with all of his clothes so that he would not forget it. How-
ever, the grievance form had found its way to the floor. When
Benning got home that night, he did not notice that he did not
have the grievance. He thereafter worked for the rest of that
week in Latrobe, Pennsylvania. During that time, Benning was
not certain whether he had left the grievance in his locker or
had dropped it in his car.
When Pappas showed him the torn grievance on his return to
the Respondent’s premises the next Monday, Benning told
Pappas that he had put his grievance on the locker room table
so that he would not forget to take it but must have forgotten to
do so. He apologized to Pappas, reassuring him that it had not
been intentional. Pappas produced another grievance, declaring
that he wanted to file it that day. Benning said fine, but they
could not do it at that minute because the Company was having
a production meeting in the shop. As soon as that meeting
ended, they would go to the plant manager and submit the
grievance.
Benning explained that, in the past, when he had obtained
grievance forms, he would “run” off about 20 copies, which he
would give out in about 2 days, such was the demand. At the
time in question, Ament, the daylight (first-shift) steward, from
whom Benning usually obtained his grievance forms had been
out sick, so Benning had had a hard time getting additional
forms. By the time Benning could get new forms, Pappas al-
ready had obtained them from the union hall, located 10–15
miles from the Respondent’s facility. While it would have been
possible for Benning to have gotten them from the hall himself,
since the day steward had kept a supply in his locked locker,
Benning had not felt a need to go there. While he might have
been more prompt about getting the grievance forms, other
things were going on.
Steward Benning testified that he did tell Pappas that his fa-
ther had said that, if Pappas filed the grievance, he probably
would be fired. Benning had told Pappas that, if he forced his
father’s hand, Pappas would be discharged because he was not
performing the duties required of a fitter. After Pappas filed his
grievance, Benning had investigated it by asking his father why
Pappas was not getting his raise. His father was the only com-
18 Pappas earlier had told Benning that he had put in his 2000 hours,
that he felt that he was due a raise and that, accordingly, he was going
to file a grievance. When he spoke with his boss (Mulroney), he was
told that his raise was going to depend on how he performed on the
explosion door job. Steward Benning was told this by both Mulroney
and by Pappas. The September 3 grievance was the first one that
Pappas had asked Steward Benning to file in 1997 on the raise issue.
pany official Benning could talk to about this since Mulroney
already had left the Company and there was no second-shift
supervisor. When the steward told him that Pappas had filed a
grievance over the raise, Plant Manager Benning said, “Let
him.” Plant Manager Benning showed Steward Benning
Pappas’ attendance record, which indicated that Pappas had left
early every payday. Pappas’ resume also had contained Pappas’
representation that he could do certain types of welding which,
in fact, he could not. Plant Manager Benning had not been
happy with Pappas’ job performance.
According to Benning, the respective daylight or night-shift
supervisors initiated raises under Article XX of the contract by
sending their written recommendations to management. The
decisions as to whether to grant the raises thereafter were made
by the Respondent’s president, Muck. It is undisputed that,
until Pappas, no employee ever had been discharged under
Article XX.
Benning further related that on the day that Pappas filed his
pay grievance, he spoke with Business Agent O’Connor who
told Benning that he already had talked to Pappas. He informed
Benning that, if Pappas wanted to file a grievance, he should let
him do so; he could not tell a man not to file a grievance. It
might not be in Pappas’ best interest to submit one, but he had
to let him file it. Benning advised O’Connor that he never had
told Pappas not to file the grievance, he just had thought that
Pappas would have been better off by not doing so.
Benning averred that completion of 2000 hours did not al-
ways immediately result in a decision as to whether to progress
or terminate an employee. About 90 percent of the Respon-
dent’s trainees were not evaluated on time. In quite a few in-
stances, if the Company was not happy with an employee’s job
performance, the employee would be advised of this dissatis-
faction and told that the Respondent did not consider the em-
ployee to be ready for a pay increase. As with Pappas, such an
employee would be informed that if his performance on a cer-
tain job improved, he then would be evaluated for a raise. Em-
ployees who were so notified usually would put forth effort and
get their raises. However, they would not be promoted after
completing 2000 hours, but when the Company felt that they
had progressed sufficiently.19
4. Pappas’ 1995 grievance and grievances filed by other
employees
On December 8, 1995, Pappas had filed an earlier, ultimately
successful, grievance concerning his pay raise under the Article
XX training program. Having been hired at 70 percent of jour-
neyman scale, the favorable outcome of this grievance had
resulted in his being raised to the 80 percent level where he was
at the time of his 1997 grievance and discharge. Since, as
noted, he been on layoff with the rest of the employee comple-
ment during most of 1996, Pappas did not complete the 2000
19 Although not all trainees were advanced after putting in 2000
work hours, the record shows that certain employees with whose pro-
gress the Respondent had been satisfied received timely promotions
and that the Respondent had exercised its Article XX right to move up
at least one individual deemed particularly deserving to the full scale
rate before he completed 2000 hours at the 90-percent level.
MUNROE, INC. 1127
hours requisite for his next evaluation under that provision of
Article XX until June 1997.
Pappas testified that the earlier promotion process had begun
in September or October 1995, when he reminded Mulroney
that he had completed 2000 work hours at the 70-percent stage
1 or 2 weeks before. Mulroney replied that he would look into
it and speak to Plant Manager Benning. Pappas told Mulroney
that if he did not get his raise, he would file a grievance.
After a 2-week pay period had passed, Pappas reiterated to
Mulroney that he had his 2000 hours and asked about his raise.
Mulroney once more stated that he would look into it, that he
had to talk to Benning and that he had to write a letter to man-
agement at the main office. Pappas reiterated that if he did not
get his raise, he would file a grievance.
After another pay period had passed, Pappas again prodded
Mulroney who repeated that he would look into it. Pappas also
informed the then-steward, Ed Kachinko, that he would file a
grievance if the pay increase was not contained in his next pay-
check. When the raise was not in his paycheck 2 weeks later,
Pappas filed his December 1995 grievance. The raise was in-
cluded in Pappas’ next paycheck, the Respondent having ac-
ceded to the grievance. As Pappas recalled, no one from man-
agement ever had discussed with him the Employer’s decision
to grant that 1995 wage increase.
Mulroney, who had been Pappas’ immediate supervisor
since about the end of his probationary period, testified that in
1995, he too, had had concerns about Pappas’ work perform-
ance. In Mulroney’s December 18, 1995, memorandum to
Zemba regarding Pappas’ grievance, he noted that for up to 6
weeks before acquiring his 2000 hours, Pappas’ performance
had been lackluster. At Mulroney’s prompting, Pappas had
shown more initiative both in fitting and welding, but Mulroney
still had problems concerning his continuing incompatibility
with certain employees. While attempting to give Pappas the
“benefit of the doubt” by recommending his advancement to
the next level, such advancement would be “generous in lieu of
the fact that termination could have been an alternative.” Mul-
roney’s memo noted that Pappas was of the opinion that a pro-
motion should be granted solely on accumulating 2000 hours
and that if Pappas “had demonstrated more desire to improve
his skills during the course of the year, he would have been
granted a raise in more timely fashion.” Mulroney’s memoran-
dum concluded by noting that “retroactivity should not be a
consideration.” On this recommendation, Pappas was awarded
his 1995 wage increment and, as the Respondent indicates, was
not penalized for having grieved the matter.20
Mulroney related that employees Russell J. Schantz and
Scott D. Stowers also had filed nonmeritorious grievances
about not being promoted at precisely 2000 hours without being
terminated for having done so. Stowers, later having admitted
to the commission of a punishable offense unrelated to his hav-

20 Contrary to Pappas’ testimony that, when he had informed Mul-
roney in 1995 that he would file a grievance if he did not receive his
pay raise, Mulroney did not tell him that his work performance was a
reason for his not having received it, I credit Mulroney’s account that,
before the 1995 evaluation, he had spoken to Pappas more than six
times about issues affecting his work.
ing filed a grievance, was given the opportunity to resign from
the Company with a generic recommendation. Mulroney
averred that, through the years, other employees also had filed
grievances for different reasons and that none were terminated
or discriminated against for having done so. This testimony was
corroborated by Steward Benning who related that he had proc-
essed many grievances. Benning recalled that employees Jim
Haze and Greg Cunningham, after completing 2000 hours, had
successfully filed respective grievances for 2 weeks retroactive
pay when, contrary to what had been promised, they had not
received such increments at the expected times.
B. Discussion and Conclusions
As noted by Administrative Law Judge Raymond J. Green in
his Board-approved decision in Jersey Central Power & Light
Co.:21
. . .the Board has consistently held that an employer
violates Section 8(a)(1) of the Act when it discharges an
employee who, in good faith, files a contractual grievance
even when the grievance is on his own behalf and does not
concern other employees. . . .
. . . .
Further, the Board has held that the discharge of an
employee will violate the Act irrespective of whether the
employee’s contractual claim is found to be meritorious.
Indeed, any contrary result would . . . tend to vitiate the
enforceability of labor contracts as it would tend to dis-
courage the filing of grievances by employees. For if, un-
der this Act, the filing of a grievance will only be pro-
tected if the grievance has merit, it may be assumed that
few employees would be willing to take such a gamble.
Therefore, unless employees feel free to file grievances,
the collective bargaining agreement would, in effect, be
unenforceable.

In the present matter, violation of the Act is proved should
the General Counsel make a prima facie case that Pappas was
terminated for having filed a grievance, in this case concerning
his promotion pay, and if the Respondent does not establish that
it would have discharged him in the absence of that grievance.22
Here, Pappas, at his own request, was assigned by Mulroney
in March 1997, to work on the Inland Hood explosion door
project, which, Mulroney described as a “little more complex”
than some of the other work that the Respondent did on hood
sections. In mid-June, Pappas completed 2000 work hours at
his rate of 80 percent of journeyman mechanic’s basic pay and,
under the terms of Article XX of the effective collective-
bargaining agreement, his next evaluation had become due.
Mulroney testified that, on several occasions during the sum-
mer of 1997 when Pappas had asked if and when Mulroney was
going to turn in his evaluation, he, inter alia, had told Pappas
that, although his 2000 hour evaluation was past due, he would
21 269 NLRB 886, 888 (1984). In Jersey Central Power & Light Co.,
supra, the there-alleged discriminatee’s discharge was found to have
been precipitated by his mere announcement of an intention to file a
grievance while, here, such a statement of intent not only was made but
fulfilled.
22 The Zack Co., 278 NLRB 958 (1986).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1128
not be rated until the Inland Hood project on which Pappas then
was working was completed. Plant Manager Benning con-
firmed that, during that June, when he had asked Mulroney
what the Company should do about Pappas, Mulroney told him
that he was going to give Pappas the explosion door job to
work on to prove himself and that he would use that job to
evaluate him. Steward Benning, too, had heard from both Mul-
roney and Pappas that Pappas’ raise was going to depend on
how he performed on the explosion door project. Accordingly,
while Pappas never agreed to the arrangement, it is factually
undisputed that the Respondent, after not having evaluated
Pappas for promotion in June on his completion of 2000 work
hours as specified in Article XX, had announced its decision to
defer such assessment until completion of the Inland Hood
explosion door project. Although this explosion door project,
still on-going in late August, obviously was taking longer than
the 6 to 8 weeks Mulroney had estimated for its completion
during the preceding March when he put Pappas on it, there is
no evidence that the fact that this job still was in progress at
that time had changed the Respondent’s decision to withhold
Pappas’ evaluation until the Inland Hood task was finally fin-
ished. Accordingly, since the Inland Hood explosion door pro-
ject ultimately was not completed until mid-February 1998,
from the Respondent’s stated intent prior to September 2, ab-
sent the disputed discharge, Pappas reasonably could have re-
mained in his job with the Company for what ultimately turned
out to be approximately 5 months past his September 17 termi-
nation date before being evaluated for his next pay increment.
While, as the General Counsel points out, Article XX of the
labor agreement also provided for semiannual employee
evaluations under the Respondent’s training program, that
process was not a factor in determining whether unlawful con-
duct occurred in this matter. Since the language relating to
semi-annual review had been newly added to the most recent
collective-bargaining agreement, the parties had not paid atten-
tion to it. Pappas’ relevant grievance was based solely on his
not having been evaluated after 2000 work hours and no refer-
ence ever was made to semiannual review by Pappas, the Un-
ion’s representatives or the Respondent.
I find that the General Counsel has established a prima facie
case that Pappas’ September 2 statement of intent to file a
grievance concerning his wage increase, and his filing of that
grievance on September 8, triggered his termination on Sep-
tember 17. The General Counsel, as noted, has shown that
Pappas, in the absence of that grievance, reasonably could have
expected to continue in the Respondent’s employ until the
Inland Hood project on which he had been working was com-
pleted before again being evaluated; that the Respondent’s
failure to evaluate Pappas when he had completed 2000 work
hours at his current pay level was inconsistent with the relevant
language of the collective-bargaining agreement; that the Re-
spondent never before had terminated a trainee under Article
XX of the contract; that, unlike other employees whose job
performance had been at issue, Pappas previously never re-
ceived a written warning or had been given time off; that be-
tween Plant Manager Benning’s September 2 criticism of
Pappas’ work performance and his termination 15 days later,
Pappas had had no other work-related incidents which would
have further invoked the Respondent’s displeasure; and that all
substantive measures taken by the Respondent to discharge
Pappas originated from the September 2 conversation when
Pappas, responding to Benning’s criticism, told the plant man-
ager to give him his raise or fire him immediately because he
was going to file a grievance. The record shows that Benning
had then phoned Zemba at once to recommend Pappas’ termi-
nation and began his written compilation of information con-
cerning Pappas to support that recommendation. Zemba ulti-
mately pursued this with Company President Muck. As noted,
all this resulted in an abrupt change in the Respondent’s previ-
ously announced plan to defer Pappas’ evaluation to the com-
pletion of his current project. Although, as Benning and Mul-
roney both testified, Benning long had been dissatisfied with
Pappas’ work, it was not until September 2, that Benning had
been motivated to put anything in writing about Pappas or to no
longer tolerate his performance on the job.
As to whether Pappas actually had told Benning on Septem-
ber 2, that he would file a grievance if he did not receive his
raise immediately, Benning, contrary to Pappas, averred that he
only had heard Pappas tell him to give him his raise or fire him
then. Benning did not say that he also had heard Pappas state
that he would file a grievance. While Pappas generally was not
an impressive witness, I credit his testimony that he had told
Benning on that occasion that he would file a grievance if his
raise was not granted because such declaration would have
been consistent with his pattern of conduct. The record shows
that he had made a like statement of intent to Mulroney and did
file a grievance when his raise was delayed in 1995; that he had
been talking to Steward Benning about filing a grievance con-
cerning his 1997 pay raise since August 1; and that, when that
steward still could not provide a grievance form after the plant
manager had criticized him on September 2, Pappas went to the
union hall himself to obtain the necessary grievance forms.
Pappas had not been subtle about his use of the contractual
grievance procedure. It had been his way of successfully ob-
taining his 1995 pay increase and, if necessary, it was going to
be his means of getting his next raise in 1997. Since the filing
of a grievance was so much a part of Pappas’ methodology for
dealing with his pay-raise problem on September 2, and so
conformed to what he previously had said and done in his ef-
forts to receive promotion in 1995 and 1997, I find that when,
on September 2, Pappas told the plant manager to give him his
raise or to fire him, he also told Benning that if he did not re-
ceive his raise, he would file a grievance.
Even if it were to be found, consistent with Benning’s ac-
count of their September 2 conversation, that Pappas had not
specifically threatened to file a grievance, but merely had regis-
tered the protest described by Benning, that Pappas should be
given his raise or be fired immediately, the Respondent’s ac-
tions taken in response thereto still would have been violative
of the Act. As noted by the U. S. Supreme Court in NLRB. v.
City Disposal Systems, Inc.:23

In practice, however, there is unlikely to be a bright–
line distinction between an incipient grievance [and] a

23 465 U.S. 822 (1984).
MUNROE, INC. 1129
complaint to an employer. . . . It is reasonable to expect
that an employee’s first response to a situation that he be-
lieves violates his collective bargaining agreement will be
a protest to his employer. . . . Thus, for a variety of rea-
sons, an employee’s initial statement to an employer to the
effect that he believes a collectively bargained right is be-
ing violated. . . . might serve as both a natural prelude to,
and an efficient substitute for, the filing of a formal griev-
ance (bracketed word added).

Noting that Pappas’ September 2 statement to Plant Manager
Benning that he would file a grievance if he did not immedi-
ately receive what, in his view, was his overdue pay raise, set in
motion the activities of the Respondent’s officials which led
directly to Pappas’ discharge; that the Respondent had become
abruptly unwilling to tolerate Pappas’ long-standing job diffi-
culties; and that these factors had resulted in the prompt
abandonment of the Respondent’s previously-announced plan
not to evaluate Pappas until work on the Inland Hood explosion
door project was completed, I conclude for additional reasons
set forth below that the Respondent has failed to meet its
burden under Wright Line24 of showing that it would have dis-
charged Pappas when it did even if he had not stated his intent
to file the grievance here and, thereafter, had not done so.
In agreement with the General Counsel, the Respondent had
been free to evaluate and, if deemed appropriate, to terminate
Pappas under the labor contract either when he completed 2000
work hours in June, or when his semi-annual review became
due. Even apart from these evaluating opportunities, the Em-
ployer, having received the grievance, still had had valid re-
course. Besides promptly terminating Pappas, there had been
the option of opposing his grievance on the merits, as it saw
them, through the various steps of the already-invoked contrac-
tual grievance procedure. The Respondent, however, could not
lawfully terminate Pappas when it did for having filed a griev-
ance asserting his right to the timely evaluation or pay raise he
had not been given under Article XX of the collective-
bargaining agreement.
It would not be correct to argue that there was no violation in
this matter since Pappas ultimately received at least some of
what he had seemed to be trying for through the grievance
process—an earlier evaluation than he otherwise would be
getting. As this argument goes, since his value as an employee
had been assessed in response to his grievance, he was properly
terminated because the Employer, in valid exercise of its dis-
cretion,25 had found that Pappas’ skills did not warrant his pro-
motion to the next pay level. Such premise is invalid because
the record shows that Pappas’ evaluation, to the extent that it
was given, had no procedural separateness but was merely an
intrinsic part of the push to terminate found unlawful here.
That the Respondent, as it argues, had no across-the-board
history of discharging, or otherwise discriminating against, its

24 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (C.A. 1 1981), cert.
denied 455 U.S. 989 (1982), approved in Transportation Management
Corp., 462 U.S. 393 (1983).
25 The record shows that the Union has recognized the Respondent’s
sole discretion to determine the promotion of its trainee/employees
under Article XX.
employees for filing grievances, which situation earlier had
benefited Pappas and other employees, does not conclusively
preclude the finding here that it had taken reprisal against
Pappas in 1997 for his stated intention to pursue, and actual use
of, the grievance procedure.26
In finding the violation here, essentially that Pappas’ Sep-
tember 8 grievance, and the preceding threat to file same, had
accelerated his termination and/or made it inevitable,27 I note
the Respondent’s uncertainty that his job performance to that
time would have supported the merits of his September 8 griev-
ance. Although his former immediate supervisor, Mulroney,
had tried to help him and, as noted, had been protective, Mul-
roney’s assessment of Pappas’ job performance never was bet-
ter than tepid. Mulroney’s difficulties with Pappas, from his
inability to get along with his fellow workers, particularly the
welders with whom he was required to work closely, to his
slacking off, to his poor production, to his inability to read
blueprints, to his failure to perform as a welder after advertising
that skill to induce his hire, and to his refusal to accept respon-
sibility when criticized, were factors in making his 1995 raise
through the grievance process so difficult. All of these prob-
lems continued to persist during his 1997 evaluation period.
While, as the General Counsel argues, Mulroney was not pre-
pared to recommend that Pappas be discharged at the time of
his August 22 resignation from the Respondent, Mulroney, at
the same time, also was not prepared to recommend that Pappas
be advanced. In the “up or out” language of Article XX, a su-
pervisor’s unwillingness to recommend that a trainee be pro-
moted was tantamount to advocating discharge.
Consistent with the above observations concerning Pappas’
job performance, I accept the Respondent’s argument that its
decision to defer Pappas’ evaluation for his next pay raise from
June to the completion of his then-current job had been benefi-
cially intended in order to give him additional time to prove
himself. The evidence puts at issue whether Pappas would have
qualified had he been rated in June. Accordingly, I do not reject
the Respondent’s argument that the postponement of Pappas’
evaluation had been an effort to save his job. As Mulroney
certified, Pappas did have his problems at work and Benning
long had complained to Mulroney about him. Benning began
his September 2 criticism of Pappas before Pappas had men-
tioned the prospect of filing a grievance to him. Without Mul-
roney’s protective mantle and evidence that Pappas had devel-
oped some readiness to accept responsibility for performance
defects called to his attention, it is not clear that Pappas’ griev-
ance, had it been processed through the relevant contractual
procedure, would have been sustained.
What is clear, however, is that the Company, for whatever
reasons, had not responded by utilizing the invoked grievance
procedure in dealing with Pappas. Rather, the record shows that
26 Allegheny Ludlum Corp., 320 NLRB 484 497 (1995), enfd. in
relevant part 104 F.3d 1354 (D.C. Cir. 1997).
27 There is no basis for presuming that, had Pappas been given addi-
tional time to work on the Inland Hood project, he, like other similarly
treated employees described by Steward Benning, would not have
improved his performance sufficiently to receive a favorable evalua-
tion. In any event, his accelerated termination precluded that possibil-
ity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1130
his statement that he would file a grievance, and his actual fil-
ing of same, had promptly triggered his termination. Accord-
ingly, while the Respondent, for reasons set forth above merited
certain equities in this matter, these were outweighed by its
extraordinary and unprecedented reaction to Pappas’ use of the
grievance procedure. The effect of the Respondent’s conduct
was to discourage its employees from making further use of
that contractual process.28
Although Pappas was not an exemplary employee, as in
United States Postal Service,29 and Jersey Central Power &
Light Co.30the Respondent, as noted, had tolerated his work
and, from all pronouncements until then, had been prepared to
defer his evaluation until the completion of his current pro-
ject.31 Even more than in United States Postal Service, supra,
which noted a 1-week period, here, there is no evidence of any
performance–related event during the 2 weeks preceding
Pappas’ discharge that otherwise could have motivated the
Respondent’s action.

28 The Respondent’s failure to timely evaluate other employees, as
well, does not enhance perceptions of a willingness to adhere to its
contractual commitments. In the present matter, contrary to the Re-
spondent, the found violation is not based, without more, on violation
of the collective-bargaining agreement or on contractual dispute, but on
the settled principle that the Board can interpret and resolve contractual
matters incident to unfair labor practice disputes. As the Supreme Court
noted in C & C Plywood, 385 U.S. 421 (1967), “. . . a contractual de-
fense does not divest the Labor Board of jurisdiction.” Nothing in this
decision challenges the Respondent’s discretionary right, recognized by
the Union, to substantively determine the qualifications of it trainees
for promotion or termination under Article XX of the contract. The
finding here simply is that its employees may not be discharged for
pursuing their contractual rights through the grievance procedure.
29 275 NLRB 510, 511 (1985).
30 269 NLRB, supra, at 888. Although the discriminatee in Jersey
Central Power had had a bad attitude towards his employment, the
Respondent in that matter initially had decided to refrain from taking
any action concerning him in the hope that his attitude would improve.
As was there determined, this approach similarly had lasted until that
employee’s subsequent declaration that he was going to file a griev-
ance.
31 Also see Black Magic Resources, 312 NLRB 667, 672 (1993).
For the above reasons, I find that the Respondent violated
Section 8(a)(3) and (1) of the Act by terminating Pappas on
September 17, 1997, because he had expressed his intention on
September 2, to file a grievance, and actually did so on Sep-
tember 8. As noted from above-cited authority, it is not prereq-
uisite to the conclusions reached here that Pappas’ grievance
concerning his pay raise have merit or that his job performance
have been exemplary.
CONCLUSIONS OF LAW
1. The Respondent is, and at all times material here has been,
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is, and at all times material here has been, a la-
bor organization within the meaning of Section 2(5) of the Act.
3. By unlawfully discharging its employee, Christ Pappas,
the Respondent violated Section 8(a)(1) and (3) of the Act
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged Christ
Pappas, it must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a quar-
terly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co.,32 plus interest as computed in New Hori-
zons for the Retarded.33
Additionally, the Respondent should be required to expunge
from its files any reference to Pappas’ discharge and notify him
in writing when this has been done and that the evidence of this
unlawful termination will not be used as a basis for future per-
sonnel actions against him.
[Recommended Order omitted from publication.]
32 90 NLRB 289 (1950).
33 283 NLRB 1173 (1987).