Sioux City Foundry

National Labor Relations Board - Board Decisions

Mar 27, 1979

241 N.L.R.B. 481 (N.L.R.B. 1979)

SIOUX ClI
Sioux City Foundry and District No. 162, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO. Case 17-CA-7927
March 27, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On October 10, 1978, Administrative Law Judge
Phil W. Saunders issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings.' and
conclusions2 of the Administrative Law Judge as
modified herein and to adopt his recommended Or-
der, which has been modified in certain respects.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified and
set out in full below, and hereby orders that the Re-
spondent, Sioux City Foundry, South Sioux City, Ne-
braska, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging employees because another em-
ployee exercised Section 7 rights.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action, which the
Board finds will effectuate the policies of the Act:
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 We add to the Administrative Law Judge's Conclusions of Law the fol-
lowing paragraph, to be inserted after par. 3:
4. The above unfair labor practices are unfair labor practices affect-
ing commerce and the free flow of commerce within the meaning of
Section 2(6) and (7) of the Act.
3 We modify the cease-and-desist provisions to make them consistent with
the specific 8(aXI) violation found. We add a reinstatement order which was
inadvertently omitted from the recommended Order.
FY FOUNDRY 481
(a) Offer Roger Plum and Martin Wermes immedi-
ate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and
make them whole for any loss of pay they may have
suffered by reason of Respondent's unlawful conduct
as outlined in "The Remedy" portion of the Adminis-
trative Law Judge's Decision.
(b) Preserve and, upon request, make available to
the Board or its agents. for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its place of business at South Sioux
City, Nebraska, copies of the attached notice marked
"Appendix."4 Copies of said notice, on forms pro-
vided by the Regional Director for Region 17, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material;
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order.
what steps the Respondent has taken to comply here-
with.
MEMBER JENKINS, concurring:
I agree with my colleagues that Respondent dis-
charged employees Plum and Wermes in violation of
Section 8(a)(1) of the Act.
The theory of the violation advanced by the Gen-
eral Counsel and found by the Administrative Law
Judge is that the discharge resulted from the pro-
tected concerted activity of Boatman, a rejected fe-
male job applicant. As found by the Administrative
Law Judge, Respondent refused to employ Boatman
for the stated reason that as a striker at another com-
pany she was ineligible for hire because of Respon-
dent's policy against hiring temporary employees.
Boatman responded by identifying Respondent's
male employees Plum and Wermes as fellow strikers,
by expressing her belief that Respondent's refusal to
employ her was based on her sex, and by stating that
she would have to file (sex) discrimination charges
(with the Equal Employment Opportunity Commis-
4 In the event that this Order is enforced by a judgment of a United States
Court of Appeals. the words In the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
241 NLRB No. 68
D[)E(ISIONS OF NATIONAL LABOR RELATIONS BOARD
sion or under Respondent's collective-bargaining
agreement). The Administrative Law Judge con-
cluded that Boatman's aforesaid conduct constituted
protected concerted activity and that Respondent's
subsequent investigation and termination of strikers
Plum and Wermes was for the purpose of avoiding or
defending the charges threatened by Boatman.5
I agree with my colleagues and the Administrative
Law Judge that this theory sustains the finding of Re-
spondent's unlawful actions. However, I also think
the foregoing facts reveal that Respondent's dis-
charges of Plum and Wermes were predicated upon
their own protected concerted activities as strikers
and therefore violative of Section 8(a)(1) of the Act,
irrespective of the protected or concerted nature of
Boatman's conduct. Thus, as the Administrative Law
Judge found, Respondent even offered to reemploy
Plum and Wermes if they could obtain "quit" slips
from the struck employer. Moreover, Respondent's
policy, if any, against hiring individuals in striker sta-
tus would also be violative of Section 8(a)(1) of the
Act.
In these circumstances, we need look no further
than the dischargees' protected concerted activities,
i.e., their striking, to establish the unlawfulness of Re-
spondent's actions, and I would so find.
Consistent with his finding that Respondent hired Plum and Wermes
with knowledge that they were strikers at a local company, the Administra-
tive Law Judge rejected as pretextual the reasons which the Respondent
offered for discharging them: namely. that they failed to disclose the fact of
their striker status on their employment applications and because their em-
ployment was contrary to Respondent's policy against hiring strikers or tem-
porary employees.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge employees because
another employee exercised Section 7 rights.
WL WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by Section 7 of
the National Labor Relations Act, as amended.
WE WILL offer Roger Plum and Martin
Wermes immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without
prejudice to their seniority or any other rights or
privileges previously enjoyed, and give them
backpay, plus interest, for any losses they suf-
fered as a result of our discharging them.
SIOUX CITY FOUNDRY
DECISION
STATEMENT OF HE CASE
PIn. W. SAUNDERS, Administrative Law Judge: Based
upon a charge filed on October 18, 1977, by District No.
162, International Association of Machinists and Aero-
space Workers, AFL CIO, herein District 162, a complaint
was issued on December 13, 1977, against Sioux City
Foundry, herein the Respondent, alleging violations of Sec-
tion 8(a)(l) of the National Labor Relations Act, as
amended. Respondent filed an answer to the complaint de-
nying it had engaged in the alleged violations. Both the
Respondent and the General Counsel filed briefs.
Upon the record in the case, and from my observation of
the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent is a corporation organized and existing un-
der the laws of Iowa, and is engaged in the production of
iron casting at a foundry located at South Sioux City, Ne-
braska. The Respondent, in the course and conduct of its
business operations within the State of Nebraska, annually
purchases goods and services valued in excess of $50,000
directly from sources located outside the State of Nebraska
and annually sells goods and services valued in excess of
$50,000 directly to customers located outside the State of
Nebraska.
The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
1. THE LABOR ORGANIZATION INVOLVED
District 162 is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
It is alleged in the amended complaint that on or about
September 29, 1977, the Respondent discharged employees
Roger Plum and Martin Wermes because of its employees'
protected concerted activity within the meaning of Section
8(a)( ) of the Act.
The theory advanced by the General Counsel is that
Wermes and Plum were discharged by the Respondent be-
cause of the protected concerted activity of a third individ-
ual, Marietta Boatman, in violation of Section 8(a)(l) of the
Act. It appears from this record that Wermes, Plum, and
Marietta Boatman were all out on strike against Wilson
Trailer Company during August and September 1977, but
all three of them applied for employment at the Respon-
dent in August and/or September 1977, and the two men
were hired, but the woman, Marietta Boatman, was refused
employment. The General Counsel contends that the Re-
spondent initially gave other reasons for not hiring her, but
that management finally informed Marietta Boatman that
she would not be hired because the Respondent had a pol-
icy against hiring strikers because they were viewed as tem-
482
SIOUX CITY FOUNDRY
porary employees. The General Counsel further points out
and argues that after three employment interviews. all to no
avail, and during a period when the Respondent hired nu-
merous men, including others out on strike, Marietta Boat-
man then threatened the Respondent with filing a sex dis-
crimination charge against them, and, in efforts to ward off
and defend against such a charge, the Respondent termi-
nated the employment of Roger Plum and Martin Wermes.
It is the position of the General Counsel that an employer
may not fire its employees because an applicant has threat-
ened to file discrimination charges, that such action consti-
tutes a violation of Section 8(a)(l) of the Act, and that em-
ployees Wermes and Plum should be made whole for any
loss thereby suffered.
This record shows that Plum, Wermes., and Marietta
Boatman were employed by Wilson Trailer Company at
the end of July 1977, when the employees at Wilson Trailer
went out on strike.' In early July 1977. in anticipation of the
strike at Wilson, Curtis Boatman, who was an employee of
the Respondent and husband of Marietta, asked Russell
Clingenpeel. the Respondent's plant superintendent, if he
would consider hiring his wife. Clingenpeel's reply was,
"No, we are trying to get away from hiring women." Fol-
lowing this initial contact, Marietta Boatman then went to
the plant herself and applied for a job with the Respondent
in mid-August 1977 and, after filling out an application,
spoke to Respondent's office manager, Lavern Erickson. On
this occasion, Erickson inquired if she was still on strike
from Wilson Trailer and her reply was in the affirmative,
but nevertheless Erickson told Marietta Boatman that he
would keep her in mind as there were no openings then
available. A few weeks later she returned to the foundry. as
her husband had stated that there were job openings, and
spoke to Office Manager Erickson, but again Erickson told
her that there were no jobs and the people he had hired
filed their applications before she had. On the third occa-
sion when Marietta Boatman returned to the foundry, in
mid-September 1977, Erickson told her that Superintendent
Clingenpeel had informed him that management would not
consider her for employment because she was a temporary
employee due to the fact that she was out on strike from
Wilson Trailer. Erickson admitted that at this time the Re-
spondent did have a job opening. Marietta Boatman again
returned to the plant on September 29. 1977. and this time
talked with Superintendent Clingenpeel. After Boatman af-
firmed that she was still on strike from Wilson Trailer. Clin-
genpeel then informed her that they were not hiring tempo-
rary people on strike, or people who were on another
company's payroll. The two then discussed whether or not
she could handle the hard work involved in the foundry,
but she gave assurances that she could perform satisfacto-
rily. Near the conclusion of their conversation. Marietta
Boatman told Clingenpeel of the two employees working
for the foundry-Plum and Wermes who were out on
I District 162, the Charging Party herein, represents certain employees at
Wilson Trailer. The unit employees at the foundry are represented bh Local
391 of the International Molders and Allied Workers Union. AFL CIO-
CLC, herein referred to as the Molders. The collective-bargaining agreement
between the Respondent and the Molders states in art. V as follows:
There will he no discrimination in the hiring of employees b) either
party under this agreement because of race, creed, color. religious he-
liefs. nationality, age or sex.
strike from Wilson Trailer.2 Boatman also informed him
that if she was not hired she would file "discrimination
charges" because the Respondent's refusal to hire her was
based on the fact that she was a female. Subsequently,
Boatman did file a charge with EEOC and also a similar
charge with the State of Nebraska.
After Marietta Boatman revealed the names of the two
fellow strikers working at the foundry, an investigation was
ordered. Clingenpeel testified that the investigation in-
volved checking the applications of those employees who
were hired by the Respondent since February 1977. the
time at which major strikes commenced in the general area,
and in accordance therewith previous employers were then
contacted to determine the status of their employees. Clin-
genpeel stated that his investigation indicated that Wermes
and Plum were at the time the employees of Wilson Trailer.
although on strike, and also that Marvin Hall was found to
be an employee of Iowa Beef Processors. Inc., another local
employer whose employees were on strike. All three em-
ployees' applications for employment with the Respondent
were then reviewed, but, according to Clingenpeel, none of
the applications indicated that the three employees here in-
volved were strikers and seeking only temporary employ-
ment until their respective disputes were settled. Clingen-
peel testified that these falsifications also led to the
dismissals of Plum, Wermes, and Hall.
Plum's job application with the Respondent, dated Au-
gust 23, 1977, notes that he worked at Wilson Trailer from
"'74 to '77," and in the space provided for the applicant to
give the reason for leaving, Plum's application from states:
"Better Job." The job application Wermes filled out for the
Respondent on September 9, 1977, noted that he worked at
Wilson Trailer, but he left blank the dates, including the
duration of his employment. He gave as the reason for leav-
ing Wilson Trailer, "Sold Home and Business in June. Was
going to move to California." It is undisputed that in spite
of what was written on the application forms, both Wermes
and Plum were still employees at Wilson Trailer.
It appears that when Wermes filed his application he also
talked with Office Manager Erickson and at this time was
asked if he was out on strike, and Wermes replied that he
was but then informed Erickson that he was interested in a
permanent position to better himself. Clingenpeel then also
inquired about the strike at Wilson Trailer, and Wermes
replied that he was interested in obtaining possibly a better
position if he could work into it.
The credited evidence also shows that after Plum started
working at the foundry, Respondent's production manager,
Tom Tullis, inquired of Plum on several occasions if he
would be returning to Wilson Trailer when their strike was
over. Plum informed Tullis that he did not believe he
would. There is also credited testimony by Plum that on or
about September 27, 1977, Tullis told him that manage-
ment was having some trouble with a "girl from Wilson
Trailer" who wanted a job and "that they did not really
2 Roger Plum, who did not apply but rather learned of the job through his
cousin. was hired by the Respondent on August 22. 1977 Martin Wermes.
another striker from Wilson, walked in on September 7, 1977, and applied.
and was working for the Respondent the next day. According to La.ern
Erickson, office manager for the Respondent. who screens applicants in the
hiring proess, somewhere from 6 to 10 men were hired In September 1977
alone.
483
I)(FCISIONS OF NATIONAL LABOR RELATIONS BOARD
want to hire her." I he above testimony attributed to Man-
ager ullis stands undenied on this record, as Tullis did not
testitv.
[he Respondent maintains that upon their discovering
the falsification of the application forms-Plum, Wermes.
and Hall were summoned to the office for dismissal. Clin-
genpeel testitfied that he told them about his information
from "a female." and that an investigation had been con-
ducted which had resealed that the three of them were
strikers. Ie stated that he also told them they had falsified
their application forms.3
Wermes, in contrast, testified that at the time of their
discharge on September 29. 1977, ('lingenpeel told them he
did not know they were strikers: that "a female" had been
in earlier and had raised "a little cane" and had threatened
"to file discrimination charges" because she wanted to
work, but that management would rather not have any
women working in the plant: and, at the conclusion of his
remarks, that the Respondent was going to discharge them
because thev were strikers and it was the Respondent's pol-
icy not to hire strikers.
Plum corroborated the credited testimony of Wermes by
stating that on September 29, 1977. Clingenpeel told the
three of them that "a girl" from Wilson Trailer was trying
to get a job with the Respondent but that the Respondent
did not "really 'want to hire a girl to work there." Clingen-
peel then also told them that management had "found out"
that they were on strike, that it was their policy not to hire
strikers. and that therefore he would have to discharge
them.
The Respondent argues that Marietta Boatman was de-
nied employment on the basis that management only
sought to hire permanent employees and that because she
was on strike at another company she was not considered to
be an applicant for a permanent position. Moreover. her
assertion that the refusal of employment was based on her
sex and not on her strike status prompted an investigation
which disclosed that there were three such employees, each
of whom had falsified their employment applications by
disguising the fact that they were still on some other com-
pany's payroll. Thus, argues the Respondent, all three em-
ployees were promptly discharged. The Respondent further
contends that the concerted activity did not consist of mu-
tual activities in concert with others-rather it consisted
solely of Boatman's comments to management that their
refusal to hire her was because she was a woman and that
she was going to have to file sex discrimination charges;
moreover, that Marietta Boatman was not acting to assert
the provisions of a collective-bargaining agreement govern-
ing her and her fellow employees. as she was never em-
ployed by the Respondent, that the alleged discriminatees
herein were not acting to assert the provisions of the con-
tract, as they never took any action of any kind, and that
Boatman was not acting to assert any statutory rights for
the benefit of herself or an, of her fellow employees. In
concluding, the Respondent again maintains that Plum and
Wermes were discharged for falsifying their employment
Assitant Superintenden Craig Pitts testified that Clingenpeel informed
the three men that he had "a female" applicant who was a striker, and
becaulse of this fact, he could noti accept her as it was against the policy of'
rilil.llgelllent to hire tcmporar enploiiees
application forms and in so doing not disclosing that they
were striking employees of another employer; that this sub-
terfuge allowed then to gain temporary employment with
the Respondent until their strike was settled; but that if the
truth had been revealed they would not have been em-
ployed, pursuant to the Respondent's policy in refusing to
hire temporary employees. In essence, argues the Respon-
dent, the discharge of Plum and Wermes had nothing to do
with any activities Marietta Boatman might have engaged
in.
Final Conclusions
In the instant case, on her third interview, as aforestated,
Boatman was told that she could not be employed because
of a policy of the Respondent against hiring temporary em-
ployees. I am in agreement with the General Counsel that
the alleged "policy" against hiring temporary employees,
such as strikers from other employers, is a mere pretext
conceived to avoid hiring a woman. As pointed out, this
"policy" is not written down anywhere, there are no indica-
tions that employees were aware of it, and there was no
evidence that any applicant, other than Marietta Boatman,
has ever been told about it. As indicated, the Respondent
also failed to present any valid rationale for such a policy,
and high turnover appears to be a fact of life in the foundry
business. In fact, Clingenpeel admitted that foundry jobs
are strenuous and dirty and that in this type of business it is
getting progressively more difficult to hire people to do such
work. Manager Erickson admitted that 6 to 10 people were
hired in September 1977 alone and that although he did not
know precisely how many have been hired from August
1977 through March 1978, he was certain that it was more
than a dozen. Admittedly, these were replacements for peo-
ple who quit and had to be replaced. The Respondent also
introduced into this record a seniority list for the month of
December 1977. The General Counsel maintains that only
one conclusion can be drawn from examination of this
list that the Respondent has a high turnover rate. It is
pointed out that this seniority list shows that 15 people were
hired in the latter part of 1977 out of a total of 47 positions.
In its argument the General Counsel reasons that in light
of the fact that employee turnover is high, there appears to
be no basis for refusing to hire strikers from other employ-
ers, and moreover that this record shows that the Iowa Beef
Processors strike began on or about February 26, 1977, was
continuing in August or September 1977, 7 months later,
and was still continuing at the date of the hearing in this
case-March 22, 1978; that the strike at Wilson Trailer be-
gan on July 22, 1977, and ended in mid-December 1977, 6
months after it began; and that Manager John Plesher and
Clingenpeel both testified that they were aware of the strike
in the Sioux City area and therefore must have had some
knowledge as to how long a strike can last. From these
circumstances, the General Counsel argues that people
hired at the beginning of the Iowa Beef Processors' strike
would have had seniority over about one-third of the Re-
spondent's work force by December 1977 and that the strik-
ers from Wilson Trailer would likewise have considerable
seniority. The facts in evidence, as further argued, suggest
that the strikers employed for the duration of strikes in
question would generally be no more "temporary" than a
484
SIOUX CITY I
large proportion of the Respodent's work force and, in fact,
might even have more longevity than most of it.
In the final analysis, no valid rationale has been adduced
to support a policy against hiring strikers from other em-
ployers, nor have any valid reasons been advanced for not
hiring women. This record shows that at present the Re-
spondent employs no females in unit work, although fe-
males have applied for such work; an agent or supervisor of
the Respondent stated that management wants to get away
from hiring women; a qualified woman applied for work
when jobs were available: the Respondent knows it is illegal
to discriminate on the basis of sex, and then attempts to
find some other reason to refuse her employment, seizing on
its alleged policy against hiring temporary employees. As
further indicated, it was only when Marietta Boatman
threatened to file sex discrimination charges against the Re-
spondent that management attempted to salvage its posi-
tion-deciding it had no alternative other than to fire Plum
and Wermes. Marietta Boatman threatened to file charges
on the morning of September 29, 1977, as aforestated. and
on the afternoon of September 29. 1977, Plum and Wermes
were fired.'
By the evidence in this record, the Respondent knew that
Plum and Wermes were on strike from Wilson Trailer when
they hired them. Wermes had interviews with Clingenpeel
and Erickson in which the strike at Wilson Trailer was dis-
cussed, Wermes taking the position that he was not certain
as to whether he would return or not, as aforestated.'
Plum's testimony to the effect that the Respondent knew all
along he was on strike is not contradicted. On several occa-
sions during September 1977, his foreman, Tom Tullis,
asked Plum if he was going to go back to Wilson Trailer
when the strike was over, as set forth previously herein.
There was also some testimony presented that Plum filled
out one application stating that he worked at Wilson
Trailer but was then asked to fill out a second application.
On direct examination, Plum testified that he did note on
his first application that he was on strike from Wilson
'The third individual involved in the discharges, Marvin Hall, could not
be located by General Counsel and is not named in the complaint. More-
over. Respondent's explanation of how it discovered that Hall was a striker
from Iowa Beef is also somewhat confusing. Ai the hearing before me. Clin-
genpeel testified that he consulted the seniority list and then called employers
who had been struck. However, this testimony is not consistent with the
information on Marvin Hall's employment application. This application was
dated 4/18/77 and lists two previous employers, Butts Construction and
Wilson Trailer. If hired in April 1977. Hall was hired before the Wilson
Trailer strike began, and there would have been no reason to check with
Wilson Trailer. Moreover, Hall's application does not list Iowa Beef Proces-
sors as an employer.
5 Clingenpeel's version of this conversation is both inconsistent and contra-
dictory. Clingenpeel stated that the Respondent has a policy against hiring
temporary employees. but the credited evidence shows that he knew Wermes
had worked at Wilson Trailer. and Clingenpeel admitted that he knew that
Wilson Trailer was on strike. Yet, in spite of all this, Clingenpeel maintains
that at the time of hiring he did not ask whether Wermes was on strike
against Wilson Trailer and that hejust assumed from the general tenor of the
interview that Wernmes had quit his job at Wilson Trailer. Clingenpeel's
explanation for this dilemma is that on Wermes' job application form a
notation appears in the square provided to describe "previous work experi-
ence-reason for leaving," which Wermes filled in stating "sold home and
business in June. Was going to move to Calif." According to Clingenpeel.
this reply on his application form was relied upon to satisfy their policy
against hiring temporary employees. I am in agreement that it strains the
bounds of reason to believe that if the Respondent did have a policy against
hiring temporary employees and enforces it on a uniform basis Clingenpeel.
on the occasion in question, would not have attempted to clarify the matter.
485
Trailer. but Manager Tullis brought his application back
and told him he should have put on the application that he
quit Wilson Trailer before their strike started and asked
him to fill out another application. In response to questions
on cross-examination, Plum stated that on his first applica-
tion he did say something about the strike at Wilson
Trailer; he said, "Left because of strike," but after addi-
tional questioning, Plum stated he really did not recall pre-
cisely what he put on his first application. However, as
pointed out, the fact remains that Plum filled out one appli-
cation and Tullis brought it back to him 2 weeks later and
asked that a new one be made out relating to quitting be-
fore the strike at Wilson Trailer; but Plum's testimony that
he was asked to change his application with regard to this
matter was not shaken. As indicated, it is likely that Plum's
testimony with regard to being asked to change an explicit
statement that he left because of the strike is true. Other-
wise, there is no explanation for his being asked to fill out a
second application. It is also significant to note that Tullis
was not called as a witness to clarify the matter.
One of the reasons given by the Company for instituting
a policy of avoiding temporary employees was that it is
quite an expense to train people. Curt Boatman, an em-
ployee of the Company for almost 5 years, testified that he
has held three different jobs and described the training nec-
essary for each. With regard to two out of three, he just
"took it up and learned it on the job ... as far as anybody
teaching you, you just got up and done it mostly." As fur-
ther detailed, on the third job, he had someone work with
him for approximately 2 weeks. The Respondent presented
no evidence that this was not typical of the training re-
quired, and this record shows that neither Plum nor
Wermes required any training and were productive employ-
ees right from the start. Clingenpeel even admitted that
Wermes was a productive employee. Moreover, this record
also shows that Marietta Boatman had welding experience,
and the Respondent failed to demonstrate that any more
training would have been required for her.
The Respondent also contends that Plum and Wermes
were discharged because they falsified their employment
applications, as aforestated. However, every witness who
testified about this particular matter stated that Plum and
Wermes were told by management that if they were able to
get a quit slip from their other employer, Wilson Trailer,
they could then stay on the job with the Respondent. As
suggested by the General Counsel, if the Respondent had
really been concerned with the so-called falsification of the
applications, management, in all likelihood, would not have
offered to keep the "offenders" on as if nothing had hap-
pened. The only explanation consistent with all of the facts
and circumstances is that the Respondent reacted as it did
because the two employees involved herein had been hired
by the Respondent as known strikers from Wilson Trailer,
the same situation Marietta Boatman was in, and that in
order to escape discrimination charges by Boatman Re-
spondent had to use the pretext that they did not hire tem-
porary people or strikers, and as a result discharged
Wermes and Plum to cover their inconsistent positions.
The Board in Interhoro Contractors, Inc., 157 NLRB
1295 (1966), enfd. 388 F.2d 495 (2d Cir. 1967), held that
activity engaged in by an individual employee acting alone
which was directed to enforce or implement the terms of a
I)F ('ISIONS OF NATIONAI I.ABOR REIATIONS BOARD
collective-bargailinng agreement will be deemed concerted
acttvit within the meaning of Section 7 of the Act. In
AIllelui (.ti0on Co.. I'., 221 NLRB 999 (1975). the Board
extended the Interhoro rule to situations where no union or
collective-bargaining contract was in existence.
As pointed out, by complaining or threatening to file a
sex discrimination charge. Marietta Boatman attempted, as
it turned out, to enlforce a provision in the collective-bar-
gaining agreement between the Molders and the Respon-
dent. arrived at through their contract negotiations, as
aforestated. Moreover. it is clear that the Board has inter-
preted similar complaints to enforce a collective-bargaining
agreement and that even if such action is taken by only one
individual it still constitutes protected concerted activity.
As stated in the Board's decision in King Soopers, Inc., 222
NLRB 1011. 1018 (1976):
King Soopers contends, however, that Gonzales'
complaint to ('C('R(' and EEOC is not conduct pro-
tected under the Act. Specifically, King Soopers argues
that it does not constitute concerted activity since
Gonzales was acting alone. Contrary to Respondent's
argument. I find that by complaining to CCRC and
EEO(' Gonzales was engaged in protected concerted
activities. The collective-bargaining agreement pro-
vides that the Employer and the Union will fully com-
ply with the applicable laws and regulations regarding
discrimination against any employee because of, inter
alia. such person's race, color, or national origin. By
complaining to ('CRC and EEOC Gonzales was in-
sisting upon his rights under the collective-bargaining
agreement. It is well established that by attempting to
enforce contractual provisions, an employee is acting
not only in his own interest but in the interest of all
employees covered under the collective-bargaining
agreement. and that such actions are an extension of
the concerted activity giving rise to the agreement. See
Roadwiy Express, Inc., 217 NLRB 278 (1975); Gray-
Burke Companv, 208 NLRB 708 (1974); H.O. Seiffert
Compnarnl 199 NLRB 960 (1972); C & I Air Condition-
ing, Inc., 193 N I.R B 911 ( 1971 ); Interboro Contractors,
Inc.. 157 N IRB 1295 (1966); Merl'n Bunneiy and Clar-
ence Bunnley Partners, dh/a Bunnel' Bros. Construc-
tion Companv, 139 NLRB 1516 (1962).
I also find without merit Respondent Employer's ar-
gument that even assuming that Gonzales was dis-
charged for filing charges with CCRC and EEOC his
remedy would be through Title VII of' the Civil Rights
Act of 1964, not Section 8(a)(1) of the Act....
The Eighth Circuit had occasion to state in N.I..R.B. v.
Selwivn Shoe Mainufileluring Corporation, 428 F.2d 217. 221
(8th Cir. 1970):
We think it obvious that rights secured by . . . [a collec-
tive-bargaining] agreement, though personal to each
employee, are protected rights under Section 7 of the
Act because the collective-bargaining agreement is the
result of concerted activities by the employees for their
mutual aid and protection.
t It has, ot couse. been well established by the Board and the courts that
an applicant Ior eriployment here Marietta Boatman is an employee
within the meaning of the Act.
In B & P Motor Ex.rpress, nc., 230 NLRB 653 (1977), an
employee was fired because he threatened to make safety
complaints to a govenment agency. The Board found that
making such complaints, particularly when the matters are
embodied in a collective-bargaining agreement, is protected
concerted activity. Furthermore, the reason for the dis-
charge was rejected by the Board as a pretext and the true
reason divined partially from the timing was that the
employee involved was the first one to make such a threat
to the employer and was fired soon after his threat was
made. In the instant case, we have two employees fired
because another employee threatened to file sex discrimina-
tion charges, thereby enforcing a provision of the collective-
bargaining agreement which was the result of the concerted
activity of the employees of the Respondent.
In Alleluia Cushion Company, Inc., supra, the Board was
faced with a case in which a single employee, acting alone,
filed charges with the Occupational Safety and Health Ad-
ministration and was terminated for such action. The Board
found that safe working conditions, protected by OSHA,
are matters of great and continuing concern, related to im-
portant conditions of employment. As noted in Dawson
Cabinet Conpanv, Inc., 228 NLRB 290 (1977), the Board
has also held that an individual who protests an employer's
noncompliance with a federal statute "is engaged in con-
certed activity for the mutual aid and protection of the em-
ployer's employees similarly situated." G. V.R., Inc., 201
NLRB 147 (1973).'
While the Interboro rule, as previously discussed herein,
has been rejected by two or three circuit courts, the Board
law is clear-an individual who attempts to enforce a con-
tract provision, even though acting alone, is engaged in pro-
tected concerted activity, and a discharge as a result of such
activity has been uniformly held by the Board to be a viola-
tion of 8(a)( 1).
Marietta Boatman was engaged in protected concerted
activity when she threatened to file sex discrimination
charges against the Respondent. and the reaction by the
Respondent thereafter was a continued retaliation and the
significant and overriding factor, or the casual connection,
in the discharge of Wermes and Plum. The record is replete
with substantial and credible evidence in support thereof.8
iv. ' lil RilMFDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It having been found that the Respondent discriminator-
ily discharged Roger Plum and Martin Wermes, I shall rec-
ommend that Respondent offer them immediate and full
reinstatement to their former jobs or, if such jobs no longer
See also Air Surrey Corporation, 229 NLRB 1064 1977): Supreme Optical
('ompanv, Inc., 235 NLRB 1432 (1978): and Pink Moody. Inc. 237 NLRB
39 (1978).
8 The credibility resolutions herein have been denved for the reasons given
and from a review of the entire testimonial record and exhibits with due
regard Ir the logic of probability, the demeanor of the witnesses, and the
teaching of '. L.R.B. v. Walton Manufacuring (Companv & oganville Pants
Co.. 369 U.S. 404 (1962). All testimony has been reviewed and weighed in
the light of the entire record.
48(
SIOUX CITY FOUNDRY
exist, to substantially equivalent positions. without preju-
dice to their seniority or other rights and privileges. and
make them whole for any loss of earnings they may have
suffered by payment to them of the amount they normally
would have earned as wages from the date of their termina-
tion to the date of an offer of reinstatement. Backpay shall
be computed on a quarterly basis in the manner established
by the Board in F W. Woolworth Companv, 90 NLRB 289.
291-294 (1950). and with interest thereon computed in the
manner and amount prescribed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977).?
9
See. generally, Iis Plumbing & Heating Co, 138 NI.R 716 (1962).
CON(LUSIONS O1F LAWN
1. The Respondent is an employer engaged in commerce
within the meaning of Section 26) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. B engaging in the conduct described in section Ill.
above. Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)( I ) o't the
Act.
[Recommended Order omitted fronl publicalltiln.
487