Waco Insulation, Inc.

National Labor Relations Board - Board Decisions

May 17, 1976

223 N.L.R.B. 1486 (N.L.R.B. 1976)

1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Waco Insulation , Inc. and Douglas Rexrode and Paul
Kuykendall . Cases 5-CA-7413 and 5-CA-7417
- May 17, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On January 19, 1976, Administrative Law Judge
Karl H. Buschmann issued the attached Decision in
this proceeding. Thereafter, the Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith.
The Administrative Law Judge found that Doug-
las Rexrode was discharged for engaging in protected
concerted activity in violation of Section 8(a)(1). We
agree.' He further found, however, that the discharge
of Paul Kuykendall under similar circumstances did
not violate Section 8(a)(1); the General Counsel ex-
cepts. We find his exceptions meritorious.
Kuykendall was hired on May 2, 1975,2 as a rigger
or rigger's helper. During his second week while as-
signed to a rigging crew, he was reprimanded for im-
properly rigging a hoist. About June 1, 1975, he was
transferred to a general labor crew. Although Fore-
man Junkins initially testified the transfer was a de-
motion, he later admitted that the reason for the
transfer was simply that there was no more rigging
work available.
When Kuykendall went on the labor crew he was
promised he would be returned to rigging work as it
became available; on the labor crew he received the
rigger's rate of pay. Kuykendall testified that while
on the labor crew he had complained frequently
about the work, primarily because he had been hired
as a rigger and wanted to do rigging work. Nonethe-
less, Kuykendall did not perform up to the labor
crew foreman's expectations and sometime just prior
to July 1, 1975, Belanich, Respondent's field superin-
tendent, called him into his office and talked to him
about his poor performance.
1 In so finding we disavow the Administrative Law Judge's gratuitous
comment that Rexrode's request or demand for more money after only 2
weeks on the Job was unreasonable
2 Unless otherwise noted all dates are 1975
Shortly thereafter (about July 1), Kuykendall was
returned to rigging work. The Administrative Law
Judge found that Kuykendall experienced problems
doing his job after July 1; however, that finding is
based on one incident only, which occurred shortly
after July 1 when a buck hoist which Kuykendall
helped rig fell. Belanich, who was passing by, told
Kuykendall it should not have happened. It should
be noted, however, that Kuykendall was only part of
the crew that rigged the hoist. In fact, Belanich and
General Foreman Junkins testified that employees
other than Kuykendall might well have been respon-
sible for the error.
There had been no complaints about Kuykendall's
work since about July 1, when on July 15, Kuyken-
dall asked Junkins for a raise . The next day Kuyken-
dall met with Rexrode and the other employees who
gathered in the break area, and decided he would
join them in demanding more money. Kuykendall
was with the employees when they confronted Fore-
man Talbott. Talbott told the employees including
Kuykendall that they had been doing a good job,
that he had their names on his list, that they de-
served raises, and that he intended to put them in for
raises. Rexrode said they wanted an immediate an-
swer, whereupon, Talbott said he would get Belanich,
and give the employees the option of returning to
work or waiting for Belanich in the lunchroom.
Kuykendall returned to work after Talbott assured
him he would call him when Belanich arrived to talk
to the employees. Talbott did not call Kuykendall,
however, and he therefore missed the employees'
confrontation with Belanich which led to Rexrode's
discharge.
The next day, July 17, Kuykendall again asked
Talbott about a raise. Talbott told Kuykendall to
"keep cool" for a few weeks as Belanich was "still
upset from the day before." Talbott later told Bela-
nich that Kuykendall had requested more money. As
found by the Administrative Law Judge:
Belanich then called [Kuykendall] to his office
and inquired what his problem was. Kuykendall
replied, "The only problem I had was the prob-
lem with the money." Belanich them [sic] re-
minded him that he heard about his "talking to
a few of the guys trying to start trouble again,"
whereupon Kuykendall admitted to having
talked to a fellow employee about the firing of
Douglas Rexrode.
Belanich then proceeded to prepare Kuykendall's
final check and told him he was fired. The above-
credited version of the discharge came from
Kuykendall's testimony. Kuykendall also testified
Belanich first mentioned that he heard Kuykendall
223 NLRB No. 219
WACO INSULATION 1487
had been talking about Rexrode's discharge and then
told him that the reason Rexrode was fired was none
of his business.
Belanich by his own admission would not have ter-
minated Kuykendall for his earlier job deficiencies.
Kuykendall's last alleged work mishap occurred
about 2 weeks before his discharge. Furthermore,
Kuykendall was not told he was being discharged for
his allegedly poor performance record. According to
Belanich "something happened" on July 17 which
caused Kuykendall's discharge in the middle of a
work shift. Although Belanich would not concede
that Kuykendall's request for a raise triggered the
discharge, he did admit that if Kuykendall had not
asked for a raise he did not know whether Kuyken-
dall would still be employed.
The Administrative Law Judge found that Kuy-
kendall was fired because "he . . . asked for more
money, had complained about working conditions
and had a poor performance record." The Adminis-
trative Law Judge then noted that the only real issue
is whether Kuykendall was engaged in protected
concerted activity. While finding it close factually, he
answered the question in the negative primarily be-
cause he felt that in spite of the fact that Kuykendall
joined with the other employees on July 16, he was
acting for himself. He also noted that Kuykendall
was not with the other employees when they con-
fronted Belanich on July 16.
The Administrative Law Judge found the record
was clear that Kuykendall was discharged because he
asked for more money and complained about the
working conditions and had a poor performance rec-
ord. Yet according to Belanich's admissions Kuyken-
dall was not terminated for his allegedly poor work
performance. In fact, that subject was not mentioned
at the termination interview. Belanich only men-
tioned Kuykendall's poor work performance in con-
nection with the fact that it upset him that someone
he had talked to about his performance would have
the audacity to request a raise.
In sum , Kuykendall was fired because he request-
ed more money, had spoken with his fellow employ-
ees about the discharge of Rexrode, was "trying to
start trouble again," and seemed dissatisfied with his
working conditions. Talbott had just warned Kuy-
kendall to "keep cool" about a pay raise because Be-
lanich was still upset about the pay raise request of
July 16, which led to Rexrode's discharge. Thus, like
Rexrode, Kuykendall was fired for requesting a pay
raise or "trying to start trouble again."
The only issue is whether Kuykendall was engaged
in protected concerted activity. In our opinion, it is
clear that he was. Kuykendall had joined with the
employees who gathered to complain to Belanich on
July 16 and was with the group when it confronted
Talbott. It was only because Talbott did not, as he
said he would, call Kuykendall upon Belanich's ar-
rival that Kuykendall did not also confront Belanich.
On July 17, Kuykendall was merely pursuing the
course of action initiated by the employees he joined
with the day before. Concerted activity exists when
an employee's complaints and dissatisfaction are di-
rected to employment conditions of concern to other
employees. Kuykendall was also discharged because
he was discussing, the firing of Rexrode with other
employees and "talking to a. few of the guys trying to
start trouble again." Protesting a fellow employee's
discharge is also protected concerted activity. It is
clear not only that Kuykendall was engaged in con-
certed activity but also that Belanich thought he was
engaged in concerted activity. In sum, no matter
what Kuykendall's past failings, but for his protected
concerted activity in requesting a raise and "trying to
start trouble again," he would not have been dis-
charged. Accordingly we find Kuykendall's dis-
charge, like Rexrode's, violated Section 8(a)(1) of the
Act.
ADDITIONAL CONCLUSION OF LAW
By discharging Paul Kuykendall for engaging in
protected concerted activity, Respondent has violat-
ed Section 8(a)(1) of the Act.
THE REMEDY
The Administrative Law Judge did not order rein-
statement for Rexrode because he found the record
shows Rexrode and Kuykendall had been offered re-
instatement by Respondent, actually returned to
work, and then voluntarily quit. The General Coun-
sel excepts to this finding. We agree with the General
Counsel. At the hearing the Administrative Law
Judge allowed Respondent's President Walker to tes-
tify that Respondent sent Rexrode and Kuykendall
telegrams offering them reinstatement. This evidence
was allowed in over the General Counsel's objection
that it was irrelevant to the issue being tried and was
properly a matter for compliance. The Administra-
tive Law Judge on the record appeared quite uncer-
tain as to whether he should have let the evidence in.
Walker did not know the date the telegrams were
sent nor did he testify as to their wording except in
very general terms. The telegrams were not offered
into evidence and are not part of the record. The
only other testimony on this subject was given by
Rexrode while he was being examined by the Admin-
istrative Law Judge who asked if he had been re-
hired. Rexrode said only that he had been reinstated
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at one time. There was no testimony as to when, why,
or the conditions of reinstatement. When the Gener-
al Counsel objected to that line of questioning on the
grounds that what happened after the discharge was
irrelevant, the Administrative Law Judge said "all
right" apparently in agreement, and pursued a differ-
ent line of questioning. Kuykendall was not ques-
tioned on the subject of reinstatement.
We do not believe there is enough record evidence
to find Respondent made unconditional offers of re-
instatement to Rexrode or to Kuykendall. For this
reason we shall, as is customary, order that Rexrode
and Kuykendall be reinstated 3 to their former posi-
tions or, if those jobs no longer exist, to substantially
equivalent positions without prejudice to their senior-
ity or other rights and privileges. We shall also order
that they be made whole for any loss of earnings they
may have suffered by payment to them of the
amount they normally would have received as wages
from the date of termination to the date of an offer
of reinstatement , less net earnings . Backpay shall be
computed in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289 (1950), plus interest at
the rate of 6 percent per annum, as set forth in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Waco Insulation, Inc., Richmond, Virginia, its offi-
cers , agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating
against any of its employees for engaging in protect-
ed concerted activities for the purpose of obtaining a
pay raise or for other mutual aid and protection.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, as amended 4
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer Douglas Rexrode and Paul Kuykendall
immediate and full reinstatement to their former po-
sitions or, if those positions no longer exist, to sub-
stantially equivalent positions without prejudice to
their seniority or other rights and privileges and
make them whole for any loss of earnings they. may
have suffered as a result of their discharge by Re-
3 Whether . in fact . Rexrode and Kuykendall were made and accepted
unconditional offers of reinstatement will be readily ascertainable in the
compliance stage of this proceeding.
4We agree with the General Counsel that the Respondent 's unfair labor
practices herein go to the very heart of the Act , and require a broad order.
See SkrI Die Casting. Inc.. 222 NLRB 85 (1976).
spondent in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all 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 Mount Storm,
West Virginia, and Richmond, Virginia, copies of the
attached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional Director
for Region 5, after being duly signed by Re-
spondent's representative, shall be posted by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
5In 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we have violated the law
and has ordered us to post this notice.
WE WILL NOT interfere with, restrain, or coerce
our employees by discharging them for engaging
in the protected concerted activity of requesting
a wage increase or for engaging in other mutual
aid and protection.
WE WILL offer Douglas Rexrode and Paul
Kuykendall reinstatement to their former posi-
tions or, if those positions no longer exist, to
substantially equivalent positions without preju-
dice to their seniority or other rights and privi-
leges.
WE WILL make Douglas Rexrode and Paul
Kuykendall whole for any loss of earnings they
may have suffered as a result of our unlawful
action against them.
WACO INSULATION 1489
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the
exercise of rights guaranteed them by Section 7
of the National Labor Relations Act, as amend-
ed.
WACO INSULATION, INC.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN , Administrative Law Judge: This
case arises upon a complaint issued September 12, 1975,
and amended October 10, 1975, by the National Labor
Relations Board alleging that Waco Insulation, Inc.
(Waco) had violated Section 8(a)(1) of the National Labor
Relations Act, as amended, by discharging two of its em-
ployees for having engaged in protected concerted activi-
ties . In its answer filed on October 6, 1975, Waco admitted
all jurisdictional and certain other allegations in the com-
plaint, but denied all allegations that it had committed any
unfair labor practices.
The case was heard before me on November 11, 1975, in
Moorefield, West Virginia. The General Counsel and Re-
spondent were represented by counsel and afforded full
opportunity to adduce evidence, to call, to examine and
cross-examine witnesses , to make oral argument, and to file
briefs. Based on the entire record in the case, including
briefs of counsel , and from my observation of the witness-
es, I make the following findings of fact and conclusions of
law.
FINDINGS OF FACT
The Respondent, Waco Insulation, Inc., is a Virginia
corporation engaged in the general contracting and insula-
tion business. The alleged unfair labor practices occurred
in the late spring and early summer of 1975 when Waco
was working pursuant to a contract with the Virginia Elec-
tric and Power Company (Vepco) to pressurize and repair
the number 2 boiler at its Mount Storm, West Virginia,
facility. The number of employees consisting of laborers,
welders, riggers , mechanics, and carpenters rose from
about 20 in June to approximately 230 in July 1975. Wil-
liam Walker was the president of Waco. William Belanich,
as field superintendent for Waco, was directly in charge of
the operation. Roger Junkins was the general foreman, and
Robert Talbott, as foreman, supervised Douglas Rexrode
and Paul Kuykendall, the two discharged employees and
Charging Parties.
Rexrode was employed by Waco as a welder on July 2,
1975. On July 16, 1975, 2 weeks later, he was summarily
discharged from his job, even though his performance as a
welder was highly regarded. The discharge followed a con-
frontation between Superintendent Belanich and a group
of employees with Douglas Rexrode as their spokesman.
Kuykendall was hired by Waco on May 2, 1975, as a rig-
ger. His discharge occurred on July 17, 1975, shortly after
he had requested an increase in pay.
The General Counsel alleges that the two discharges
were prompted by nothing more than protected concerted
activity with other employees for their mutual aid and pro-
tection in requesting more money.
The Respondent generally argues that the two employees
were fired for cause. Douglas Rexrode was, according to
the Employer, unreasonable by demanding a pay increase
after only 2 weeks on the job, acted in an insubordinate
manner towards his supervisors during the confrontation,
and failed to do his job on the day of his discharge. Paul
Kuykendall was, in the opinion of the Employer, generally
negligent and inefficient in performing his job; his repeat-
ed requests for more pay and complaints about working
conditions reflected his general dissatisfaction in his em-
ployment. It is also the Respondent's contention that both
men failed to pursue their pay demands in accordance with
the existing collective-bargaining agreement between Waco
and the United Steelworkers of America.
The record concerning Douglas Rexrode is fairly consis-
tent. During his approximate 2 weeks' tenure, from July 2
to July 15, his performance as a welder was regarded by his
supervisors as very satisfactory. On the morning of July 16,-
1975, following the morning break, about five employees of
Waco, including Rexrode as the spokesman, confronted
their foreman, Robert Talbott, and requested a pay raise.
Talbott, indicating that he had a list of their names on
paper, told the group that he agreed with their request for
more money because they had been doing a good job. Be-
cause of the group's insistence for an immediate answer,
Talbott called Superintendent Belanich who had overall
responsibility for Waco's project at Mount Storm.
A meeting ensued between Belanich and the group of
welders (Kuykendall who had been part of the group con-
fronting Foreman Talbott had already left and returned to
his work) which lasted approximately 1 hour. During this
meeting, Rexrode, speaking for the group, demanded more
money. Belanich responded by suggesting that he planned
a welding test to determine whether a raise was justified.
Rexrode, however, insisted on an immediate and firm indi-.
cation as to whether their request would be granted, since
the group felt that their work was superior to that of other
welders who were receiving the same salary. The discus-
sions by all participants during the meeting became heated,
but Rexrode was the loudest and most outspoken of the
group who spoke in a very loud voice and who was not
satisfied with Belanich's explanation that they could expect
an answer in a day or two. Even though the group initially
refused to go back to work since they had tentatively de-
cided to quit without an assurance for an increase in pay,
they finally complied with an ultimatum by Belanich that
they had 5 minutes in which to return to work. During the
same afternoon, Belanich and General Foreman Junkins
observed that Rexrode did not perform his job as well as he
did on previous days, and that he occasionally socialized
with his coworkers.
About 3:30 p.m. of the same day, Superintendent Bela-
nich called Douglas Rexrode into his office, gave him his
check, and explained that he had been unreasonable in
demanding a raise and stated "the best thing is that we part
company. "
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record is quite clear that Rexrode was fired because
of his actions and demeanor in demanding more money.
Although his work performance during the portion of July
16 following the meeting may not have been as high as
usual , it did not provide the real basis for his dismissal.
Indeed , it is frankly conceded that Belanich considered
Rexrode 's attitude as "unreasonable" and, therefore, a
proper justification for the adverse action against him.
Only once , pursuant to a leading question by counsel, did
Belanich regard Rexrode 's behavior as an act of insubordi-
nation . In any case , the record does not support a finding
of insubordination . There is no suggestion that Rexrode
ever defied any orders by his superiors in the performance
of his work . His initial failure during the meeting to return
to work was committed in the context of the concerted
activity; moreover, he ultimately yielded and went back to
work in accordance with Belanich 's order. And mere loud-
ness or even shouting during the discussion does not
amount to an act of insubordination.
However, a demand for more money after only 2 weeks
on the job and the insistence on immediate results can fair-
ly be characterized as "unreasonable ." t I, therefore, agree
with Superintendent Belanich 's characterization of
Rexrode 's demand . But "it has long been settled that the
reasonableness of workers ' decisions to engage in concert-
ed activity is irrelevant to determination of whether a labor
dispute exists or not ." N.LR.B. v. Washington Aluminum
Company, Inc., 370 U.S. 9, 16 (1962). In short, mere unrea-
sonableness of an employee in his quest for improved
working conditions does not remove him from the realm of
protected activities. To the contrary, employees would con-
stantly be exposed to acting at their peril if their demand
would have to be a reasonable one in order to come within
the purview of the Act.
Section 7 of the Act guarantees employees the right to
engage in "concerted activities for the purpose of collective
bargaining or other mutual aid or protection" with respect
to their terms and conditions of employment . Section
8(a)(l) of the Act implements this guarantee by making it
an unfair labor practice for an employer "to interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed in Section 7." As spokesman for the group,
Rexrode clearly acted in concert with other welders in de-
manding more pay. I , therefore , find that Waco 's practices
concerning Douglas Rexrode violated Section 8(a)(I) of
the Act.
Waco's argument that an existing collective-bargaining
agreement with the United Steelworkers of America re-
quired the group to pursue their demands through a bar-
gaining representative is not persuasive . The record is not
conclusive that a valid bargaining agreement (Resp. Exh.
1) was applicable to the particular group of welders. Even
though there was testimony and other evidence to the ef-
fect that the "Memorandum of Agreement" dated Septem-
ber 26, 1975 (Resp. Exh. 2), which specifically covered
welders, riggers, and laborers was in effect by oral agree-
ment as of June 1, 1975, there is no evidence that this oral
agreement had ever been communicated to the affected
1 Superintendent Belanich 's high degree of articulation casts doubt on
any suggestion that he equated "unreasonable" with "insubordinate."
employees prior to July 16, 1975. Indeed, at no time during
the July 16, 1975, meeting was there any mention of the
requirement of a bargaining representative. It would seem
logical that Belanich could easily have terminated the
meeting by a simple reference to such a requirement.
Moreover, the group of employees was totally unaware
that such an agreement existed or that union representa-
tion was available. During the relevant period of time only
10 to 15 percent of Waco's total employees at the Mount
Storm project belonged to the Union. Finally, employees'
concerted activity, even if in derogation of a provision in a
valid bargaining agreement, is not beyond the protection of
the Act. Ernst Construction Division of Ernst Steel Corpora-
tion, 212 NLRB 78 (1974); see also The Singer Company,
198 NLRB 870 (1972).
Turning now to the allegations in the complaint involv-
ing Paul Kuykendall's discharge on July 17, 1975, 1 day
after Rexrode's, the result is not as clear. The record indi-
cates that Superintendent Belanich hired Kuykendall on
May 2, 1975, as a rigger or as a rigger's helper. The evi-
dence is fairly consistent that his job performance was un-
satisfactory. For example, during the second week of his
tenure he was observed by his foreman to have rigged a
large fan improperly. Also while Kuykendall was thereafter
assigned to the labor crew, his supervisor there was dissat-
isfied with Kuykendall's performance. Belanich subse-
quently warned him about his poor performance and, even
though this employee promised to improve, he experienced
subsequent difficulties in doing his job properly.
Nevertheless, on at least four occasions Kuykendall
asked for more money, including a week after he was
warned about his poor performance 2 days before and I
day prior to his discharge. On July 16, Kuykendall had first
joined the group of welders when they confronted Fore-
man Talbott; however, Kuykendall was not present during
the ensuing confrontation with Belanich, because Kuyken-
dall had returned to work. Finally, on July 17, Talbott re-
ported to Belanich that Kuykendall had again requested
more money and seemed dissatisfied with his working con-
ditions. Belanich then called him to his office and inquired
what his problem was. Kuykendall replied, "The only
problem I had was the problem with money." Belanich
them reminded him that he heard about his "talking to a
few of the guys trying to start trouble again," whereupon
Kuykendall admitted to having talked to a fellow employee
about the firing of Douglas Rexrode. Belanich proceeded
to prepare a check, explained that he did not need anybody
who was dissatisfied with his job working under him, and
made it clear that he was fired.
The record is certainly clear that Kuykendall was dis-
charged because he had repeatedly asked for more money,
had complained about the working conditions, and had a
poor performance record. The question, however, is wheth-
er Kuykendall was fired for protected concerted activity.
While this question may be considered a close one under
the factual circumstances of this case, I believe that the
indicia of concerted action are insufficient to come within
the protection of Section 7.
First, Kuykendall's efforts in obtaining more money pre-
ceded the group activity on July 16, 1975, and were clearly
for his own individual interests rather than on behalf of
WACO INSULATION
any group. Second, the group led by Rexrode consisted of
welders who were paid at $5.01 an hour. Kuykendoll was a
rigger who was paid at the rate of $4.29 an hour. Third,
even if the welders had received more money pursuant to a
test or otherwise, Kuykendall would probably not have
been included because he was not a welder and because of
his poor work record. Fourth, the crucial confrontation be-
tween Belanich and the group did not include Kuyken-
dall2 Fifth, Kuykendall's final pay request was made indi-
vidually on July 17 without any group activity. The only
evidence of his actions being in concert with other employ-
ees was that he briefly joined the group on July 16, when it
confronted Foreman Talbott, and that the following day
Belanich indicated his displeasure about Kuykendall's con-
versations with other people "to start trouble." In general,
however, Kuykendall acted on his own initiative, for his
own interest , and was considered by Belanich as acting on
his own. See Snap-On Tools Corporation, 207 NLRB 238,
239 (1973); Northeastern Dye Works, Inc., 203 NLRB 1222,
1223 (1973); Barnsider, Inc., 195 NLRB 754, 760 (1972);
Indiana Gear Works, A Division of The Buehler Corporation,
156 NLRB 397, 409 (1966).
Under these circumstances, I find that the allegations in
the complaint dealing with Paul Kuykendall's discharge
have not been established.
2 While the group waited for Belanich in the lunchroom on that day.
Kuykendall had requested Talbott to call him as soon as Belanich arrived,
because Kuykendall had decided to return to his work. Talbott. however,
failed to call him.
3 During the hearing I reserved my ruling on the objections by counsel for
the General Counsel to the receipt of certain evidence dealing with the
reinstatement of the two employees . The objections are overruled , since the
evidence is relevant to the fashioning of an appropriate remedy.
CONCLUSIONS OF LAW
1491
By discharging an employee, Douglas Rexrode, for en-
gaging in protected concerted activity, Respondent en-
gaged in an unfair labor practice within the meaning of
Sections 8(a)(1) and 2(6) of the Act. Any other allegations
of violation in the complaint have not been substantiated
and should be dismissed.
THE REMEDY
I recommend that the Respondent be ordered to cease
and desist from these and related unfair labor practices,
and to take affirmative action which I find necessary to
effectuate the policies of the Act.
Since the record shows 3 that Waco had subsequently
offered reinstatement to the two discharged employees, in-
cluding Rexrode, with the assurance by its president that
they be treated fairly, and since the employees were rein-
stated, but voluntarily quit their jobs shortly thereafter, the
order in this case will not contain a reinstatement provi-
sion. This also accords with the General Counsel's omis-
sion for such a request in the concluding paragraph of his
brief. However, backpay is necessary to make the employ-
ee whole for any loss of earnings suffered up to the time he
was reinstated. The amount is to be computed in the man-
ner established in F. W. Woolworth Company, 90 NLRB 289
(1950), plus interest at the rate of 6 percent per annum, as
set forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
[Recommended Order omitted from publication.]