Walker Electric Co., Inc.

National Labor Relations Board - Board Decisions

Jul 25, 1975

219 N.L.R.B. 481 (N.L.R.B. 1975)

WALKER ELECTRIC CO. 481
Walker Electric Co ., Inc. and Richard O. Holcomb,
Jr. Case 25-CA-6656
July 25, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On April 7, 1975, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
limited exceptions and a brief in support of the Ad-
ministrative Law Judge's Decision.
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 2 of the Administrative Law Judge and
to adopt his recommended Order as modified herein.
The General Counsel excepted to the Administra-
tive Law Judge's failure to order Respondent to re-
store Charging Party Richard Holcomb to his posi-
tion as warehouse leadman. We find merit in this
exception.
In September 1974, shortly after he testified
against the Company in grievance proceedings be-
fore an arbitrator, Holcomb was demoted from his
position as warehouse leadman. As a consequence of
this demotion, Holcomb lost the additional 25 cents
per hour paid to the leadman under the collective-
bargaining agreement.
Although the Administrative Law Judge conclud-
ed that the action taken against Holcomb in Septem-
ber was motivated by the Company's desire to retali-
ate against Holcomb for his role in pressing the
grievances, his recommended Order merely required
Respondent to restore the 25-cent-per-hour pay cut
and to make Holcomb otherwise whole for any mon-
ey he may have lost by reason of the discrimination
against him.3
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule 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 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 The General Counsel has excepted to the Administrative Law Judge's
failure to make additional findings of unlawful threats . We find it unneces-
sary to pass on these exceptions , since any additional findings would merely
be cumulative and, therefore , would not affect our remedy herein.
The Administrative Law Judge explained his fail-
ure to recommend a remedy that included
Holcomb's reinstatement as warehouse leadman by
observing that Holcomb had not been "removed
from his job," this apparently in reference to the fact
that Holcomb continued to work as a warehouse-
man. Furthermore, the Administrative Law Judge as-
serted that reinstatement was not justified here be-
cause "it is a border line question whether he
[Holcomb] was functioning on behalf of manage-
ment or not."
Contrary to the Administrative Law Judge, we
conclude that the circumstances of this case require
that we order Respondent to reinstate Holcomb and
thus to restore the status quo ante. In this regard we
note that under Section 10(c) of the Act this Board is
charged with ordering "such affirmative action as
will effectuate the policies of this Act." Furthermore,
we note that an employee is entitled to relief from
any personnel action undertaken for discriminatory
motives whether such action be discharge, transfer,
or, as here, demotion.4 Tan-Tar-A Resort, 198 NLRB
1104 (1972). Accordingly, we shall modify the Ad-
ministrative Law Judge's recommended Order and
grant the Charging Party the full and effective reme-
dy to which he is entitled.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent, Walker
Electric Co., Inc., Terre Haute, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order, as so modified:
1. Substitute the following for existing paragraph
1(a):
"(a) Reducing the pay of employees and demoting
them or in any other manner discriminating against
3 The Administrative Law Judge found that an earlier pay cut of 25 cents
per hour in Holcomb's wage rate was unlawfully motivated, and recom-
mended that the Company also be ordered to restore this pay cut if in fact
it had not already done so.
° For the first time in its exceptions the Respondent urges that Holcomb
was a supervisor as that term is defined in the Act and hence is without the
protection of- the Act . Respondent's contention in this regard apparently
stems from the Administrative Law Judge's comment concerning the "bor-
der line" nature of Holcomb 's duties The record indicates that at some time
in the spring of 1974 Warehouse Foreman Jerry Monroe took on additional
duties as a salesman . However , the record also shows that Monroe contin-
ued to function as warehouse foreman and that Holcomb and the other
warehousemen continued to regard him as the immediate warehouse super-
visor Although Holcomb in his capacity as leadman did direct warehouse
employees in the routine performance of their duties, there is no evidence
that he was clothed with or exercised powers that the Board regards as
indicia of supervisory status Accordingly , we find that the Respondent's
exception lacks merit.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them because of their union activities or because bargaining or other mutual aid or protection, or
they file grievances pursuant to a collective-bargain-
ing agreement."
2. Substitute the following for existing paragraph
2(a):
"(a) Restore to Richard Holcomb the reduction in
hourly pay imposed upon him in June and again in
September of 1974, in the manner set forth in the
section herein called "The Remedy"; offer Richard
Holcomb immediate and full reinstatement to his
former position as warehouse leadman, with all du-
ties and functions, or, if that position no longer ex-
ists , to a substantially equivalent position, without
prejudice to his seniority or other rights and privi-
leges previously enjoyed."
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
unfair labor practices not found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we violated the Federal law by de-
moting and reducing the pay of an employee because
he processed grievances or engaged in union activi-
ties:
WE WILL NOT discriminate against employees
or reduce their hourly pay or demote them be-
cause they file grievances pursuant to a union
contract or otherwise engage in union activities.
WE WILL make Richard Holcomb whole for
any earnings he lost as a result of our discrimi-
nation against him, plus 6-percent interest, and
we will reinstate him to his position as ware-
house leadman or, if that position no longer ex-
ists, to a substantially equivalent position, with-
out prejudice to any seniority or other rights and
privileges previously enjoyed.
WE WILL NOT threaten to discontinue Christ-
mas bonuses unless our employees cease filing
grievances through their Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
join or assist Local 144, Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any
other labor organization, and to engage in other
concerted activities for the purpose of collective
to refrain from any and all such activities.
WALKER ELECTRIC CO., INC.
DECISION
STATEMENT OF THE CASE
THOMAS A RICCI, Administrative Law Judge: A hearing
in this proceeding was held on January 23, 1975, at Terre
Haute , Indiana, on complaint of the General Counsel
against Walker Electric Co., Inc., herein called the Respon-
dent or the Company. The charge was filed by Richard O.
Holcomb, an individual, on November 1, 1974, and the
complaint issued on December 5, 1974. The sole issue of
the case is whether Holcomb, an employee of the Respon-
dent, suffered illegal discrimination in employment in vio-
lation of Section 8(a)(3) of the Act because of his union
activities. Briefs were filed by the General Counsel and the
Respondent.I
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is engaged in the wholesale sale and
distribution of appliances, electrical equipment, and relat-
ed products, with its principal place of business in Terre
Haute, Indiana. During the past year, a representative peri-
od, in the course of its business it purchased and had deliv-
ered to that location goods and materials valued in excess
of $50,000 from out-of-state sources. During the same peri-
od it sold products from this location valued in excess of
$50,000 shipped to out-of-state locations. Its gross volume
of sales business annually exceeds $500,000. I find that the
Respondent is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Local 144, Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the
Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Among the groupings of employees which the Respon-
dent uses in its wholesale electrical equipment distribution
business is a warehouse, where about 10 persons, called
warehousemen, work. There has normally been a foreman
1 The hearing was continued sine die on January 23 so that a deposition
could be taken of Joe Walker , a witness for the Respondent . By stipulation
dated March 10, 1975, the parties agreed to place into evidence the deposi-
tion of that witness; marked Resp . Exh. 3 , the deposition was accordingly
received into evidence and the hearing was closed on March 13, 1975.
WALKER ELECTRIC CO. 483
in charge over these men, and a leadman too. There is also
what is called a kitchen department ; apparently this is
physically separate from the major warehouse , but also
contains a display of kitchen equipment and a certain
amount of stored such equipment , all for sale . There are
also salesmen , working both in the front offices and away
from the premises , truckdrivers, and other categories in a
nearby building used in the Respondent 's business.
In December 1972 the Company entered into a collec-
tive-bargaining agreement with Teamsters , Chauffeurs,
Warehousemen and Helpers Local Union No. 144, for a
unit including shipping clerks , warehousemen , order fillers,
etc. Holcomb , the Charging Party here, now 8-1 /2 years an
employee of the Company, first was a driver, but by 1972
had for several years been assistant foreman in the ware-
house and also leadman . He continued as a leadman even
after the contract was made . The first union steward under
the contract was J . Rogers , Sr., and in 1973 Holcomb was
designated steward in his place . Throughout the events giv-
ing rise to this proceeding-from the first day the union
contract was made to the close of the hearing-all parties
were in agreement that Holcomb was not a supervisor
within the meaning of the Act, but only a rank-and-file
employee entitled to all the protection of the statute.
One other very pertinent fact must be made clear at the
outset . In the spring of 1974 Holcomb was giving orders to
the other employees in the warehouse-assigning work,
telling them what to do and when , seeing that the work
flowed. The nominal foreman of the department-Jerry
Monroe-had for some months been made a salesman, at
his own request ; the Company liked him and therefore
obliged him in this way. He worked at a desk in the offices
at the front of the building; the warehouse is in the rear.
With this, leadman Holcomb obviously had even more
"leading" to do than would had been the case with a "fore-
man" working with the men in the same area . And the
record shows with utmost clarity that management was
very pleased with the arrangement . By June 1974 there had
already for several months been many complaints by ware-
housemen that Holcomb was too dictatorial in ordering
people around to work, and what right did he have assign-
ing work so pressingly and high-handedly anyway?-he
only a leadman? The Company ignored all of these com-
plaints-an understandable reaction.
On successive Saturdays in June-on the 1st and on the
8th-some kitchen equipment had to be moved in, or out
of the kitchen department and its separate warehouse. The
work was done by a supervisor there and by some sales-
men. Holcomb, the union steward , thought that work be-
longed to the warehousemen , under the Teamsters con-
tract , talked to some of his men , and was instrumental in
having them file grievances , claiming the money must now
be paid the warehousemen although they had not done the
work. Two written grievances were filed over the June 1
incident-one by J. Rogers, Sr., and one by Herman
Scharf, both on June 4 and both claiming 8 hours pay. Two
others were filed over the June 8 incident , again one by
Rogers and the other by Holcomb himself , these on June
14 and again both claiming 8 hours' pay.
There had never previously been any grievances pro-
cessed under the contract then in effect covering the ware-
house employees . On June 9 the Respondent cut
Holcomb's hourly pay by 25 cents . The complaint alleges
this was punishment by management for having instigated
the grievances and therefore a discrimination in employ-
ment violative of Section 8(a)(3) of the Act.
On July 11 Holcomb filed still another grievance in his
own name , claiming that the 25 -cents-per-hour reduction
in his pay violated the contract then in effect.
All five of the grievances went to arbitration , and there
was a hearing before the arbitrator on September 18, 1974.
Holcomb was the only witness who testified on behalf of
the Union and in support of the grievances . Two days later
he was removed from his position as leadman and lost an-
other 25 cents in hourly pay. Again the complaint calls this
second reduction in pay unlawful discrimination and a fur-
ther violation of Section 8(a)(3).
The Respondent denies any improper intent in either of
the two 25 -cent reductions in pay . As to the first , the Re-
spondent explains it on the simple ground that Holcomb
had erroneously been overpaid 25 cents per hour since way
back in December 1972 when the Union contract was
agreed upon , and that the change back , when made, was
no more than a correction of an old mistake . The removal
of Holcomb from his position as a leadman , and the fur-
ther loss of 25 cents in pay , was forced upon it , according
to the Respondent , by the complaints of warehousemen
that they could not get along with the man , indeed that
-some had threatened to quit unless someone else were
placed in authority to look over them . The Respondent
insists the business of filing and processing the grievances
had nothing to do with either change in pay.
Other Pertinent Facts; Conclusion
The extraordinary timing of the critical events gives rise
to so strong an inference of causal relationship that absent
the most convincing affirmative evidence of unrelated mo-
tivation in the Respondent , a conclusion of illegal intent
against Holcomb is compelled. For almost 2 years the lead-
man was paid $4.50 or $4.75 per hour; he was never crit-
icized for his work . Indeed management must have had a
truly high opinion of his competence , if they could agree to
have the foreman of the department virtually leave the
warehouse and pursue a career as a salesman elsewhere.
The personnel director, Lowell Jackson, testified in detail
of his tremendous concern over this 25-cent matter, how he
"explained . . . the situation" to the company lawyer, Mr.
Duffy: "I contacted Mr. Duffy on three or four different
occasions by telephone," asking the lawyer to try to bring
"this thing to a head" directly with the Teamsters business
representative . The Respondent's witnesses tried to create
the impression this 25 cents had long raised a furor among
the employees , but the testimony shows only the following.
(1) When he saw his first paycheck at the time the contract
was made , about a year and a half before July 1974, Hol-
comb wondered whether it was right or wrong ; nothing
was done about the doubt then and the Company just con-
tinued paying him what, without a doubt, it thought right.
(2) Some months before July 1974 one or more plain ware-
housemen asked could they be paid 25 cents per hour more
whenever they substituted as leadman during Holcomb's
484 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
absence; they did not receive it. Beyond this there was no
problem so significant that it had to "come to a head," or
required multiple calls for legal assistance.
Holcomb testified that on June 6 or 7 (this was 2 days
after the first grievances over the kitchen department work
were filed) Jackson told him he as being overpaid 25 cents
and "if it became necessary he could even take me to court
to get it back." Holcomb said the contract called for the
money, and then asked "why this was happening" to him.
Still according to Holcomb , Jackson "mentioned this thing
at the kitchen . . . that it was primarily because of the
trouble at the kitchen division also." On June 9 his pay was
reduced.
On direct examination Jackson denied referring to the
grievances when telling Holcomb he was overpaid. Was he
aware of the grievances at that moment ? "I don't think so.
I think this was a few days before the grievances were even
in our hands." Richard Walker, vice president, had already
testified he had nothing to do with grievances, they nor-
mally do not come to his attention . On cross-examination
Jackson was asked how quickly do grievances reach him.
"I would say if they are filed one day that they are in my
hands the same day. I know about them." And then: "Q.
... when did you speak to Mr. Holcomb about the twen-
ty-five cent increase? A. It had to be sometime after June 4
because of the pay schedule ...." Jackson was not a con-
vincing witness.
There is more direct evidence that management knew
about and resented Holcomb's attitude as to who was sup-
posed to do the kitchen department work, and his activity
in pushing the merits of the grievances already filed. Joe
Walker, company president and the father of Richard
Walker, talked to him in the presence of others on June 5.
Holcomb testified that the owner loudly and forcefully ex-
pressed dissatisfaction with his work.
A. He told me that he was very dissatisfied with my
work. He indicated to me that the work at the kitchen
division was not our work; he told me that he was
dissatisfied with the appearance, that the place was
dirty, that the corners needed cleaning. I asked him
what he wanted done first. Did he want the corners
cleaned or did he want the work done? He said he
wanted the work done, and, again, he emphasized that
he was very dissatisfied with my work and that he
would be watching me. He repeated this several times
that he would be watching me.
Q. You said that he said that the work in the kitch-
en area was not your work?
A. Yes.
Q. Do you know what he was referring to?
A. He was referring to the grievances.
Q. What grievances?
A. The grievances that I processed.
JUDGE : What did he say?
WITNESS : He said that the work was not our work.
By M.S. Cooper:
Q. How do you know he was referring to the work
of the kitchen area?
A. I had just processed two grievances I believe it
was the day prior to this and he said that this thing
that the kitchen division I was wrong that it was not
our work.
Holcomb continued to testify that at this point the son,
Richard Walker, came by, joined in and: "He said that
there probably wouldn't be any bonus paid over the trou-
ble we were having at the kitchen division . . . . A. What
was said in that conversation by you and by Mr. Walker
both? . . . A. He said that over the grievances of the kitch-
en division there would not be any bonus paid."
The president was unable to testify at the hearing and in
his deposition, given 3 weeks after the end of the oral hear-
ing, denied there was any reference to grievances during
his diatribe against Holcomb; he said the talk occurred
early in May. He also said that Holcomb then became up-
set and "proceeded to tell me he didn't take orders from
me that he took his orders from the Union . . . I take my
instructions from the Union." Walker continued that at
this point , his son , hearing "this loud conversation," came
by and said "if this thing kept on there wasn't going to be
any bonus for anyone this year."
Consistent with the record as a whole, the president, too,
said the man for years had been absolutely a competent
and satisfactory employee. "I have never at any time said
anything about Mr. Holcomb about his work . . . I never
had complaints against Mr. Holcomb." What was it at that
particular moment that provoked so sudden an unprece-
dented outburst? Holcomb said it was because of the griev-
ances ; Joe Walker said not so. The answer is clear enough
in Richard Walker's testimony, for when called as a de-
fense witness he virtually corroborated Holcomb. He was
asked to repeat what he had said about possible loss of
bonus when he heard his father talking with Holcomb and
other employees-whenever it was that the criticism by the
president was being voiced. His testimony follows:
I spoke about the trouble that it was causing the
Company, the interruption of work at different times,
some of the petty things I assumed were unnecessary
as an officer of the Company, I could see where a lot
of this was becoming very expensive. I had knowledge
of expenses that were quite large and I made a state-
ment back there for whatever good it would do that if
things like this, as I recall my words, if things like this
keep continuing I don't see how we will be able to pay
a bonus to anybody.
i #
I mentioned the fact that I had seen , I had just seen
an invoice I think it was $1200 and that was partly
what I had reference to. My thought was in mention-
ing this that maybe everybody will get together and
say, hey, look; maybe they don't know this is costing
money. I thought with that point in mind that maybe
some of the others would get together and talk to each
other and say, well, look, let's try to find another way
to solve these things.
JUDGE: In the way of solving what?
WITNESS: The grievances, some of the grievances
that I thought were little unnecessary to go through
the arbitration and things of that nature. I thought we
WALKER ELECTRIC CO. 485
could solve the cabinet situation or something that
happened once in 6 years that we take down a display.
The word "cabinet" from the manager at that point of
his testimony referred to certain of the kitchen equipment
kept in the kitchen department, or kitchen warehouse,
meaning kitchen cabinets, the type of equipment included
in the things the Respondent sells. And the word "display"
as used by the witness had reference, clearly upon the rec-
ord as a whole, to the fact that in the kitchen department
or warehouse, kitchen equipment was also placed on dis-
play for customers to see.
I read the son's testimony as corroboration of that of
Holcomb. I credit Holcomb against Joe Walker and
against Jackson. I find the Respondent cut his pay by 25
cents per hour to punish him for having filed the griev-
ances, and to deter him from pushing them further, and
thereby violated Section 8(a)(3) of the Act. It may well be
that in the conversation that day, and it must have come in
June, after the grievances were filed, Holcomb told the
boss he took his orders from the Union. If he did, logic
dictates an inference he must have been referring to the
right to file grievances, and the right to claim the kitchen
warehouse work as belonging to the Teamsters members. I
cannot believe a leadman, so many years highly regarded
by management, would say to the company president that
on the question of whether the refuse cans should be cov-
ered he would heed the advice of the Union and not that of
his employer.
I also find that Manager Richard Walker's threat, voiced
to Holcomb and the employees then present, that the Re-
spondent would withhold the Christmas bonus unless the
employees ceased filing grievances under the union con-
tract, constituted a violation of Section 8(a)(1) of the Act
chargeable to the Respondent.
I reach the same conclusion as to the second reduction
in pay 3 months later. Indifferent to the Walkers' admoni-
tions to him not to press the Saturday work grievances on
the ground that the Company could not afford to pay, he
appeared as the sole witness , again pressing for money
from the Company on September 18 before the arbitrator.
According to the Walkers, on September 19 a new man
was offered the job as foreman in fact over the warehouse,
and on September 20 Holcomb was told that he was no
longer leadman, with consequent loss of another 25 cents
in pay. None of the assertions offered in explanation of
why this action came at exactly that time, and not before
or later , is convincing.
The basic affirmative defense is that Holcomb ceased
being leadman because he could not get along with the
warehousemen . As articulated in descriptive adjectives the
problem was called one of personality conflict, clash of
temperaments , Holcomb favoring one warehouseman (a
brother-in-law) over others, his unpleasant mannerisms, his
animosity, etc. Trouble there was between Holcomb and
the men under him, for on June 19, 1974, seven of the nine
signed a petition to the Company asking his removal as
leadman. But none of the conclusionary descriptive lan-
guage can alter the direct evidence of what exactly the men
resented, and it was Holcomb's insistence that they all
work, and work hard. Thus Manager Walker said that a
warehouseman named Powell said to him: " `... he [Hol-
comb] keeps telling me to do this and do that' and he says,
I don't know whether I am coming or going . . . . About
the time I get ready to take my deliveries out he tells me to
go unload a kitchen or something."' Another warehouse-
man, Hamilton, also testified about Powell's complaint
against the leadman: "Tom [Powell] was mad because .. .
he had just took one out and he came right back and they
sent him out with another one, and he thought that one of
us other guys should have done it." The foreman, Monroe,
testified an employee named Meyers complained to him:
"that he [Meyers] would take the orders back and some of
the guys would be standing and instead of Dick telling
them to fill the orders he would have him go ahead and fill
them when he had a man standing there which should have
been filling them...." Meyers himself made his com-
plaint clearer: "at the time he was leadman he would order
jobs to be done that they felt like he wasn't entitled to give
orders; . . . They said that he was giving orders that he
had no right to . . . . That he was giving orders that he
had no right to give; that he was not the foreman; that he
was a leadman. They did not think that they had to follow
orders that he told them to do." Meyers also testified that
he signed the June petition against Holcomb because an-
other warehouseman named Wilson told him "we don't
think he is capable of holding his position anymore and he
is giving too many orders and we don't think this is right."
From the testimony of warehouseman Hughbanks: "Well
Dick was running the place not as a leadman but as a
foreman which he was not." "Q. Was there any other rea-
sons you signed the petition aside from that? A. No."
There is evidence that complaints of this kind had come
to management quite before the signed employee petition
of June 19. The Company did nothing about them. I find
totally unpersuasive the purely self-serving and unsupport-
ed statements that the Company waited until September to
hire a foreman because it could not find a qualified man,
and did not replace Holcomb as leadman for fear it had no
right to do so without the Teamsters consent. Manager
Walker knows all about unions; he has been in collective-
bargaining relations with the IBEW for his across-the-
street operation-apparently unrelated to this electrical
equipment wholesale business-for 25 years, negotiating a
new contract every year. If he had any doubt about
management's right to decide who was to give work orders
to employees, all he had to do was ask the Teamsters busi-
ness agent , and it would hardly have taken 3 months or
more.
There is also indication on this record that one of the
things warehousemen came to hold against Holcomb was
the very fact he had pushed the grievances over the kitchen
department work. Why this should have been so, I do not
understand, but that question is beside the point here. The
fact is all five of the grievances-four over the work assign-
ment and the fifth over the 25 cents Holcomb lost in
June-prevailed before the arbitrator following Holcomb's
supporting testimony. But the fact he proved to be right in
his grievances in no sense helps to prove the merits of the
complaint in this case, for a man is protected when filing
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievances regardless of whether they are meritorious or
not .2 By like reasoning , he may not be discharged , or suffer
any discrimination in employment , because he files or in-
stigates grievances , even where the employer wins them all.
It is therefore no comfort to the defense that in the opinion
of one person or another the question whether the Respon-
dent had a contractual right to reduce Holcomb's pay was
a close one. The question here is not whether it violated the
contract in the cut in pay, but whether it cut the pay when
it did for reasons proscribed by this statute.
I find on the record as a whole that by reducing
Holcomb's pay in September 1974 the Respondent com-
mitted an unfair labor practice in violation of Section
8(a)(3) of the Act.
THE REMEDY
Remedial action here requires that the Respondent raise
Holcomb's hourly rate of pay by 25 cents twice, and reim-
burse him now for any money he may have lost because of
the unlawful reductions of the past . There is some evidence
in the record that the Respondent may already have com-
plied with the decision of the arbitrator finding that the
first cut in pay, of June 1974, was improper, and that it has
already been restored to Holcomb, with compensation for
money lost. In that event, there would be no occasion to
reimburse him twice as to that particular discrimination.
There is also no occasion here for reinstatement of any
kind, for Holcomb was not removed from his job. I also do
not think that the circumstances of the case justify an order
that the Company restore Holcomb to the leadman's posi-
tion he once held, for in truth it is a border line question
whether he was functioning on behalf of management or
not. Indeed, perhaps there would be less occasion for un-
fair labor practices in the future if a clearer distinction be
maintained between rank-and-file employees, with conse-
quent membership in the Union , and those persons em-
powered to see that people work the way the employer
requires.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above , occurring in connection with the operations of Re-
spondent described in section I, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor dispute burden-
ing and obstructing commerce and the free flow of com-
merce.
CONCLUSIONS OF LAW
1. By reducing the hourly pay of Richard Holcomb in
June and again in September 1974, the Respondent has
engaged in and is engaging in unfair labor practices in vio-
lation of Section 8(a)(3) of the Act.
2. By the foregoing conduct and by threatening to dis-
2 Mushroom Transportation Co. Inc., 142 NLRB 1150 (1963 ). reversed on
other grounds 330 F.2d 683 (C.A 3, 1964) See also Northwest Drayage Co.
201 NLRB 749 (1973).
continue a Christmas bonus unless the employees cease
filing grievances through their union, the Respondent has
engaged in and is engaging in violations of Section 8(a)(1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law
and entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
ORDER3
The Respondent, Walker Electric Co., Inc., Terre Haute,
Indiana , its officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Reducing the pay of employees or in any other man-
ner discriminating against them because of their union ac-
tivities or because they file grievances pursuant to a collec-
tive-bargaining agreement.
(b) Threatening to discontinue Christmas bonuses un-
less the employees cease filing grievances through their
union.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights of self-
organization, to form, join, or assist Local 144, Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization, to bargain collectively
through representatives of their own choosing, and to en-
gage in other concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following affirmative action necessary to ef-
fectyhte the policies of the Act:
(a) Restore to Richard Holcomb the reduction in hourly
pay imposed upon him in June and again in September of
1974, in the manner set forth in the section herein called
"The Remedy."
(b) Make whole Richard Holcomb for any loss of pay
he may have suffered by reason of the Respondent's dis-
crimination against him.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the
terms of this recommended Order.
(d) Post at its place of business in Terre Haute, Indiana,
copies of the attached notice marked "Appendix." 4 Copies
of said notice, on forms provided by the Regional Director
for Region 25, after being duly signed by its representa-
7 In the event no exceptions are filed as provided in Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions and Order , and all objections thereto shall be
deemed waived for all purposes.
4In the event that the Board's 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 "
WALKER ELECTRIC CO. 487
tives, shall be posted by the Respondent immediately upon notices are not altered, defaced, or covered by any other
receipt thereof, and be maintained for 60 consecutive days material.
thereafter, in conspicuous places , including all places (e) Notify the Regional Director for Region 25, in writ-
where notices to employees are customarily posted . Rea- ing, within 20 days from the date this Order, what steps the
sonable steps shall be taken by it to insure that all said Respondent has taken to comply herewith.