Cray-Burke Co.

National Labor Relations Board - Board Decisions

Jan 25, 1974

208 N.L.R.B. 708 (N.L.R.B. 1974)

708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cray-Burke Company and Vincent J. Callahan. Case
1-CA-9039
January 25, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On September 4, 1973, Administrative Law Judge
Herzel H. E. Plaine issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed a brief in answer to Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm 'the rulings,
findings,' and conclusions2 of the Administrative
Law Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Cray-Burke Compa-
ny, Springfield, Massachusetts, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
CHAIRMAN MILLER, dissenting:
Contrary to my colleagues, I do not find that the
Administrative Law Judge's Decision adequately
resolves all of the issues raised by the testimony in
this proceeding. In reaching his conclusion that
employee Callahan was discharged for engaging in
protected activity, the Administrative Law Judge
relied on a composite of the testimony of various
1 The Respondent has excepted to certain credibility findings made by
the Administrative 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, enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
Respondent has also excepted to the Administrative Law Judge 's finding
that shipper Joseph Rego is a supervisor . However , in light of the
Administrative Law Judge 's finding, with which we agree, that Respon-
dent's president , Spallino , discharged Callahan by telling him to leave the
premises, we conclude that a determination of Rego 's supervisory status
need not be made to decide the merits of this case.
2 Unlike our dissenting colleague , we see no need to remand this case. As
we understand the Administrative Law Judge's finding, it must be based
either on his resolution of credibility against the testimony of Respondent's
witnesses that employee Callahan said he was going home , or on his view
witnesses concerning the conversation preceding
Callahan's discharge. However, this version of the
conversation does not constitute a resolution of two
crucial credibility issues raised by Respondent's and
Callahan's differing versions as to what occurred.
The record shows that Spallino, Rego, and Lough-
man all testified that Callahan, after being told by
Rego that he was to"spend the day working in the
warehouse, announced that "as soon as they finished
loading the truck he was going home." While
Callahan denied making this statement, Spallino
specifically testified that it was after Callahan made
this comment that he told Callahan that "in view of
his attitude he could leave right away."
The Administrative Law Judge noted Spallino's
testimony concerning Callahan's threat to leave and
Callahan's denial that he made such a statement, but
he did not mention that Rego and Loughman
substantiated Spallino's testimony and did not make
any credibility resolutions on the issue. I do not
believe that in the absence of such credibility
evaluations a finding that Callahan was discharged
for asserting a grievance rather than for insubordina-
tion is warranted.
The Administrative Law Judge also found, again
without making specific credibility resolutions, that
Callahan told Spallino he "wanted to know why he
was in the warehouse and Flynn was going out on
the truck where he would be getting more work time
than Callahan." On the basis of this finding he
concluded that Callahan was discharged for present-
ing a grievance he reasonably believed he had under
the contract. The record, however, is unclear as to
whether Callahan ever expressly referred to his
concern that Flynn might receive more hours when
voicing his complaint. Callahan's own testimony on
this point is vague and Spallino testified that he had
"no idea" why Callahan had refused his assignment.
Since what Callahan actually said may well be
determinative of whether or not he was engaging in
protected concerted activities, I believe the Adminis-
trative Law Judge erred in • reaching his above
conclusion of what Callahan said in this regard
that even if Callahan made that statement it was not the real reason for
Spallino's sending him home and discharging him. If this were not so, the
Administrative Law Judge could not have concluded, as he did , that "both
the conduct and explanation of President Spallino make it clear that
employee Callahan had been disciplined ... for presenting or protesting
directly to management a grievance he believed Se had under the collective
bargaining contract." Similarly , with respect to tl: reason why employee
Callahan questioned his work assignment, the Administrative Law Judge
found that President Spallino knew what the employee was concerned
about, and the preponderance of the evidence warrants this finding and
supports this conclusion . The failure of the Administrative Law Judge to
refer to other testimony is of no consequence , as it is well settled that the
Administrative Law Judge is not compelled to recite all evidence in the
record . Cf. United States v. Pierce Auto Lines, 327 U.S. 515. 529; Trumbull
Asphalt Co. of Delaware v. N.LRB., 314 F.2d 382 (C.A. 7, 1963), cert.
denied 374 U.S. 808, or to detail all conflicts of testimony , Bishop and
Malco, Inc., d/bla Walker's, 159 NLRB 1159, 1161.
208 NLRB No. 102
CRAY-BURKE COMPANY 709
without. discussing the evidence presented on, the
issue and making appropriate specific credibility
evaluations.3
In view of the Administrative Law Judge's failure
to discuss or make credibility resolutions with respect
to the conflicting versions of what was said on these
two crucial issues , I would remand the case to him
(1) for specific findings as to whether Callahan stated
that he was going to leave after the truck was loaded
and Spallino then told him that in view of his attitude
he could.go home immediately; (2) if Respondent's
version is credited, for a reevaluation of the evidence
as to whether Callahan was discharged for insubordi-
nation or for asserting a complaint about a work
assignment ; and (3) if it is found that Callahan was
discharged.for complaining about his assignment, for
a finding as to whether he specifically referred to his
concern that Flynn might receive more work.
Since I would remand the case for these threshold credibility
resolutions , I find it unnecessary at this time to reach the issue of whether,
assuming Callahan did mention his concern that Flynn might receive more
work time, such a statement was concerted activity .protected under Sec.
8(ax1) of the Act. , .
off and voluntarily quit his job, or alternatively was
justifiably discharged for refusing to carry out his job
assignment in the warehouse, and was not engaged in
concerted activity at the time.
The case was, tried in Springfield, Massachusetts; .on July
11, 1973. General ; Counsel and Respondent have filed
briefs.
Upon the entire, record in the case , including my
observation of the witnesses and consideration of the
briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Massachusetts corporation, with its
principal place of business and warehouse in Springfield,
Massachusetts, engaged in the wholesale, sale, and distrib-
ution of liquor, wine, beer, and related products.
Annually, Respondent receives products valued in excess
of $50,000 directly from points located outside Massachu-
setts.
Respondent is engaged, as it admitted , in commerce
within the meaning of Section 2(6) and (7) of the Act; and
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
DECISION
HERZEL H. E. PLAINE, Administrative Law Judge: The
question presented is whether Respondent discharged and
refused to reinstate employee Callahan, the Charging
Party, in violation of Section 8(axl)of the National Labor
Relations Act (the Act), because he engaged in protected
concerted activity under Section 7 of the Act by voicing or
presenting directly to the Respondent his claim of seniority
rights under the 'collective-bargaining contract governing
the employment.
The complaint was issued June 6, 1973, on a charge filed
April 25, 1973.
Under the applicable collective -bargaining contract
between General Teamsters Local 404 (the Union) and
Respondent, senior employees were entitled to preference
over juniors to available work within a 45-hour workweek.
Employee Callahan and fellow helpers on Respondent's
seniority list were given assignments on trucks or in the
warehouse, usually on a daily basis. On December 28,
1972, employee Callahan protested that he was being
denied his seniority preference and the possibility of more
hours of work when the employer put a junior helper on a
truck run and himself in the warehouse. Callahan claimed
he was sent home because of his protest ' and was later
informed he was discharged.
The Respondent claimed that employee Callahan walked
1 Shipper Rego, as well as President Spallino, was a supervisor within the
meaning of the Act. From the testimony, it appeared that be, was in charge
of the receiving and shipping operation, that included the movement of the
trucks and management of the warehouse, set starting times , set up the
loads, and decided which drivers and helpers , handled which loads and
worked in the warehouse . In the case at bar, shipper Rego designated
employee Flynn, rather than employee Callahan , to be the truck helper in
the incident discussed infra. Though Rego consulted with President
Spallino , and had no hiring or firing authority, the limitation did not detract
from the commitment to him by the employer of authority to responsibly
11. THE UNFAIR LABOR PRACTICES
A. Respondent's Business, Employees, and Union
Contract
Respondent is a wholesale distributor of liquor, wines,
and beer in and about Springfield , Massachusetts . Respon-
dent employs about 25 persons, according to Charles
Spallino, who is the company president and general
manager, and an admitted supervisor within the meaning
of the Act. Of, the total employees the majority are
salesmen and clerical employees, not covered by the
Union's contract (G.C. Exh . 2); and there were, in
December 1972, the time of concern in this case, nine
employees who were covered by the contract.
The covered employees were those involved in the
receiving, shipping, and delivery of merchandise, working
in Respondent's warehouse or on Respondent's delivery
trucks. They were Joseph Rego, the shipper, in charge of
receiving,` dispatching, and assigning the work of the other
men; assistant shipper LaPorte , who under the contract
classification terminology (G.C. Exh. 2, article XVIII), was
a-fork' truck 'operator and' warehouseman ; four truckdri-
vers; and three helpers, who worked on the trucks and in
the warehouse as assigned from day to day.' All were paid
on an hourly scale.
According to President Spallino, the shipper and
direct other employees in the interest of the employer, using his independent
judgment in the exercise of this authority . Section 2( 11) of the Act defines
the criteria for supervisory status (of which the foregoing are two) in the
disjunctive, Jas. H. Matthews and Co. v. N.LR.9., 354 F.2d 432,434 (C.A. 8,
1965), cert. denied 384 U.S. 1002, a can with useful parallels to the situation
here .. One of these is the unlikelihood that President Spallino, as general
manager of . the whole business , including sales and purchasing and the
supervision of 16 or more sales and clerical personnel, could provide
detailed supervision of the 9 regular employees plus temporaries engaged in
shipping, delivery, receiving, and warehousing without the assistance of a
(Continued)
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assistant shipper, who were regularly at the warehouse,
worked a 5-day week, Tuesday through Saturday (Monday
was not a.workday); the truckdrivers and the most senior
helper Mateski worked a regular 4-day week, Tuesday
'through Friday; and the two other helpers, Vincent
Callahan and Tom Flynn, were on daily call, given the
previous day, with a starting time that might vary from
time to time up to 9 a.m. All were on Respondent's
seniority list, under the terms of the union contract (article
III, item 1), each having worked more than 31 days. In this
connection, helper Callahan was senior to helper Flynn.
Article III, item 3, of the union contract provided that
preference would be given to employees in order of
seniority to the work available within an established
workweek of 45 hours. Hence, as President Spallino
explained, a senior employee had preference in obtaining
an aggregate of. more hours than his junior up to 45 hours
per week; and it was the obligation of the employer to see
that the junior employee did not get more hours per
workweek than his senior, otherwise, as Spallino said, the
employer had a grievance on its hands and liability to the
senior employee for lost hours of work. Consequently said
Spallino, while work would be assigned indiscriminately at
the beginning of the ' workweek, i.e., on Tuesday, by
Thursday, the employer would begin to watch seniority to
see that junior employees did not get more hours than
senior employees for that workweek. This contract obliga-
tion, and resultant company policy, was known about the
shop, as President Spallino and employee Callahan
testified.
President Spallino further testified that normally, as
between warehouse work and delivery work, the men on
delivery work got more hours per week than those working
at the warehouse; and employee Callahan testified that he
and the other employees preferred the delivery truck work
to warehouse work, because they usually worked more
hours and earned more money. Callahan gave as an
example his last day of work, December 27, 1973, when we
worked 10-3/4 hours on a truck, as compared to a previous
8 hours day in the warehouse.
B. Discharge of Employee Callahan
Employee Callahan had been employed by Respondent
since May 1970. He was a helper and also a truckdriver (he
had a class I truckdriver's license). When he performed as
helper he was paid $4.32 per hour, when he drove he was
paid $4.42 per hour, in keeping with the union contract
rates.
On Thursday, December 28, 1972, employees Callahan
and Flynn, who was Callahan's junior, were both on call
for work on notice given the previous day. When employee
Callahan arrived at the warehouse in the morning of
December 28 he noticed employee Flynn sitting in the
helper's seat of the cab of a loaded truck that was still in
supervisor, who in this case was Rego.
2 Rego phrased it in the past tense-how come Flynn went out on the
truck-on a claim that the truck with Flynn had left before 9 a.m., which
was Callahan's (and Loughman's) starting time that day. However
Loughman, who was Respondent 's witness, said he had reported in With
Callahan, and had (like Callahan) also seen Flynn before the truck that
the loading pit, with no driver in the driver' s seat . Callahan
reported to shipper Rego at the loading platform.
According to shipper Rego, he was ready to proceed with
loading the last truck to go out that day to be driven by
driver Loughman, but without a helper going along
because it was a half-load. Driver Loughman arrived at the
platform at the same time as Callahan . Rego directed both
men to load the truck, a}d they started loading.
Employee Callahan asked shipper Rego what he,
Callahan, would be doing that day. Driver Loughman
(who testified he didn 't hear all that was said) recalled
Rego saying, Callahan would not be going out on
Loughman's truck because the load didn 't warrant a
helper ; and Rego and Callahan agree that Rego said
Callahan would be working inside the warehouse that day..
Employee Callahan then asked shipper Rego , how come
employee Flynn was going2 out on delivery and he,
Callahan, was working in the warehouse?
Shipper Rego, by his own admission, evaded giving
Callahan a direct answer or explanation, repeating to
Callahan that he was working inside today and adding,
"I'll explain to you later. I'm loading this truck. When this
truck is loaded, I'll tell you why. I haven't got time now."
According to employee Callahan, shipper Rego, and
President Spallino , who was sitting at a desk a few feet
from where the truck loading and conversation was taking
place, Spallino got up from his desk and intervened in the
discussion. According to Callahan, Spallino told Rego he
didn't have to answer Callahan 's questions, and apparently
Rego moved away, out of hearing range of most of the
ensuing conversation between employee Callahan and
President Spallino.
President Spallino accused employee Callahan of trying
to run the business (though, as Spallino conceded, there
had been no previous incident or question of this nature
before involving Callahan); and Callahan replied, he was
not trying to run the business but wanted to know why he
was in the warehouse and Flynn was going out on the truck
where he would be getting more work time than Callahan.
Again, as shipper Rego did, President Spallino, by his own
admission, evaded giving , an explanation or direct answer
to Callahan's question, and told him only that his
assignment was at the warehouse, to help unload a freight
car; and in view of his attitude3 he didn't have to finish
loading the truck but could leave then. Callahan testified
he was ordered to go home in much stronger language; and
Rego, who said that Callahan had loaded between 50 and
75 cases on the truck, testified to hearing Spallino tell
Callahan to leave without completing the loading. Calla-
han went home.
Employee Callahan, who testified to a hitherto good
relationship with President Spallino in the 2-1/2 years of
his employment (confirmed by Spallino and Rego) and
attributed the rough treatment that morning to Spallino's
typical morning grouchiness , telephoned in that evening, as
carried him left Respondent 's place of business . It would therefore appear
that the truck with Flynn had not departed before 9 a.m. or before Callahan
raised the question regarding preference.
3 Spallino claimed that when Rego stalled giving Callahan an answer to
his question , Callahan said he was going to leave after he finished loading
the truck. Callahan denied saying this.
CRAY-BURKE COMPANY 711
was usual, for his assignment for the next day, Friday,
December 29. Shipper Rego told him there was no work
for the next day (that he was laid off, as Callahan testified).
Callahan called Rego again for his assignment on the
evening before the next -working day, which was in the
following , week, and this time Rego (in his words) told
Callahan he was all through. Callahan asked to talk to
President Spallino but Rego told him Spallino did not want
to talk with him.
President Spallino and Shipper Rego testified that
previously on Friday, December 29, they discussed
employee Callahan's call-in for work, and Spallino took
the position that Callahan had been given an assignment
on December 28, had refused it, had left the premises and
quit, and was therefore to be dropped from the seniority
list and not to be called or given work from then on. As
Rego testified, he therefore told Callahan he was all
through on the second call-in for an assignment , indeed, as
Callahan testified, told him he was fired.
C. Concluding Findings
1. Discharge for asserting grievance
President Spallino conceded that on December 28, after
his interruption of the Rego-Callahan discussion, he had
told employee Callahan to leave and had given him no
explanation of why employee Flynn, his junior, was sent
out on the truck (the preferred work that usually produced
more hours) while Callahan had been assigned to the
warehoitse,.though Callahan had asked shipper Rego why.4
President Spallino said he knew that employee Callahan
was concerned that the junior employee Flynn was taking
what Callahan thought was his job . However, said
Spallino, he was displeased with Callahan's questioning an
order, something he had not done before, and was upset
and concerned that questioning an order would affect
morale, though he admitted it had not happened before
and hasn't happened since.
Both the conduct and explanation of President Spallino
make clear that employee Callahan had been disciplined,
by being sent home and discharged , for presenting or
protesting directly to management a grievance he believed
he had under the collective-bargaining contract.
The right of direct presentation of a grievance by an
employee , without resort to his collective-bargaining
representative, is expressly reserved to the employee by the
first proviso of Section 9(a) of the Act , which protects the
right of the individual employee to present grievances to
his employer and to have them adjusted without interven-
tion of the bargaining representative, as long as the
adjustment is not inconsistent with the terms of the
4 The explanation that President Spallino and shipper Rego offered at
trial, though not to employee Callahan , was that a rush order for beer had
come in early in the morning of December 28, that the truck going in that
direction had not been scheduled to have a helper but needed one for the
additional order, and employee Flynn , who was due in a half-hour earlier
than Callahan , was assigned as the truck helper with instructions to come
back and finish his day in the warehouse. '
S The "grievance procedure" of the contract in this case, article XIV of
G.C. Exh . 2, which Respondent says was the procedure that employee
Callahan should have invoked , does not purport to eliminate the statutorily
recognized right of the- employee to make direct complaint or presentation
to the employer. The article , comprising three items, contains only two
collective-bargaining contract, provided further (second
proviso) that the bargaining representative has been given
an opportunity to be present at such adjustment . Black-
Clawson Co. v. International Association of Machinists, 313
F.2d 179, 185 (C.A..2,.1%2); J. A. Ferguson Construction
Co., 172 NLRB;1494, 1498 ( 1968).5
2. •.Concerted activities
Respondent argues that such individual voicing or
presentation of a grievance is not concerted activity within
the meaning and protection of Section 7 of the Act.
Therefore, says Respondent, Callahan's discharge was not
in violation of the Act.
The Board, with approval of the courts, has consistently
taken the position that the individual presentation of an
independent claim by the employee (as, for example, for
overtime) under a collective-bargaining contract is protect-
ed activity, "since the individual action so taken in
implementation of the collective-bargaining agreement is
but an extension of the concerted activity that gave rise to
the agreement," B and M Excavatin& Inc., 155 NLRB
1152, 1154 (1965), enfd 368 F.2d 624 (C.A. 9, 1966); New
York Trap Rock Corp., 148 NLRB 374, 375-376 (1964).
Such individual activity to enforce the provisions of a
collective-bargaining contract was deemed ' to be for
concerted purposes even in the absence of interest on the
part of the employee's fellow employees, N.LRB. v.
interboro Contractors, Inc., 388 F.2d 495, 500 (C.A. 2,
1967), upholding the Section 8(aXl) violation for discharge
of the complaining employee; and was likewise deemed to
be for concerted purposes where the employee did not
H. C.purport to act as spokesman of his fellow employeesj1969).*
Smith Construction Co., 174 NLRB 1173, 1174
Squarely in point with the facts in the case at bar was
N.LRB. v. Selwyn Shoe Mfg. Corp., 428 F.2d 217, 221
(C.A. 8, 1970), where the employee, who protested that a
less senior employee had been given work preference, was
discharged for claimed insubordination. The Board and
court found that the discharge was for vigorous presenta-
tion of his grievance by the employee acting alone, a
discharge held to be in violation of Section 8(aXl) of the
Act. The court observed that the rights secured by the
collective-bargaining contract, though personal to each
employee, are protected rights under Section 7 of the Act
because the collective-bargaining contract is the result of
concerted activities by the employees for their mutual aid
and protection. As the court said, the employer's unlawful
refusal to recognize the employee's right to submit the
grievance led to the clash that precipitated the discharge.
See also, in the same circuit, N.LR.B. v. Century
pertinent provisions (the third provision-item 2-is a no-strike clause), one
of which (item 3) provides that any dispute or grievance not filed or
processed within 10 days from the date it becomes known to the grievant
shall be considered waived; and the second of which (item 1) provides that
any dispute or grievance concerning interpretation , application or compli-
ance with the agreement not settled amicably between the employer and the
union business agent shall at either party's request be submitted to binding
arbitration . Nothing else is prescribed concerning the mode or method of
procedure, and items 3 and I of the article appear to be entirely consistent
with the grievant. the individual employee, making the complaint directly to
the employer as well as through the union representative (orally or in
writing, in either case).
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Broadcasting Corp., 419 F.2d 771, 780 (C.A. 8, 1969),
holding unlawful a discharge of an employee for claiming
overtime under the union contract, the court following the
Second Circuit opinion in Interboro Contractors, supra.
In addition to approval of the Board's view by the courts
of appeals of the three circuits cited (Second, Eighth, and
Ninth), at least two other circuits (Fifth and Sixth) have
added their approval. In N.L.R.B v. Bowman Transporta-
tion, Inc., 314 F.2d 497, 498 (C.A. 5, 1963), the court upheld
the Board in finding unlawful the discharge of an employee
who asserted under the union contract a grievance
regarding working conditions; and in N.LR.B. v. Halsey
W. Taylor Co., 342 F.2d 406, 408 (C.A. 6, 1965), where an
employee was fired for insubordination because he voiced
an opinion that a foreman, by working rather than
overseeing work, was depriving the employee and others of
overtime work, the discharge was held to have violated
Section 8(a)(1) of the Act on the ground that the employee
had the protected right to make the assertion as a matter of
concerted activity under Section 7 of the Act.
Respondent stresses the contrary view adopted by the
Third Circuit in N.L. R.B. v. Northern Metal Co., 440 F.2d
881 (C.A. 3, 1971) where, in a 2-1 split, a panel of the
circuit (reversing the Board) held that a single employee
pressing a demand for holiday pay, to which he deemed
himself entitled under the collective-bargaining agreement,
was not engaged in concerted protected activities under
Section 7 of the Act and was not protected by the Act from
discharge. The employee was a probationary employee, not
fully covered by the union contract, and claimed holiday
pay to which the regularly covered employees were
entitled. The majority of the court took the view that the
employee' s action in claiming the holiday pay was not
concerted activity with other employees, and that the
concept of the Board and of the Second Circuit in
Interboro Contractors, supra, viewing individual action to
enforce the provisions of a collective-bargaining contract
as concerted activity, was a fiction that the majority were
unwilling to adopt.
On the other hand, Circuit Judge Biggs, who dissented,
440 F.2d at 887-889, viewed the Board and the Second
Circuit Interboro Contractors interpretation as a sound
interpretation of Sections 7 and 8(a)(l) of the Act, because,
although an individual employee, in processing his com-
plaint based upon a contractual provision, might be
concerned primarily with accomplishing a result which will
benefit him personally, his success will redound to the
direct benefit of all employees similarly situated. Judge
Biggs referred with approval to, and quoted from, the
historical analysis of this issue by Circuit Judge Lay in
Illinois Ruan Transport Corp. v. N.L. R.B., 404 F.2d 274,
284-290 (C.A. 8, 1968) (dissenting opinion), whose view
later became the view of the Eighth Circuit in Selwyn Shoe,
supra, 428 F.2d at 219-221, 226. Judge Lay summarized:
6 The majority in Northern Metal relied upon an earlier Third Circuit
opinion in Mushroom Transportation Co v N LR. B. 330 F 2d 683 (C A 3,
1964), which held that an employee's mere "griping" conversations, not
looking toward any grievance or group action, unrelated to a right set forth
in a collective-bargaining agreement, was not concerted activity under
Section 7 protected by Section 8(a)(1); and also relied upon Indiana Gear
Works v N.LR B., 371 F.2d 273. 276 (C A 7, 1967), holding that an
employee's posting of cartoons protesting a small wage increase was not
"Where an individual employee asserts a right found in a
collective-bargaining agreement, it is reasonable to state be
is extending the terms protecting union activity," 404 F.2d
at 285.6
Respondent also cites the recent Fifth Circuit holding in
N.L.R.B. v. Buddies Supermarkets, 481 F.2d 714 (C.A. 5,
June 1973), where the court disagreed with a finding of
Section 8(a)(1) discharge on its view that the employee was
discharged solely because of his individual griping and
complaining (as the Third Circuit had found in Mushroom
Transportation, fn. 6, supra), not related to an existing
collective-bargaining agreement . While the court in
Buddies Supermarkets was critical of the Second Circuit
reasoning in Interboro Contractors and of Board reliance
upon it in this case, the court made clear it was
distinguishing the facts of the two cases, pointing out that
the activity of the employee in the case before it did not
arise in the framework of an attempt to enforce an existing
collective-bargaining contract, and that the court was not
repudiating the proposition that activity of a single
employee looking to enforce terms of a collective-bargain-
ing contract can be protected concerted activity.
Summarizing, it would appear that the weight of
authority and sound reason support the view that a single
employee voicing or presenting a grievance to the employer
under a collective-bargaining contract is engaged in
concerted activity within the meaning of Section 7 of the
Act. In protecting the employee against discharge because
of such activity, the Board and courts have said they are
not concerned with, and protection does not depend upon,
the merit or lack of merit of the employee's grievance, see
for example, N.L.R.B. v. Selwyn Shoe Mfg. Corp., supra,
428 F.2d 217, 221 (C.A. 8, 1970); N. L R. B. v. Halsey W.
Taylor Co., 342 F.2d 406, 408 (C.A. 6, 1965); State Wide
Painting and Decorating Co., 174 NLRB 5, 9 (1969).
Nevertheless it is useful to note, in the case at bar, that
employee Callahan's complaint to the employer, that the
chance to work more hours to which seniority entitled him
by contract was being taken away at the very moment he
complained, was a reasonable complaint in keeping with
the accepted interpretation of the contract, the circum-
stances apparent at the time, and the fact that truck work
normally provided more hours than warehouse work. The
employer's refusal to give Callahan an explanation suggests
that a valid answer may not have existed at the time and
that his complaint was well taken.? As the court noted in
N.L.R.B v. Interboro Contractors, Inc., supra at 500, "the
Board need not find the complaints to be meritorious in
order to hold the activity protected, but the fact that the
complaints were apparently reasonable does support the
conclusion that they were made for legitimate union
purposes and were not fabricated for personal motives."
By discharging employee Callahan for voicing or
presenting to Respondent on December 28, 1972, a
protected activity because there was no evidence of inducing or preparing
for group action to correct a grievance or complaint
7 Respondent' s claim , that employee Callahan was attempting to oust
management's prerogative by picking his own work assignment, is
unsupported by the facts and by the history, which , as Respondent
admitted , was devoid of any previous complaints by or against employee
Callahan on this or any subject
CRAY-BURKE COMPANY 713
grievance he reasonably believed he had under the
collective-bargaining contract, Respondent unlawfully
discharged Callahan because and while he engaged in
concerted activities within the meaning of Section 7 of the
Act. Respondent thereby violated Section 8(a)(1) of the
Act.
CONCLUSION OF LAW
By its discharge of an employee because he engaged in
concerted activities under Section 7 of the Act by voicing
or presenting to Respondent a grievance he reasonably
believed he had under the collective-bargaining contract,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act. The unfair labor
practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
personnel records and reports, and all other records
necessary to ascertain the backpay due under the terms of
this Order.
(c) Post in its office and warehouse in Springfield,
Massachusetts, copies of the attached notice marked
"Appendix."'I Immediately upon receipt of said notice, on
forms to be provided by the Regional Director for Region
I (Boston. Massachusetts), the Respondent shall cause the
copies to be signed by one of its authorized representatives
and posted, the posted copies to be maintained for a period
of 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 1. in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
It will be recommended that the Respondent:
(1) Cease and desist from its unfair labor practices, and
from in any like manner infringing upon the rights
guaranteed by Section 7 of the Act;
(2) Offer to reinstate employee Callahan with backpay
from the time of discharge, backpay to he computed on a
quarterly basis as set forth in F. W Woolworth Co., 90
NLRB 289 (19501,, approved in N.L.R.B. v. Seven-Up
Bottling Co., 344 U.S. 344 (1953), with interest at six
percent per annum as provided in Isis Plumbing & Heating
Co., 138 NLRB 716 (1962), approved in Philip Carey Mfg.
Co. v. N.L.R.B., 331 F.2d 720 (C.A. 6, 1964), cert. denied
379 U.S. 888; and
(3) Post the notices provided for herein.
Upon the foregoing findings of fact, conclusion of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
ORDERS
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging or otherwise disciplining an employee
who voices or presents directly to Respondent a grievance
under the collective-bargaining contract or otherwise
engages in concerted activities under Section 7 of the Act.
(b) In any like manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to employee Vincent Callahan immediate and
full reinstatement to his former job or, if the job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges; and
make him whole, in the manner set forth in the section of
the decision entitled "The Remedy," for any loss of
earnings incurred by him as a result of his discharge on
December 28, 1972.
(b) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records, timecards,
" In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board , the findings.
conclusions, recommendations, and 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 he
deemed waived for all purposes
9 In 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."
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 National Labor Relations Act,
ordered us to post this notice.
WF WILL NOT discharge or otherwise discipline you
because you voice or present to us directly a grievance
under the collective-bargaining contract, or because
you otherwise engage in concerted activities under
Section 7 of the National Labor Relations Act.
WE WILL NOT in any like manner interfere with your
right to engage in concerted or union activities, or to
refrain therefrom.
Because the Board found that we unlawfully discharged
employee Vincent Callahan on December 28, 1972,
because he had engaged in concerted activities under
Section 7 of the National Labor Relations Act,
WE WILL offer him his former or like job, and WE
WILL give him backpay with interest from the time of
his discharge.
CRAY-BURKE COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days its provisions may be directed to the Board's Office, 7th
from the date of posting and must not be altered , defaced, Floor, Bulfinch Building, 15 New Chardon Street, Boston,
or covered by any other material . Massachusetts 02114, Telephone 617-223-3300.
Any questions concerning this notice or compliance with