L. C. Cassidy & Son, Inc.

National Labor Relations Board - Board DecisionsOct 19, 1973

206 N.L.R.B. 486 (N.L.R.B. 1973)

486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD L. C. Cassidy & Son, Inc. and Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No. 135, a/w International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America. Case 25-CA-5307 October 19, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On May 25, 1973, Administrative Law Judge Ben- jamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and briefs, and the General Counsel filed cross-exceptions and 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 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent , L. C. Cassidy & Son, Inc., Indianapolis , Indiana , its officers , agents, successors, and assigns, shall take the action set forth in the said recommended Order. MEMBER KENNEDY , dissenting: I do not agree with my colleagues that Britton and McQueen engaged in protected concerted activity. In my view their conduct constituted insubordination. If they believed they were entitled to an hourly rate rather than a piece rate, they should have proceeded to perform the work in question and, in accordance with past practice, submitted a claim for an hourly wage. I would dismiss the complaint in its entirety. DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The charge in this case was filed on December 8, 1972.1 The 1 Dates are 1972 unless otherwise indicated. complaint was issued on January 30, 1973. The hearing was held in Indianapolis, Indiana, on March 8 and 9 and April 3 and 4, 1973. The complaint alleges Respondent violated Section 8(a)(3) and (1) of the Act by discharging Cecil Brit- ton on or about December 4. The principal issue litigated was Respondent's motive for discharging Britton. For the reasons set forth below, I find that Respondent did not violate Section 8(a)(3) but that it did violate Section 8(a)(1). Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, an Indiana corporation, is engaged in the insulation business in Indianapolis, among other places. During the year prior to issuance of the complaint it grossed more than $500,000 and received goods valued at more than $50,000 which were shipped directly to it in Indianapolis by suppliers located outside the State of Indiana. IL THE UNFAIR LABOR PRACTICES A. Facts 1. Background Cecil Britton was employed by Respondent as a batt insulation installer. In early 1972 Respondent's employees embarked on an abortive effort to seek representation by the Carpenters union. Britton was not the leader of the movement nor did he take a role more conspicuous than the other employees. The effort was dropped by the employees after a meeting with Donald Cassidy, Respondent's presi- dent, on March 20 at which Cassidy promised the employ- ees a raise and adjustment of some of their other grievances. At this meeting Britton was the first employee to speak up when Cassidy asked the men what was bothering them and carried on a large part, although not all, of the employees' side of the dialogue that ensued. Respondent classifies its insulation installers as operators and helpers. Operators are paid piece rates. Helpers are paid by the hour. Helpers advance to operator status when they develop sufficient skill. Britton was originally hired in the summer of 1970 as a helper. About 3 months later he was promoted to operator. He went to jail in June 1971. When he was released in September 1971 he returned to work. He was demoted to helper for a short time. However, for most, if not all, of 1972, and more importantly, on November 21, the last day he actually worked, he was an operator. Respondent, dispatches installers to jobs on trucks each day. The amont of compensation which the men assigned to the truck earn on any particular day depends on how much insulation is installed from that truck. If an operator is sent out by himself he receives all the money due for the insulation installed from the truck according to Respondent's piece rate schedule. If the truck is manned by 206 NLRB No. 52 L. C. CASSIDY & SON an operator and a helper, the helper's compensation figured on an hourly basis is deducted and the operator gets the balance. If two operators man the truck, they split the piece rate earnings 50-50. 2. Britton and McQueen fail to work On November 21 Cecil Britton was assigned to a truck with Donald McQueen, another operator. Their assignment sheet for the day listed three jobs, the first in Lebanon, Indiana. The Lebanon contract called for installation of insulation under the flooring and wrapping of pipes of a new house which was already occupied. The job was of more than routine interest to Respondent because the build- er with whom Respondent had contracted had complained vociferously about Respondent's being more than a month overdue on its promised completion date. When Britton and McQueen arrived in Lebanon, they discovered that they would have to work in a crawl space under the house in which their movements would be re- stricted. They concluded the job was so difficult that they would be inadequately compensated if they did it at piece rates. They decided to call the office and ask to be put on an hourly rate before beginning the work. They acted pur- suant to a part of Respondent's system for compensating operators whereby Respondent sometimes gives them hour- ly wages for nonproductive or semiproductive periods which are not the operators' fault. Most commonly, this policy is applied to travel time. In those, and similar, instan- ces, operators make a notation on their daily assignment sheets that they are requesting hourly wages for so many minutes or hours when they turn the sheets in at the end of the day, and Respondent subsequently allows or disallows the claim . On occasion , a determination is made by Respon- dent before installers are sent out that a particular job is so difficult compensation at piece rates would be unfair. In that case, a notation that hourly compensation at piece rates made on the assignment sheet before the installers leave for the job. No situation ever arose prior to November 21 simi- lar to what happened with Britton and McQueen that day, i.e., operators dispatched to a job at piece rates who decided after they arrived they wanted Respondent to agree to hour- ly wages before they would begin to do the work. Britton made the call to the office. He spoke to David Leaman, Respondent's dispatcher. He explained the situa- tion to Leaman . He asked Leaman to put McQueen and himself on hourly compensation. Leaman said that Robert Cassidy, Respondent's vice president and the official who would have to approve the change, was not available. Lea- man told Britton he would check with Cassidy. He told Britton to check with him later about the decision. He in- structed Britton, in the meantime, to pull off the Lebanon job and go on to his and McQueen 's second assignment. Britton and McQueen did so. At about this time, Donald Cassidy happened to come into the dispatcher's office. Leaman told him that McQueen and Britton had refused to do the Lebanon job for piece rates and were demanding to be put on hourly. Cassidy relayed this information to his brother, Robert. One of Respondent's field supervisors , Robert Hoag , was sent to inspect the Lebanon job. He reported by radio that the job 487 was not difficult enough'to justify hourly wages. He was instructed to bring Britton and McQueen back to the shop. However, he was unable to locate them. On the basis of this information and after discussions among Leaman and the Cassidys, Robert Cassidy, the official with immediate res- ponsibility for such things as hiring, firing, and disciplining employees, decided to suspend Britton and McQueen for 3 days for insubordination. In the meantime, Britton and McQueen were unable to find their second assignment because the map with which they had been provided was faulty. After wandering around for several hours, they returned to the office on their own volition without first calling in to see whether a decision had been reached on the Lebanon job. They arrived sometime between 12:30 and 1 p.m. They clocked out and left for the day after a few harsh words with Leaman, principally about the faulty map. After they had gone, Robert Cassidy reached his decision to discipline them. He told Leaman to lay them off the next morning until Monday, November 27. When Britton and McQueen arrived for work on Wed- nesday morning, November 22, they found no daily work sheet prepared for them and their timecards gone from the rack. When they asked why, Fred Hackett, Respondent's chief field supervisor, told them they would have to wait for Leaman to arrive. He told Britton he was not sure but he thought the trouble was due to the fact he and McQueen had done no work the day before. When Leaman arrived at 7:30 a.m., he told Britton and McQueen they were laid off until Monday on Robert Cassidy's orders. When they asked why, he told them they would have to ask Cassidy. Britton and McQueen left without seeing Cassidy. Later that morn- ing, McQueen contacted Cassidy by telephone. (I do not credit Britton's testimony that he and McQueen had a face- to-face confrontation with Cassidy that morning. Neither McQueen nor Cassidy testified to any such incident.) Cassi- dy told McQueen he and Britton had been laid off because they had refused to-do the Lebanon job and Cassidy was angry because their truck had not made any money the day before. 3. Britton and McQueen engage in union activities When Britton returned home on the morning of Novem- ber 22, he too tried to reach Robert Cassidy by telephone but without success. He next telephoned the office of the Charging Party and spoke to an organizer . After Britton explained what had happened, the organizer agreed to come to Britton's home . Button then telephoned McQueen and discussed the situation. When McQueen said he was think- ing of quitting, Britton told McQueen that he had contacted the Teamsters and asked McQueen if he would not rather talk to the union man first. McQueen agreed . When two of the Charging Party's organizers arrived at his home, Britton told them McQueen also wanted to talk to them. The organ- izers and Britton picked up McQueen at his home. The organizers then took Britton and McQueen to lunch. Dur- ing the lunch , the organizers explained the techniques of organizing to Britton and McQueen . They had Britton and McQueen sign authorization cards. They gave Britton and McQueen blank authorization cards to be distributed among Respondent 's other employees . When the organizers 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the two installers parted, the organizers carried with them Britton's and McQueen's signed authorization cards; Britton and McQueen each carried with them a number of blank cards. When Britton returned home, he put the cards in his possession on top of his refrigerator and did not touch them thereafter. McQueen returned to work on Monday, Novem- ber 27, when his 3-day layoff was up. He began soliciting other employees to sign up with the Charging Party. A total of 18 or 19 cards were executed by Respondent's employees. All but three were obtained by McQueen himself. One was obtained by an employee who is not named in the record. Two were obtained by Britton from employees to whom McQueen had given a blank card. Britton visited the homes of two such employees during the week of November 27. He urged them to sign the cards they had. They did so and gave the executed cards to Britton. Britton gave them to another employee, who gave them to McQueen, who turned them in to the Charging Party. In addition, Britton attended two union meetings between November 22 and December 4. Using the cards obtained in this manner as its showing of interest, the Charging Party filed a petition for an election among a unit of Respondent's Indianapolis employees on December 6 in Case 25-RC-5216. A hearing was held on January 24,1973. The Regional Director issued his Decision and Direction of Election on February 12, 1973. Since the Charging Party had, on December 8, filed a request to pro- ceed despite its charge of unfair labor practices in this case, an election was held on March 12, 1973. The results were indecisive. A ballot cast by Britton was among the 9 chal- lenged ballots which are determinative. 4. Britton is discharged Britton did not return to work on Monday, November 27. Instead, he telephoned Robert Cassidy and asked to be permitted to take the week's vacation he had coming to him. Despite a rule that installers may not take their vacations during Respondent's busy season, which runs from Septem- ber through December, Cassidy reluctantly agreed. On Wednesday, November 29, Cassidy reviewed Britton's personnel file. He weighed Button's record of at- tendance and promptness, his production record, his atti- tude as exemplified by various incidents memorialized in the file, the fact that he had been jailed for 3 months in 1971, and his and McQueen's refusal to do the Lebanon job on November 21. He decided to discharge Britton when Brit- ton returned to work at the end of his vacation. On Friday, December 1, he memorialized this decision in a memoran- dum to Button's file which reads: "Because of very poor attendance record, poor attitude [Cecil Britton's] employ- ment is terminated as of this date." He also instructed Lea- man to discharge Britton when he reported for work. Britton picked up his vacation paycheck on December 1. The record does not reveal whether Britton came in that day before or after Leaman received his instructions from Cassi- dy. In any event, Leaman did not tell Britton on December 1 that Cassidy had decided to discharge him. Britton reported for work on the morning of Monday, December 4. Once again, there was no work assignment for him and his timecard was not in the rack. While he waited in the lobby adjacent to the, dispatcher's office for Leaman to arrive, he participated in a conversation among a group of employees about the organizing campaign. McQueen was also present. McQueen asked an employee named Harold Short to sign an authorization card. Short asked McQueen to give him a card and let him take it home to read it before he signed. McQueen, suspicious of Short's motives, told Short it would only take him a few seconds to read the card, understand it, and sign it. Britton broke in. He said to Short, "Look, why don't you go ahead and sign the card. If ev- erything goes well, then you will want to get on the band- wagon but you are not willing to help." Another employee said that a new employee named Staton had signed a card. Staton protested that he had not. Britton asked him why not. Staton said because he did not want to lose his job. Fred Hackett was in the dispatcher's office during this conversa- tion. The dispatcher's office is separated from the lobby by a counter and glass partition in which there is a window. Hackett overheard the conversation. A few minutes later, Leaman arrived. Britton asked Lea- man where his timecard was as Leaman headed into his office. Britton followed Leaman into the office. Leaman said, "Britton, I am going to tell you like they told me to tell you." Britton said, "They, who?" Leaman said, "Bob and Don." Britton said, "What did they tell you?" Leaman said, "They told me to tell you that when your vacation was up you were fired." Britton said, "For what?" Leaman said, "I don't know." Britton said, "Well, now, when is my vacation over?" Leaman said, "I don't know when your 'vacation started and I don't know when it ends." Once again, Britton left the office without speaking to either of the Cassidys.-Britton contacted Robert Cassidy by telephone about 10 days later. Britton's primary concern at that time was a claim for money in lieu of some-unused sick leave he had coming to him when he was discharged. Cassi- dy said he had no money coming to him on that basis. Britton then asked why he had been discharged. Cassidy refused to discuss the subject. B. Analysis and Conclusions 1. Discharge for union activities The General Counsel tried this case on the theory that Respondent's ostensible reasons for discharging Britton were a pretext and that its real reason was its displeasure with his union activities. This approach, of course, has im- plicit in it the threshold question of company knowledge of Britton's union activities. Here, the General Counsel's theo- ry has three alternative prongs. The General Counsel's primary contention is that Re- spondent learned of Button's role in the Teamsters organiz- ing campaign when Fred Hackett overheard what Britton said to Short and Staton on the morning of December 4 and only then decided to discharge him. Britton testified that 40 minutes elapsed between Britton's arrival in the office on December 4, when he discovered his timecard missing from L. C. CASSIDY & SON 489 the rack and Hackett told him to wait for Leaman, and Leaman's arrival. The General Counsel explains the ab- sence of the, timecard as indicating only that Respondent wanted to talk to Britton, not that the decision had already been made to discharge him. The General Counsel's expla- nation of the fact that, by Britton's own account of what ,happened, Leaman discharged Britton by telling Britton he was relaying a message from the Cassidys before Leaman talked to Hackett is that there was ample time for communi- cation between any and all of the parties. However, there is no way to explain away the memorandum in Britton's per- sonnel file dated December 1 which records Robert Cassidy's decision to discharge, Britton short of finding that Cassidy engaged in forgery after the events of December, 4. There is nothing in the record which would justify such an inference. I credit both the memorandum and Robert Cassidy's uncorroborated testimony 2 that he reviewed Britton's file and made his decision on November 29. There- fore, I reject the General Counsel 's first basis for contending that Respondent knew, at the time the decision to discharge was made, of the union activities Britton engaged in after he was laid off on November 22 and before he was dis- charged on December 4. The General Counsel's first fallback position on company knowledge is the small plant doctrine . It will not wash either. Respondent has some 30 to 35 employees in India- napolis. However, they do not work side by side in a "small plant." Rather, the only occasion they come together, and that but fleetingly, is when they show up in the morning to get their assignments for the day . They do not, as a general rule, come together at the end of the day, for there is no specific time at which they quit working and return their trucks to the shop. Moreover, the activities Britton engaged in, once he had lunched with the union organizers on De- cember 4, were not so widespread or notorious that they would fall within the rationale of the small plant doctrine. Cf. Santa Fe Drilling Company, 180 NLRB 1049. Therefore, I reject the small plant doctrine as a basis for finding that Respondent knew, at the time the decision to discharge was made, of the union activities Britton engaged in after he was laid off and before he was discharged. The General Counsel's position of last resort on company knowledge is that the union activities which Respondent had knowledge of were those Britton engaged in early in 1972 at the time of the abortive effort to bring the Carpen- ters union into Respondent's Indianapolis facility. Under 2 When the hearing opened on March 8, 1973, the only allegation of a Sec. 8(a)(1) violation in the complaint was the discharge of Button When the hearing resumed on April 3, 1973, after a hiatus of more than 3 weeks, I granted the General Counsel's motion to amend the complaint to allege that Respondent violated Section 8(a)(1) when Robert Cassidy, on or about Sep- tember 19, 1972, threatened to close Respondent 's Indianapolis facility. In support of this allegation , the General Counsel called Joseph Patchon. Pat- chon testified that, when he was hired in September, Robert Cassidy told him the facility was nonunion and, "if the union gets in here we will close the place down ." Cassidy admitted hiring Patchon but denied making any such threat . Cassidy's frank admission of his reason for discharging Britton, under circumstances, as set forth in the section entitled "Respondent's motive for discharging Britton" below , which would have tempted a venal man to shade his testimony, convinced me of his honesty. 1, therefore , credit him over Patchon and find that he did not make the threat which Patchon attributed to him. this theory, the problem ceases to be one of knowledge but, rather, one of motivation, for there is no dispute that Don- ald Cassidy observed Britton's role at the March 20 meet- ing. But speaking out boldly at that, meeting was the only thing Britton did in that period which could be character- ized as a union activity that distinguished him from other employees. Even if the record justified an inference that Donald'Cassidy especially resented Britton's outspokenness on March 20, which it does not, there is no evidence that it caused Respondent to take any action against Britton at that time. A finding that knowledge of union activities in March underlay restribution visited on Britton in Decem- ber, thus rendering all the derogatory information in Britton's personnel file as well as the events of November 21 a pretext masking a discharge for union activities, would be absurd. Therefore, I reject the General Counsel 's conten- tion that Respondent's knowledge of Britton's activities at the time of the union activity in early 1972 meets the re- quirement that the General Counsel prove company knowl- edge of union activities before the question of whether Respondent's ostensible reasons for discharge are a pretext arises in an 8(a)(3) case. Having found that the General Counsel has failed to prove company knowledge of Britton's union activities, I find Respondent's stated reasons for discharging him were its real reasons and not' a pretext. 2. Respondent's motive for discharging Britton In the presentation of his case in chief, the General Coun- sel called Robert Cassidy. After taking him through the events of November 21 through December 4, counsel asked Cassidy why he had discharged Cecil Britton. Cassidy re- plied that he had been motivated by the record of "all the absenteeism, all tardiness, bad production, attitude, his rec- ord of arrests and time off because. of being in jail" which he had found when he reviewed Britton's personnel file. In view of Cassidy's admissions that he had only undertaken a review of the file after the Lebanon job incident, his conse- quent decision to suspend Britton and McQueen for 3 days as a disciplinary measure, and Britton's subsequent request to stay away from work for an additional week, I asked Cassidy if he would have discharged Britton if Button had not participated, in concert with McQueen, in a refusal to work on November 21 until his piece rate wages were changed to hourly wages. Cassidy replied that he would not. I then suggested to counsel that, at least insofar as the 8(a)(1) allegation in the complaint was concerned, the issue was whether Button and McQueen had engaged in a pro- tected, concerted activity when they refused to work in the context of a dispute over wages, the issue discussed in the section entitled "Discharge -for protected, concerted activi- ties" below. Respondent also called Cassidy as a witness in the presen- tation of its case in chief. On the stated assumption that Cassidy had misunderstood my question (a real possibility at that stage of the hearing), counsel for Respondent again took Cassidy through the events leading up to his decision to discharge Britton and again asked the crucial question as to his motive. Once again, Cassidy frankly admitted that Button's participation on November 21, along with Mc- 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Queen, in the Lebanon incident formed part of his reason for discharging Britton. Cassidy made this admission with full knowledge of the significance of his answer. Therefore, I find Respondent was motivated to discharge Britton, at least in substantial part, by the fact that it viewed the Leba- non incident on November 21 as a refusal by Britton and McQueen to work until their piece rate wages were changed to hourly wages. 3. Discharge for protected, concerted activities hat Britton and McQueen acted in concert at the Leba- non job on November 21 is obvious. Therefore, the issue is whether what they did in concert was protected. The answer is found, I think, in Far-Best, Inc., 181 NLRB 211, a case which, while not on all fours with this one, comes closest to it on its facts. There, one Eagins was discharged by one Urquhart. Miller, a union steward, played a role not unlike Leaman's in this case. Survillion was a rank-and-file em- ployee on the night shift. The Board adopted Trial Examin- er 3 William W. Kapell's conclusion that Eagins' discharge had not violated Section 8(a)(1) of the Act even though "the evidence establishes that Eagins joined and associated him- self with his fellow-employees in presenting on his and their behalf their agreed upon refusal to perform the disputed work [cleaning an underground storage tank] unless com- pensated at a higher rate of pay." Administrative Law Judge Kapell reasoned thus: The collective-bargaining agreement in effect be- tween the, Union and Respondent covered the catego- ries of employees but did not define or limit the nature of their work. I find, contrary to the General Counsel, that the contract covered the employees involved here- in, and subjected them to its provisions. The fact that the disputed work was unusual and infrequently per- formed did not preclude it from being subject the terms of the contract, which provided that the employer could discharge or discipline employees for engaging in a strike unless a grievance was filed timely. It is undis- puted that no such grievance was ever filed. It also appears that the employees were ordered to perform the work during regular hours at regular pay rates, and that past practices reflect that overtime rates were paid for the disputed work only when performed during overtime. The refusal to clean the tank was a concerted refusal to perform certain work, but was not protected by the Act in view of the pertinent provisions of the union contract. I, therefore, conclude that Eagins' con- duct provided sufficient cause to warrant his discharge. Morver, regardless of whether, the refusal was a strike within the meaning of the Act or contract, it clearly was a refusal to obey an order and constituted insubordina- tion, and an attempt to dictate the terms and condi- tions of employment. The employees, however, were disciplined only to the extent of being laid off for the balance of the day to afford them time to reconsider their position. Thus, the resolution of the matter was deferred until the following morning when it would be 3 The title "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. discussed further. However, when it was'brought to Urquhart's attention that afternoon by Miller that Eag- ins had falsely informed Survillion that he%had been discharged, he decided to fire Eagins and did so the following morning. Urquhart predicated the discharge upon Eagins' failure to clean the office on October 3, his refusal to clean the tank, and his untruthful state- ment to Survilhon that he had been fired, thereby at- tempting to disrupt the night shift. The last of these grounds, regardless of what preceded it, was obviously unrelated to any protected employee right of Eagins and provided sufficient cause to warrant his discharge. Here, Respondent has raised both the contract and the insubordination elements relied on by the Board in Far- Best. Both are distinguishable. Respondent has recognized a Grievance Committee of its employees for a number of years. The committee was held by the Regional Director to be a labor organization within the meaning of the Act in Case 25-RC-5216. Respondent's written "company policy" relects some agreements which have, in the past, been worked out between Respondent and the committee. It is unnecessary to decide whether, as urged by Respondent, this document is a collective-bargaining agreement in a technical sense. The significant fact about it is that it contains nothing even remotely resembling a no- strike clause. Therefore, Britton, unlike Eagins, did not vio- late a contractual no-strike provision. As to Administrative Law Judge Kapell's "moreover," the act which Respondent claims as insubordination justify- ing the discharge of Britton is the very concerted act for which he was discharged. In Eagins' case, the Board relied on an act subsequent to his concerted claim for more wages as justifying his discharge because it "was obviously unre- lated to any protected employee right of Eagins." Thus this case must turn not on whether Britton's failure to do the Lebanon job can be characterized as an act of "insubordi- nation" but whether it can be characterized as the exercise of a "protected employee right." When Britton and McQueen took the position on the morning of November 21 that they did not want to do the Lebanon job unless and until Respondent agreed to pay them by the hour instead of piece rates, they were attempt- ing to negotiate with Respondent about their wages. The fact that Respondent's company policy includes its piece rate schedule does not make Britton and McQueen guilty of violating a "collective-bargaining agreement" by trying to force Respondent unilaterally to change it, for authoriza- tion of hourly wages for time consuming jobs prior to em- ployees' undertaking those jobs was part of Respondent's existing piece rate system. The fact that the situation which arose on the morning of November 21 was unique in that employees had never before arrived at a job and then asked to be put on hourly wages before starting to do the work also avails Respondent nothing. Respondent's piece rate system did not contemplate that situation. All Britton and Mc- Queen were asking was that Respondent give there a ruling on the difficulty of the work. The fact that Britton stated their position to Leaman in terms of not starting until they got a ruling in their favor simply emphasizes the fact that they were seeking to bargain with Respondent over a ques- tion relating to compensation in a situation not previously L. C. CASSIDY & SON 491 resolved between Respondent and its employees. The notion that employees have a right collectively to negotiate with their employer about their wages is the Act's very reason for being. No right can be said to be more protected than that one. Since, therefore, Britton did not violate a no-strike clause and since the concerted activity he engaged in on November 21 was an exercise of employees' protected right to bargain over wages, I find that Respon- dent violated Section 8(a)(1) of the Act when it discharged him on December 4, 1972, for failing to do the Lebanon job on November 21. Bob Henry Dodge, Inc., 203 NLRB No. 1, and cases cited therein. Since Respondent's reason for dis- charging Cecil Britton was unrelated to his union activities or the union activities of any other person, I find that Re- spondent did not violate Section 8(a)(3). Upon the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. L. C. Cassidy & Son, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2.' Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No. 135, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Cecil Britton on December 4, 1972, for engaging in a protected, concerted act, Respondent has vio- lated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commercewithin the meaning of Section 2(6) and (7) of the Act. 5. The allegation of the complaint that Respondent vio- lated Section 8(a)(3) of the Act by discharging Cecil Britton has not been sustained. 6. The allegation of the complaint that Respondent vio- lated Section 8(a)(1) of the Act on or about September 19, 1972, by threatening to close its Indianapolis facility has not been sustained. THE REMEDY In order to effectuate the policies of the Act, it is neces- sary that Respondent be ordered to cease and desist from the unfair labor practices found, remedy it, and post the usual notice. I will, therefore, recommend Respondent be ordered to reinstate Cecil Britton and pay him backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Because of Respondent's proclivity for committing un- fair labor practices as demonstrated in L. C. Cassidy & Son, Inc., 171 NLRB 951, enfd. as modified 415 F.2d 1358 (C.A. 7, 1969), I will recommend a broad rather than a narrow order. Upon the basis of the foregoing findings of fact , conclu- sions of law, and the entire record in this case , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER4 L. C. Cassidy & Son, Inc., Indianapolis, Indiana, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees for engaging in protected, concerted activities. (b) In any manner interfering with, restraining, or coerc- ing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Cecil Britton immediate and full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any earnings he lost, plus interest, as a result of his discharge on December 4, 1972. (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, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its facility in Indianapolis, Indiana, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's author- ized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 25, in wnt- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges Respondent violated Section 8(a)(3) of the Act and insofar as it alleges Respondent violated Section 8(a)(1) of the Act on or about September 19, 1972, by threatening to close its Indianapolis facility. 4In the event no exceptions are filed as provided by 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 5 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found , after a trial, that we violated Federal law by discharging,Cecil Brit- ton for attempting to bargain with us collectively about his wages, we hereby notify you that: The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join , or help unions To bargain collectively through a representative, of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT discharge you for engaging in protected concerted activities. WE WILL NOT, in any manner, interfere with you or attempt to restrain or coerce you in the exercise of the above rights. WE WILL offer Cecil Britton immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position , without prejudice to his seniority or other rights and privileges, and make him whole for any earnings he lost, plus interest , as a result of his discharge on December, 4, 1972. Dated By L. C. CASSIDY & SON, INC. (Employer) (Representative) (Title) This is, an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 614 ISTA Center , 150 West Market St., Indianapolis , Indiana 46204, Telephone 317-633-8921.