National Wax Co.

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 1064 (N.L.R.B. 1980)

1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Wax Company and Lem Stephany. Case 13-CA-18356 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE April 18, 1980, Administrative Law Judge David P. McDonald issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Coun- sel filed a brief in answer to Respondent's excep- tions. 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, find- ings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge concluded that Respondent's discharge of employee Lem Stephany violated Section 8(a)(l) of the Act. He found that Stephany's discharge was partially a result of his request for a merit wage increase for himself and partially for intolerable and insubordinate behavior. Finding that Stephany's efforts to procure a merit wage increase were of common interest to all em- ployees and would have a collective benefit for all employees, the Administrative Law Judge held that Stephany's actions constituted concerted activ- ity protected by Section 7 of the Act. Therefore, he found Respondent's discharge of Stephany to be unlawful. Respondent excepts to the Administra- tive Law Judge's conclusions. We find merit in these exceptions. In early July 1978, Stephany met with Gregory Latiak, Respondent's superintendent, and Edward Hayes, Respondent's controller, to discuss a merit wage increase which Stephany believed had been promised to him. Hayes responded that while he was receptive to a request for a raise and would consider it in the future, for the present, Stephany had not yet proven himself to be competent enough to warrant an increase. Latiak and Hayes explained to Stephany that the increase he sought was a merit increase to be given only after Ste- phany demonstrated he knew his job and was per- forming it well. Stephany, thereafter, on several occasions, apparently renewed his request for a raise but, as found by the Administrative Law Judge, he went beyond reasonable efforts in that he 251 NLRB No. 147 ignored the answers given and continued to harass Respondent by repeating the question. Under the Act, Respondent could discharge Ste- phany for good cause, or even no cause, so long as the discharge was not motivated by Stephany's ex- ercise of rights guaranteed by Section 7 of the Act. The issue in this case is whether Stephany's repeat- ed endeavors to procure a merit wage increase for himself constituted protected concerted activity. Viewing the evidence in a light most favorable to the General Counsel,' we are nevertheless com- pelled to conclude, contrary to the Administrative Law Judge, that Stephany's endeavors were indi- vidual, as opposed to concerted, activity, and that Respondent's discharge of Stephany was therefore lawful. In order for activity to be protected by the Act, it must be concerted in nature. In the present case, Stephany's complaint was an individual one. He sought a wage increase only for himself. His re- quests were predicated not on a collective-bargain- ing agreement but on a promise he claimed had been made to him. His endeavors were commenced without prior support by fellow workers and no evidence was introduced to show that Stephany ever even attempted to communicate with or in- volve any other employees in the matter protested. In certain circumstances, we have found that "ostensibly individual activity may in fact be con- certed activity if it directly involves the further- ance of rights which inure to the benefits of fellow employees." Anco Insulations, Inc., 247 NLRB No. 81 (1980). See also Alleluia Cushion Co., Inc., 221 NLRB 999 (1975). Any indirect relationship to such rights of other employees, however, is too remote to turn a personal protest into a concerted protest. See Anco Insulations, Inc., supra; Tabernacle Community Hospital & Health Center, 233 NLRB 1425 (1977). In the instant case, the General Coun- sel submits that Stephany was complaining of a matter of common interest to all employees and that his actions would have a "collective rippling effect" on his fellow employees. In this regard, the record discloses that Respond- ent did, on occasion, grant merit wage increases above the contract rate but that the collective-bar- gaining agreement did not govern the method by which the employees were selected for such in- We note that, despite substantially conflicting testimony regarding important matters in this case, the Administrative Law Judge failed to make specific credibility resolutions Fr example, there is an unresolved conflict of testimony as to what was said by the persons involved at the time of Stephany's discharge However, as we have concluded that. viewing the evidence in a light mst favorable to the General Counsel, a dismissal of the cormplaint is nonetheless warranted, the Administrative l.as Judge's failure to resolve credibility ciflicts has had no impact on this case. NATIONAL WAXr COMPANY 1065 creases. No evidence was offered to show that Re- spondent adhered to any specific criteria or re- quirements in determining which employees re- ceived merit wage increases. Rather, the record re- veals that Respondent's decisions concerning merit wage increases above the contract rates were made on an individual, case-by-case basis. Therefore, even if Stephany had been successful in his pursuit, there is insufficient evidence upon which to con- clude that Respondent would have been compelled to alter the wage structure of any other employee. Furthermore, it is clear that Stephany was not pro- testing the general operation or effects of Respond- ent's method of granting merit wage increases. The evidence thus fails to show that Stephany's individ- ual actions directly involved the furtherance of any right which would inure to the benefit of any other employee. The present case is therefore distinguishable from Hansen Chevrolet, 237 NLRB 584 (1978), and Fairmont Hotel Company, 230 NLRB 874 (1977), the cases relied on by the Administrative Law Judge and the General Counsel. In Hansen Chevro- let, an individual employee's request for a wage in- crease was found to be concerted activity because there was a uniform pay system which would have been impracticable, if not impossible, to change for one employee without changing for every employ- ee. Hansen Chevrolet, 237 NLRB at 590. A direct relationship between individual activity and benefit to the rights of other employees was thus clearly proven. In Fairmont Hotel Company, an individual em- ployee directed certain requests and complaints to his employer. The employee's actions constituted concerted activity because the requests and com- plaints were pursuant to requests from other em- ployees and related to topics of common interest and concern to all rank-and-file employees. Fair- mont Hotel Company, 230 NLRB at 878. In the present case, however, Stephany was not acting on the behalf of any other employee and, as shown above, his endeavors, even if successful, would not directly relate to or advance the likelihood of merit wage increases for any other employee. Therefore, for the reasons set forth above, we conclude that Stephany's acts in attempting to secure a merit wage increase for himself did not constitute concerted activity protected by Section 7 of the Act. We shall therefore dismiss the com- plaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE DAVID P. McDONALD, Administrative Law Judge: This matter was heard by me in Chicago, Illinois, on Tuesday, May 29, 1979. On February 21, 1979. the Re- gional Director for Region 13 of the National Labor Re- lations Board issued a complaint and notice of hearing, based upon an unfair labor practice charge filed on Janu- ary 8, 1979, by Lem Stephany, an individual, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act.' All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-ex- amine witnesses, and to file briefs. Based upon the entire record, the briefs filed on behalf of the parties, and my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION At all times material National Wax Company, herein called Respondent, has been a corporation duly orga- nized under and existing by virtue of the laws of the State of Illinois. It has maintained a headquarters and place of business at 3650 Touchy Avenue, Skokie, Illi- nois, for the purpose of engaging in the manufacture and distribution of wax. During the past calendar year or fiscal representative period, Respondent, in the course and conduct of its business operations, purchased and re- ceived materials valued in excess of $50,000 which were shipped directly from points outside of the State of Illi- nois and derived gross revenues in excess of $50,000 from the interstate sales of the wax. Therefore, I find, as admitted by the answer, that at all times material, Re- spondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION At all times material the Miscellaneous Warehouse- men, Airline, Automotive Parts, Service, Tire and Rental, Chemical and Petroleum, Ice, Paper and Related Clerical and Production Employees Union, Local 781, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, has been a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICE A. The Theory of the Case The General Counsel contends that Respondent violat- ed Section 8(a)(1) of the Act when it discharged Lem Stephany allegedly based on the following reasons: ' Unless otherwise stated, all dales occurred in 1978 NATIONAL WAX COMPANY 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (I) He requested permission to go to the medical clinic pursuant to article XXII of the collective-bargaining agreement. (2) He sought higher wages while invoking the assist- ance of the Union. (3) He believed he was organizing other employees to seek higher wages. Respondent contends that Stephany was given permis- sion to obtain medical attention at the clinic, that he was not engaging in activities for and on behalf of others, but on behalf of himself. Therefore, his conduct cannot be classified as concerted activity and thus is unprotected. In fact, Respondent argues that Stephany was discharged for intolerable and insubordinate behavior on August 3, 1978. B. Background The Respondent processes and distributes wax which is a derivative of crude oil. The wax arrives primarily as a bulk liquid in railroad tank cars which range in size from 10,000 to 29,000 gallons. In order to transfer the wax it is necessary to heat it with steam. After it is com- pletely melted it is transferred through a series of pipes and pumps into one of the tanks in the tank farm. Lem Stephany was hired on April 4, 1978. His duties consisted of hooking steam pipes to tank cars, melting the wax in the railroad tank cars, and pumping it inside to the storage room. Before he started working Stephany was interviewed by Gregory Latiak, Respondent's plant superintendent, who explained that the first 90 days was considered a training period with a starting salary of $4.65 per hour.2 He explained that the union contract provided for a wage increase in 90 days.3 Stephany was of the impression that after 90 days, if his work were sat- isfactory, he would receive a 60-cent raise for working outside on the railroad, flocking wax, scraping spilled wax, and filling cartons. Some workers received wages which were higher than the agreed minimum amount contained in the contract. Latiak explained the higher income was awarded to a limited number of workers on the basis of merit. Early in July, Stephany alleges he sought the assist- ance of his union steward, Nathan Sims, in obtaining a 60-cent hourly raise which he felt was promised to him by Latiak when he was hired.4 Both Stephany and Sims testified that they met with Edmund Hayes, Respond- ent's controller, and Latiak in front of the latter's office. All of the witnesses agreed that other men could have overheard the conversation since they were standing near the locker room. 5 Hayes did not remember Sims' 2 Stephany testified: "He [Latiak] said my starting salary would he $4 65. After ninety days if they were satisfied with my work I would be given sixty cents for working outside on the railroad " a Respondent's agreement with the Union covered the period July 3, 1977 to July 2. 1980 ' Stephany's sage and service record indicate the following: April 4. 1978 S4.65 April 4 1978[sic] $4.75 July 3, 1978 $5.25 August 2, 1978 Terminated 5 Although it is uncertain whether or not anyone overheard this con- versation Stephany did testify that one (of the two nightmen was present and stated that. "He was glad of the meeting because he was intending to presence nor did Latiak recall Hayes' presence. Al- though Sims may have been present, apparently Ste- phany spoke for himself. He explained he felt he should receive a pay raise because he was working outside on the tank cars. Hayes answered that he was receptive to a request for a raise; however, he felt Stephany had not yet proven himself and he would consider it in the future if he proved to be a competent employee. Both Latiak and Hayes testified that they told him such an increase was a merit increase given only after he demonstrated he knew the job and was performing it well. Latiak also ex- plained that the Union opposed merit increases. There- fore, Respondent would be very careful in bestowing such increases in order to avoid the appearance of favor- itism. The meeting lasted approximately 5 minutes. Ap- parently Stephany renewed his request for a raise on sev- eral other occasions. Latiak denied he was angered by the additional requests but simply annoyed by the fact he had to repeat Respondent's policy several times without it "sinking in." Hayes also admitted he was unhappy with the initial meeting since it was held where other employees may have been able to hear the conversation which he felt was a poor method of handling personnel problems. Employers were issued headphones to protect their ears from the tremendous noise level of the venting pres- sure from the steam tanks. Stephany refused to use the standard headphones which were generally provided for employees and insisted on small plastic ear plugs. After lunch on July 27, Stephany appeared at Latiak's office complaining that the right ear plug had fallen apart leav- ing a portion lodged in his ear. He requested permission to go to the company doctor, since he was unable to remove it. Although the plug did interfere with his hear- ing, he readily admitted that he was not in any discom- fort and was willing to wait until the end of the day to visit the clinic. Latiak said he would personally take him to the clinic but would prefer waiting to the end of the day because of his extremely busy schedule. As Stephany approached the tanks that he had been filling, he discovered a wax spill. The meter read 76,000 pounds and the pumps were still pouring more wax into the already overflowing tank. He shut off the pump and informed Latiak of the spill. Stephany testified that upon entering the tank room Latiak exclaimed: Lem, this is the largest spill I have ever wit- nessed since I have been here with the Company. You are no longer working outside. You will be inside the plant until further notice from me. As for as going to the doctor this afternoon to have the piece removed from your ear, this is out until you remove all the wax from the tank room floor so we can get in and out of there. And if I miss one day to go to a private clinic to have it removed, I was fired. speak to someone in regard to his own raise." "The name of this individ- ual is unknown to Stephany and none of the other uilnesses uas even aware of his existence or of any statement made by this unknown night workman. NATIO)NAL %VAX CMPANY ' 107 Latiak candidly and readily admitted he was angry over the spill but firmly and unequivocally denied he prevented him from visiting the clinic. As he entered the tank room he observed 12,000 pounds of molten ax that covered the entire floor of the tank farm. 6 Upon in- vestigation he discovered that Stephany had been in- structed by the foremen to visually monitor the tank. In fact, he was told to fill two sequential tanks. Originally the method of measuring the amount of wax that was in each tank was to climb to the top of the tank and look. Later gauges were added to the tanks. Since wax can displace a greater volume when heated the gauges do not accurately reflect the content and, therefore, the only satisfactory method of checking the tank was climb to the top and look in. Although Stephany was instruct- ed to look into the tank to avoid a spill, he simply relied on the gauge. Unfortunately he felt that, since the num- bers on the gauge column went beyond the scale, the tank was not full until the gauge reached the top of the scale. Latiak then informed Stephany that he was no longer assigned to work on the track and that until they decided what to do with him he was assigned the duty to clean up the wax. The first step to remove the wax is to allow it to cool and harden. In this case due to the volume the wax was not sufficiently cool until the following day when the removal began. Ice scrapers were used to chip the wax free from the floor. The job was completed on August 2. On July 31, Latiak completed a disciplinary action form which served as an official reprimand to be placed in Stephany's personnel file.7 Latiak testified that nothing prevented Stephany from going to the clinic on July 27. He simply did not go, nor did he repeat his request for medical care until August 3. The events of August 3 are in substantial dispute. Ste- phany claims that when he arrived at work he waited for Latiak at the door of his office. Joe Kalish, a foreman, ordered him to the locker room to dress and begin work. He explained he was waiting for Latiak's arrival in order to discuss the lodged ear plug. As Latiak approached the area Kalish remarked, "See can you get this guy to go to work." As they entered his office Latiak said, "Lem, I am tired of wiping your nose. I am going to give you two weeks off without pay." He then requested permis- sion to speak to Hayes and was told, if he spoke to him, he would be fired and the Union would back Respond- ent. Stephany was left standing outside Hayes' office as Latiak entered. A short time later Respondent's presi- dent, Joseph Samwebber, and Hayes came out of the office. Stephany said: 6 Latiak calculated that 12.000 pounds of molten wax is equal to ap- proximately 1.500 gallons 7 The disciplinary action was dated July 31. 1978, and indicated a rep- rimand by Supervisor Latiak The reason provided for the disciplinary action Was On July 27 allowed a tank that he was loading to overflow caus- ing substantial loss of product. Had been instructed to fill tank from tank car and put remainder in a second tank Disregard of instruc- lions and job procedures 'This ritten reprimand was given to the employee on (date) The action was limited to a written rep;imnand and did not include Ioss of wo.k or income I am wondering why I am given such a hard time about getting a slip to go to the doctor, be- cause I have stayed and got all the wax up like I am requested. Why am I being discharged because of the spill when everyone before me had a spill and no one else was discharged. Samwebber replied: Forget Mr. Hayes. I am doing the Company. The Company doesn't need your service any longer. I have men that have been here with the Company for 24, 25 years, niggers in the back that have been with the Company 24, 25 years that have never been running up here asking for money, more than what was in the contract, and, therefore, you don't need a slip to go to the clinic because you are fired. Latiak acknowleged that when he arrived at his office on August 3 Stephany was talking to Joe Kalish, a fore- man. In fact, the conversation was a very heated discus- sion with Stephany refusing to begin work and stating he was going to the clinic. As Latiak was filling out the clinic authorization slip. Stephany said Joe Kalish was not important enough for Lem to obey. Latiak replied. "Enough is enough," and wrote a note to suspend him for I day.9 At the same time Latiak handed Stephany the clinic authorization slip with instructions to go to the doctor. He then demanded to see Hayes to which Latiak agreed. Hayes came out of his office and when the con- versation began Latiak returned to his own office and therefore was not present at the time of the discharge. Latiak denied that he ever prevented Stephany from receiving medical care, threatened 2 weeks off without pay, threatened to fire him if he attempted to speak to Hayes, nor did Stephany seek addditional wages for anyone other than himself or even mention collective- bargaining agreements. In fact, when it was pointed out to him that the Union was opposed to merit increases, he replied he did not care about anyone else, he was just asking for himself. Between July 27 and August 3 he never mentioned a collective-bargaining agreement nor did he have any conversations with the Union concern- ing going to the clinic. Samwebber describes the morning of August 3 as a very hectic day with foremen giving oral instructions for the day's work. Early that morning he was informed that Stephany had appeared in the plant but had not changed into his work clothes and was in the midst of a verbal discussion with one of the foremen. Approximately half an hour later he observed Stephany waving his arms and talking loudly to Hayes. Samwebber stated he previously heard that Stephany did not like to take orders from his immediate foremen but would go over their heads to the R The clinic slip was directed to McCubbin Medical Center at 4055 Oakton Street and stated, "This ill introduce Lem Stephany who has been instructed to report to you on 3 August '78 for treatment" It was signed by G Latiak for National Wax Company 9 The disciplinary action which was marked "penalized" was dated August 3, 1978. and indicated the reason for the penalization 'a, "while Fred was on vacation insist that he can choose who he will take direc- tions from. refused to work as directed " It as signed by Supervisor 6( L.atiak NATIONAL WAX COMPAN 67 1068 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD plant superintendent and that he was negligent on the job. As he observed the loud talking and general confu- sion he decided to fire him. "Therefore, I simply said that he would be happier, and I knew that we would be much happier if he sought employment elsewhere and I told him to get lost." Samwebber denied any knowledge of Stephany's request for wage increase. Hayes substantiated Samwebber's recollection of the events of August 3. While Stephany was arguing and waving his arms Hayes observed he was clutching the clinic authorization note in his hand. Although he was instructed by Hayes to go to the clinic immediately, he was observed throwing it down on a stack of wax car- tons as he left the plant. Later Latiak picked up the clinic authorization slip and retained the document. C. Analysis The original complaint states that Respondent engaged in unfair labor practices by discharging and refusing to reinstate Stephany because of his alleged protected con- certed activities. In her brief, counsel for the General Counsel further outlined the alleged unfair labor practice as follows: (1) Whether Respondent discharged Stephany because he requested permission to seek assistance at the medical clinic pursuant to article XXII of the collective-bargain- ing agreement. (2) Because he sought higher wages while invoking the assistance of the Union. (3) Respondent believed he was organizing other em- ployees to ask for higher wages. Respondent contends that Stephany was given permis- sion to obtain medical attention at the clinic, that his ac- tivities were solely for his own benefit and never on behalf of his fellow employees. Therefore, his conduct cannot be classified as concerted activity and thus is un- protected. In summation, Respondent maintains that the discharge was based solely on his intolerable and insub- ordinate behavior of August 3, 1978. It is settled law that Respondent could discharge Ste- phany for good cause, or even no cause, and that the only restriction on that right is that it not be motivated by employees' exercise of rights guaranteed by Section 7 of the Act. In fact, even if one argues that Respondent's decision to discharge was unfair, the Board is "not neces- sarily concerned when a particular disciplinary action seems to us to be excessive, unfair, or otherwise." Ameri- can Thread Company, Sevier Plant, 242 NLRB 27 (1979); Coletti's Furniture, Inc., 224 NLRB 1547 (1976), enforce- ment denied 550 F.2d 1292 st Cir. 1977. In the present case it appears the employee may have been discharged for multiple reasons both proper and im- proper. In The Youngstown Osteopathic Hospital Associ- ation, 224 NLRB 574 (1976), the employee had an ad- mitted history of failing to perform her job properly. She explained that her marital problems were interfering with her job performance. Although she continued to fall behind in the billing of 300 to 400 welfare accounts, she was not discharged until she drafted, signed and circulat- ed a petition on behalf of a discharged employee. The Administrative Law Judge found that her motion was protected concerted activity; however, she was dis- charged for her failure to perform her job and not be- cause of her protected concerted activity. The Board dis- agreed and ruled: Under Board precedent if part of the reason for terminating an employee is unlawful, the discharge violates the Act. As the Board and the courts have so often indicated, the issue is not whether there ex- isted grounds for discharge apart from the union or protected concerted activities. That the employer has ample reason for discharging an employee is of no moment. An employer may discharge an em- ployee for any reason, good or bad, so long as it is not for union or protected concerted activity. Even if the discharge is based on other reasons as well, if the discharge is partly in reprisal for protected con- certed activity, it is unlawful. Since this was indeed the case with Yacoub, we find her discharge viola- tive of Section 8(a)(l).' 0 Respondent argues in the alternative that the actions of the Charging Party by definition are not protected concerted activity; however, if those activities are found to be protected concerted activity, it further argues that the General Counsel has failed to meet its burden to show that Stephany would not have been discharged but for the concerted activity or Respondent's mistaken belief. Givlan v. Western Line Consolidated School District, 555 F.2d 1309 (5th Cir. 1977); Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). These cases involve activity protected by the first amendment and not by statute. The Supreme Court held in the Mt. Healthy case that exercise of an employee's constitutional rights cannot protect the employee from termination for legitimate reasons. Respondent argues that violation of one's constitutional rights should not be considered less serious than violations of rights protected under the Act. It is true that several circuits have re- fused to enforce Board orders which are based on a find- ing of unfair labor practice where there is a discharge where part of the reason for termination was unlawful. The first Circuit held that where there are both proper and allegedly improper grounds for discharge a finding of dominant motive is necessary, which thus places the burden on the Board to find affirmatively that discharge would not have occurred but for the dominant reason. l In the Fifth Circuit some judges consider mixed motive discharges illegal only if the union activity is "the straw that broke the camel's back." It is the duty of an admin- istrative law judge to follow and apply established Board precedent, regardless of his personal views, until the Board or the Supreme Court overrules that precedent, Fred Jones Manufacturing Company, 239 NLRB 62 (1978); Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768 (1957); and Ford Motor Company (Chicago Stamping Plant), 230 NLRB 716, fn. 12 (1977), despite contrary authority in the court of appeals, Iowa Beef Packers Inc., 144 NLRB 615 (1963). 'o See Perko' Inc:. 236 NlRB 884 (1978): Coleti' Furniture, Inc. v. N L. R. B.. supra. i Colettis Furniture. Inc. N. L. RB.. supra. NA I IONAL WAX CMPANYN~ I ()9 Therefore, the sole questions before me are whether or not Stephany's actions can be considered protected con- certed activity. If so, ,was part of the reason for his ter- mination based on this protected concerted activity. Respondent argues that Stephany's request for salary increase was not protected concerted activity because he was seeking the additional compensation only for him- self. 12 When Stephany sought his pay increase he re- quested the assistance of Nathan Sims, his union steward. It is true that Sims was silent during the wage meeting. Nevertheless, Sims did approach Respondent on behalf of Stephany. All parties agree the additional 60 cents which Stephany sought was not provided for under the collective-bargaining agreement. In fact, he had received those raises which were outlined in the collective-bar- gaining agreement. Stephany felt he was entitled to the raise because he worked outside and Respondent argued such a raise could only be given on merit, All agree that during the conversation many employees could have overheard the conversation since they were standing near the locker room. Indeed, Stephany claims two night men came up and expressed appreciation for his seeking the increase for they too felt they were entitled to great- er wages and they had intended to speak to someone concerning the raise. During the meeting Hayes said: It would have to be put down in black and white, because after that would be a raise for other jobs, which would be five jobs including mine, that he did not want the rest of the guys in the back come up and ask for a raise because they didn't deserve that raise. The fact that in Stephany's mind he was only seeking a raise for himself is not determinative of whether his ac- tions should be considered as protected concerted activi- ty. In Interboro Contractors, Inc., 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (2d Cir. 1967), an individual employ- ee's effort to enforce the provisions of a collective-bar- gaining agreement, even though singly pursued, will be deemed concerted activity if efforts are directed at goals shared by other employees. The Board extended the In- terboro rule in Alleluia Cushion Co., Inc., 221 NLRB 999 (1975), to include cases where there is no collective-bar- gaining agreement. The employee was found to be en- gaged in protected concerted activity although he acted alone when he filed the complaint with the California OSHA office protesting safety conditions at Respond- ent's plant. Thus, the action is concerted if it relates to conditions of employment that are matters of mutual concern to all affected employees. In the present case, Stephany was acting alone; however, his efforts were of interest to the two nightmen and would affect others who would seek a raise. Although his actions were self- centered they would necessarily have a collective rip- pling effect on his fellow employees, Hansen Chevrolet, 237 NLRB 584 (1978). Stephany's request for an increase was of common interest to all employees and manage- 12 Respondent's counsel questioned Stephany: Now when you went to talk to Slim in the irst week of July. you asked him about a raise for yourself, isn't hat true? A. Yes, myself I couldn't speak fr anyone else. ment was aware of that fact. Respondent knew that Ste- phany's efforts would have a collective benefit for all employees and, thus, was concerted activity protected by Section 7, see Fairmont Hotel Compaanv, 230 NLRB 874 (1977). Therefore, I must conclude that his efforts to obtain a wage increase for himself were, in fact, protect- ed concerted activity. The evidence does not substantiate the General Coun- sel's argument that Stephany was denied permission to receive medical attention. On the day the ear plug lodged in his ear he agreed that he was not suffering any discomfort and was willing to wait until late in the after- noon to obtain medical assistance. Unfortunately, the wax spill interceded and both Latiak and Stephany became preoccupied with the wax spill. Stephany admits that, thereafter, he remained silent until August 3, when he renewed his request to see the doctor. Latiak then wrote out a clinic slip which Stephany threw away. There is simply a lack of evidence to show that Re- spondent prevented Stephany from receiving medical at- tention or that his efforts to obtain such medical atten- tion in any way played a part in his discharge. Stephany's work performance was less than adequate. Through his negligence 1,500 gallons of molten wax poured out over the floor of the tank farm. Although the cost of cleaning the spilled wax was never offered in evi- dence it is obvious that his negligence required several days of lost time while the cleanup proceeded. Although he had a right to seek a raise, his continued questioning went beyond reasonable efforts in that he was told by Latiak on numerous occasions that he had to prove him- self worthy of such an increase. He ignored these an- swers and simply repeated the question. There is not a scintilla of evidence to show that he ever attempted to prove by example that he was, in fact, entitled to a meri- torious raise. Instead, he simply harassed Latiak. On August 3, 1978, Stephany refused to obey the orders of his foreman to change his clothes and begin work. Even after Latiak gave him a clinic slip to receive medical attention for his ear he did not go to the clinic. The evidence supports Respondent's contention that Ste- phany was terminated for intolerable and insubordinate behavior. However, evidence also supports the General Counsel's contention that at least in part the reason for the Charging Party's discharge was based on his request for a pay increase. Since under the circumstances of this case I have found that he was discharged, in part, for his efforts to secure a pay increase for himself, which under the circumstances of this case was protected concerted activity, it follows that Respondent has violated Section 8(a)(l) of the Act. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by discharging Lem Stephany for exercising his Section 7 rights to engage in protected concerted activi- ty for improved wages, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. In addition, I shall recommend that Respondent NATIONAL W X CONII'ANY lo"q 1070 I)ECISIONS OF NATIONAI. LAB()R REI.ATIONS I()ARI) be required to offer immediate reinstatement to Stephany and to make him whole for any loss of pay he may have suffered by reason of the discrimination against him. Backpay for Stephany and interest thereon shall he com- puted on a quarterly basis in the manner prescribed in F W. Woolworth Compny, 90 NLRB 289 (1950), with in- terest to be paid on the amounts owing and to be com- puted in the manner prescribed in Florida Steel Corpora- tion, 231 NLRB 651 (1977). See, generally, Isis Plumbing & hIeating Co., 138 NLRB 716 (1962), enforcement denied on different grounds 322 F.2d 913 (9th Cir. 1963). Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCI USIONS Ol: LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. On August 3, Respondent violated Section 8(a)(1) of the Act when it discharged its employee Lem Stephany for engaging in protected concerted activities in seeking an increase in wages. 3. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. 4. Respondent has not violated the Act in any other manner. [Recommended Order omitted from publication.] I