Bay-Wood Industries, Inc.

BAY-WOOD INDUSTRIES, INC. 403 Bay-Wood Industries, Inc. and William S. Ceder- berg. Case 7-CA-15884 May 8, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On January 25, 1980, Administrative Law Judge Elbert D. Gadsden issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Bay-Wood In- dustries, Inc., Bay City, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i The Administrative Law Judge found that on three occasions Ceder- berg complained about the safety of the radial saw arm. The record shows that Cederberg made two such complaints. and we hereby correct this inadvertency. We find totally without merit, however, Respondent's allegation of bias and prejudice on the part of the Administrative Law Judge. Upon our full consideration of the record, we perceive no evidence that the Administrative Law Judge selectively omitted evidence detrimental to the General Counsel's position, made prejudicial rulings, or demonstrated bias against Respondent in his analysis and discussion of the evidence. Respondent's request for oral argument is denied as the record, excep- tions, and brief adequately present the issues and positions of the parties. I Although the Administrative Law Judge discussed the issuance of a broad cease-and-desist order in "The Remedy" section of his Decision, his recommended Order contains a narrow cease-and-desist order, which we find to be proper under our recent Decision in Hickmorr Foods, Inc., 242 NLRB No. 177 (1979). DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge: Upon original and amended unfair labor practice charges filed on December 19, 1978, and January 15, 1979, re- spectively, by William S. Cederberg, the Charging Party, against Bay-Wood Industries, Inc., herein called Re- spondent, a complaint was issued by the Regional Direc- tor for Region 7, on behalf of the General Counsel, on February 12, 1979. 249 NLRB No. 56 In essence, the complaint alleges that Respondent dis- charged and has since then failed and refused to reinstate employee William S. Cederberg, because he complained that a radial arm saw was unsafe and refused to work on said powersaw without the protection of a safety guard; that such saw was of concern to, and affected the safety of, himself and other employees; and that his discharge by Respondent was discriminatory and in violation of Section 8(a)(l) of the National Labor Relations Board, as amended. Respondent filed an answer on February 12, 1979, denying that it has engaged in any unfair labor practices as alleged in the complaint. The hearing in the above matter was held before me in Bay City, Michigan, on August 27, 1979. Counsel for the General Counsel elected to make a summary argument on the record, in lieu of submitting a brief herein. A brief has been received from counsel for Respondent, and both, counsel for the General Counsel's argument and Respondent's brief herein, have been carefully consid- ered. Upon the entire record in this case and from my obser- vation of the witnesses, I hereby make the following: FINDINGS OF FACT I. JURISDICTION Respondent is now, and has been at all times material herein, a Michigan corporation with an office and a place of business at 691 South M 13 in the city of Bay City and State of Michigan, herein called the plant, where it is engaged in the manufacture, sale, and distri- bution of wood products, including wood trusses, com- ponent homes, industrial dunnage, and related products. In the course and conduct of its business operations during the past year ending December 31, 1978, a repre- sentative period, Respondent purchased and caused to be transported and delivered to its Bay City plant lumber, trusses, plates, and other goods and materials valued in excess of $50,000, which were transported and delivered to its plant in Bay City, directly from points outside the State of Michigan. The complaint alleges, Respondent admits, and I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent admits, and I find that Local 486, International Brotherhood of Teamsters, Chauffers, Warehousemen and Helpers of America, herein called the Union, is, and has been at all times ma- terial herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Work Assignments of Cederberg and His Complaints to Management About the Equipment Willaim S. Cederberg was employed by Respondent from August 1978 to September 20, 1978. He testified that, prior to his employment with Respondent, he was interviewed by Jerry Slebiska, general manager and part BAY-WOOD INDUSTRIES, INC 403 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD owner of Respondent. He said that, during the interview, Slebiska explained the three-phase operation of Respond- ent's plant and told him that he was being hired as a sea- sonal employee at the starting pay rate; and that most seasonal employees are laid off in October, but some- times Respondent keeps employees on past that date, de- pending on business. Cederberg said he was also told by Slebiska that most seasonal employees who worked out well would be rehired in the spring if they were availa- ble. He was hired as a general laborer in the components area and reported to Bob Gatza, foreman of the industri- al department. At first, Cederberg said he used a pneumatic fastening gun assembling bumper racks. He joined the Union and remained a member thereof. He further testified that about 4 or 5 days before September 20, 1978, Foreman Bob Gatza assigned and two other employees to work two different table saws, cutting parts for the industrial division. One of the employees working with him was called Skip, and he and Skip complained to each other about the hazardous conditions of the heavy-duty saw used for ripping logs, and the saws on which there was no vacuum suction. He said, in carrying out the two-man operation to which they were assigned, the man who pushed the logs through the saw would be sprayed in the face and chest and on the arms with fragments of splin- ter and sawdust from the logs. After a period of time Skip got himself a respirator and a face shield. Subse- quently, he (Cederberg) went to the office of Foreman Bob Gatza, and he described their conversation as fol- lows: Q. What if anything did you tell Bob Gatza about why you wanted this? A. Well, I explained to him that I was getting hit in the face with a lot of fragments and a lot of dust and it was hard, very difficult for me to be breath- ing in all that sawdust and being hit with splinters as large as a couple inches from that saw and that I wanted some kind of protection and I wanted a res- pirator so I could breathe better while I was using that saw and explained to him that the vacuum at- tached to the top of the saw or maybe it's under- neath the saw, but that vacuum was inoperative and it was not doing its job, so to speak. When Cederberg reported for work at 7:30 a.m. on September 20, 1978, he said there were no supplies to perform his usual job and Foreman Bob Gatza assigned him to work in the industrial department, cutting blocks on an overhead radial saw. Gatza had a setup man to show him how to operate the saw and Cederberg de- scribed his operation as follows: I was working on that saw for approximately a half hour to 45 minutes cutting these short laminated blocks of wood with this overhead radial saw making a special angle cut and in the process of running this saw which did not have any guard to protect my hand from being cut, I ran into a couple of blocks of wood that were not laminated correct- ly and split apart when I was running the saw through them in which case, my hand was thrust towards the saw and these parts were thrust at me. This is when I decided to turn off the saw and con- tact Bob Gatza and explain to him about the lack of safety in operating that saw. During the course of this coversation with Foreman Gatza, Cederberg said he told Gatza he feared for his fingers in operating the saw without a guard. He ac- knowledged that Foreman Gatza demonstrated how he should operate the saw, which he said was the same way in which he was operating it. After the demonstration, Gatza left the work area and Cederberg said he operated the saw again for approximately 10 or 15 minutes, until he was struck by another block of wood which had split apart and jerked his hand toward the saw blade. He said he thereupon shut down the saw, went and got Gatza, and explained to him that he was not going to operate the saw unless a guard was placed on it. He said he also told Gatza that, if there were any other jobs in the plant, he would be more than happy to work at those jobs, and that he would continue to work the radial saw if a guard were placed on it. Foreman Gatza then said to him, "Go home, punch out, that's it." Cederberg further testified that he reported to the plant at 9 a.m. on September 22, 1978, and went to the office of Jerry Slebiska, where foremen for Respondent generally congregated. In the presence of the foreman from the truss department, Cederberg said he asked Plant Manager Slebiska if he had heard what happened a couple of days ago and Slebiska said yes. Cederberg said he then explained to Slebiska that he had been fired for refusing to run one of his saws in the industrial area be- cause it did not have a guard, and he did not want to lose his fingers. Slebiska explained to him that there were saws in the plant that were operated without guards be- cause it was to the operators' advantage, in that the guards sometimes got in their way. Slebiska also told him that if he were afraid of the saw he had no business working at Bay-Wood Industries, and he (Slebiska) of- fered to have Respondent's records reflect that he (Ce- derberg) quit his employment, as opposed to having been discharged. During his working tenure with Respondent, accord- ing to Cederberg, he operated a table saw from time to time. He described how a table saw cuts from the bottom up, and how the radial saw cuts from the top down, and moves or is drawn over the wood. During his first 2 weeks in the employ of Respondent he had no problem with anyone on the job and he made no com- plaints during that time. However, he said he had com- plained to fellow employee Mark Mulhagen about the saw before he complained about it to Foreman Gatza on September 20. At that time, Mulhagen said he was glad he was not operating that saw. Cederberg acknowledged on cross-examination that, when he complained to Foreman Gatza about the saw on September 20, he was concerned about it as his indi- vidual problem at the time. Gatza told him he did not have any other work for him to perform and there was nothing else that he could put him on. He also said Gatza told him, if he ran the saw the way he (Gatza) demonstrated it, there should not be a problem. Ceder- BAY-WOOD INDUSTRIES, INC. 405 berg maintained that he was operating the saw as Fore- man Gatza had demonstrated. In responding to other questions, he said he had never been disciplined or warned that he would be disciplined for untimeliness in reporting to work. Foreman Robert Gatza testified that he was employed by Respondent on August 21, 1971, and 30 days thereaf- ter joined the Teamsters Union in which he served as union steward for 7 years. He further stated that he has no authority to discipline employees, but he can advise Slebiska that a reprimand should be given to an employ- ee. He has about 20 employees under his supervision during the busy season (May I through October 31 of each year). Gatza further testified that, on July 20, Cederberg came to him and complained about the safety of the radial saw, and he described that conversation as fol- lows: I was sitting in my office going oven timecards and Bill came in and told me that he didn't want to operate the saw because he felt that it wasn't safe and I then told Bill that if he indeed would run the saw in the way that I had shown him and the way he had cut the blocks while I was standing there, that there was no reason to be afraid of the saw and he then proceeded to tell me that the saw was un- guarded so I then took him back out into the shop, into the area where the blocks were being cut, showed him the saw and explained to him why the chain guard had been removed on the feed side of the saw. I then told him that he should let the saw do the cutting and not worry about going fast, and by that, I mean don't jam the saw into the block, let the saw carry itself into the block naturally and that speed was really not that much of importance, that he should be careful first. I then took more blocks out of the box to be cut and cut ten or twelve more of them while Bill was watching. I then said, "See, Bill, there is nothing wrong if you pay attention to what you are doing. Just watch the saw, don't be looking around in the shop at other guys." Thereafter, Gatza said Cederberg undertook the oper- ation of the saw while he stood behind him and observed him cut several blocks and assured himself that he was operating the saw properly. Having satisfied himself that Cederberg was operating the saw properly, he returned to his office to complete his timecards. He said the radial saw operation did not require any particular expertise and that the side chain guard was removed from the saw to prevent a serious accident to an operator. About 10 minutes after he returned to his office, Gatza said Ceder- berg came to his office and told him he was not going to operate the saw. He asked Cederberg why not, and the latter said his family taught him not to use unsafe tools and he would not use them because he felt they were a hazard. Gatza said he tried again to explain to Cederberg that the sw was safe, but Gederberg said he still felt it was unsafe and he was not going to operate it. Gatza said he then told Cederberg, "he may as well punch his card and go home." Cederberg said "okay" and left the office. When interrogated further, Foreman Gatza said Ce- derberg's specific complaint was that he thought the saw was unsafe because the guard on the feed side had been removed. He said he told Cederberg that the guard on the feed side of the saw would cause more problems than if it were not on there because the chain would be drag- ging over the operator's hand, thus increasing the chances of getting his fingers caught in the chain and pulling him into the wood. Also the chain guard would block his visual contact with the saw. Gatza said he did not inform Slebiska on September 20 that he had discharged Cederberg, but he did explain to him that Cederberg had complained about the safety of the radial saw operation.' Jerome Slebiska, plant manager of Respondent, testified that he has the authority to hire and fire, but Foreman Gatza and King do not have such authority. He further testified that on September 21, 1978, Cederberg came into his office and told him he had been fired. He said he told Cederberg perhaps he was mistaken because this was the first time he had heard Cederberg had been sep- arated from the Company. He also said he told Ceder- berg that some people acclimated themselves easily to a shop environment and that there were others who did not. At that juncture, the telephone rang and, as Slebiska answered it, Cederberg said, "this job is not my bag," and he left the office. He said he did not know whether to interpret the latter statement as Cederberg's having quit, or whether he was planning to return to work. In describing the radial saw, Slebiska said the saw had a half upper housing guard (which Michigan law re- quires on operating a saw of more than three-eighths of an inch) located between the hood guard and the materi- al. He said the wood material is placed in a jig and fed to the saw, which is pulled horizontally across the wood. The saw rotates below the surface of the jig. He said safety is always a very important part to the total pro- gram of Respondent; that he has more or less grown up with OSHA (Occupational Safety and Health Adminis- tration) and MIOSHA (Michigan Occupational Safety and Health Administration); and that he is familar with their safety standards and has enforced them. With respect to the safety operation of the radial saw, John Solinski testified that he was employed by Respond- ' Although Cederberg's and Gatza's testimonial accounts of the cir- cumstances under which Cederberg was separated from the employ of Respondent are essentially not in conflict, there is a slight conflict with respect to Gatza's last remarks to Cederberg on September 20. Cederberg said Gatza said "Go home, punch out, that's it" Gatza testified that he told Cederberg "he may as well punch his card and go home." I credit Cederberg's version not only because I was persuaded by his demeanor that he was testifying truthfully, but also because I was not persuaded by the cautious and somewhat selective manner in which Gatza testified I was particularly not persuaded by Gatza's less definitive version of his telling Cederberg to go home Additionally, it is particularly observed that. if Gatza's ultimatum to Cederberg did not mean that Cederberg was fired, Gatza did not give any explanation to Cederberg at that time, nor at any time during this hearing, as to what he did mean Certainls Gatza's version is more ambiguous than Cederberg's version because Re spondent now contends it did not discharge Cederberg BAY-WOOD INDUSTRIES, INC. 405 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent in the spring of 1973, and is now a setup employee in the truss department, and shop steward. He said he has performed and has observed other employees performing the radial saw operation. about which Cederberg com- plained, but that neither he nor any other employee has ever complained about the safety of that operation. B. Analysis and Conclusions It it well established by the essentially uncontroverted evidence of record that on three occasions (September 15 or 16, and twice on September 20), employee William Cederberg complained to management (Foreman Gatza) about the safety of its radial arm saw; that, when Ceder- berg complained to Foreman Gatza the first time on Sep- tember 20, the latter gave him a personal demonstration on how to operate the saw; and that, when Cederberg complained about the operation of the radial saw to Foreman Gatza for the second time on September 20, Gatza said, "Go home, punch out, that's it." Cederberg construed the latter utterance by Gatza to mean that he was discharged. While Respondent denies that Ceder- berg was discharged, it is particulary observed that it did not advise him otherwise, when Cederberg visited the office of Plant Manager Slebiska on or about September 22. However, Respondent now contends in this proceed- ing that it did not discharge Cederberg, but, rather, that Cederberg quit its employ on September 20. In support of its denial that it discharged Cederberg on September 20, Respondent introduced some evidence in an effort to show that its radial saw operations met Federal and state safety standards; that Cederberg was either not willing to adapt, or was not in fact adaptable to a machine shop environment; and that, being dissatis- fied with the work, he voluntarily terminated his em- ployment with Respondent. However, based on the fore- going credited evidence, I thereupon conclude and find that Gatza'a words to Cederberg, "Go home, punch out, that's it," uttered under the circumstances hereinbefore described, where reasonably construed by Cederberg to mean, and in fact did mean, that Cederberg was dis- charged. This interpretive conclusion is further support- ed by Respondent's conduct on or about September 22, when Cederberg reported to the office of plant Manager Jerome Slebiska. At that time, Cederberg informed Sle- biska that Foreman Gatza had terminated his employ- ment on September 20. I do not credit the statement at- tributed to Cederberg by Slebiska that the former said "this job is not my bag" because I was persuaded by the demeanor of Slebiska that he was trying to justify Ceder- berg's voluntary separation. However, even if Cederberg did make the statement, it is possible he meant "job" in the sense that management personnel relations were not his bag, and not the saw operations, since he was being discharged. Although, in testifying, Manager Slebiska proceeded to explain why the radial arm saw did not have an opera- tive chain guard mounted on it, at no time did Manager Slebiska ever deny that Cederberg had not been terminat- ed by Respondent. Nor did he ever inform Cederberg that he was still employed, or offer him reemployment since he understood Cederberg believed, that he had been, or in fact had been, terminated on September 20. I therefore further conclude and find that, by his acquies- cence on September 22, Slebiska ratified Gatza's termina- tion of Cederberg on September 20, and that in fact Ce- derberg was terminated by Respondent on September 20, and, if not at that time, he was for certain on September 22 when he visted the office of Plant Manager Slebiska. Hence, the principal question remaining for determina- tion is whether Respondent terminated Willam Ceder- berg because he complained to management about the safety operation of its radial arm saw. In answering this question, it must be borne in mind that Respondent denies that it terminated Cederberg and, therefore, of- fered no evidentiary reason or cause for his discharge. Nevertheless, Respondent submitted evidence in an effort to show that its saw operations were safe. Such evi- dence, however, does not render any assistance to me in formulating an answer to the precise question presented for determination; namely, was Cederberg terminated by Respondent because he complained about unsafe work- ing conditions (a protected activity under the Act). The Board has held in several decisions that, whether an em- ployee's complaints about safe working conditions is real or imaginary, it is immaterial to the exercise of an em- ployee's Section 7 right to so complain C & I Air Condi- tioning, Inc., McKeon Construction, 193 NLRB 911 (1971), enforcement denied 486 F.2d 977 (9th Cir. 1973) (the law of that case.) Assuming, arguendo, that Respondent's saw operations satisfied every conceivable standard of safety, the re- maining question is still whether Respondent discharged Cederberg because he complained about unsafe working conditions. In this regard, and without offering any evi- dence to show that it did not discharge Cederberg be- cause of his complaints, Respondent elected to defend against the allegations by introducing evidence referable to reasonableness, truthfulness, and accuracy of Ceder- berg's complaints. While I do not make any findings as to whether Respondent's saw operations were in viola- tion of Federal and state safety standards, or were, or were not, in fact safe, neither do I find that the evidence unequivocally established that such saw operations were so safe that they were free from reasonable questions of safety. In any event, questions about the actual safety of the saw operations are not germane to a fair resolution of the issue presented for determination. This is especially true since the Board has also held that, "[i]t is of no moment whether the nature of the grievance is legitimate or frivolous, or whether the protest is wise or unwise." N.L.R.B. v. E. A. Holcombe, etc., d/b/a Holcombe Arma- ture, 325 F.2d 508 (5th Cir. 1963). Respondent contends that Cederberg's complaints about the safety operations of its saws were made by Ce- derberg alone, on his own behalf, and therefore may not be considered protected concerted activity. On the con- trary, however, the Board has held that a single or indi- vidual complaint of an employee about safe working conditions, which may affect other or all employees, does not strip such complaint of its concerted character. When such individual or single complaint is made in an attempt to enforce provisions of an existing collective- bargaining agreement, the Board has held that they are grievances within the framework of the contract that af- -- ----- __ BAY-WOOD INDUSTRIES, INC. 407 fects the rights of all employees in the unit, and therefore constitute concerted activity proteted by Section 7 of the Act. Interboro Contractors, Inc., 157 NLRB 1295 (1966), and C & I Air Conditioning, Inc., supra. Respondent also contends that Cederberg did not assert or file a grievance pursuant to article II, sections 54 and 55, of the collective-bargaining agrcement which, respectively, provides that employees report all defects or unsafe equipment to Respondent, and prohibits Re- spondent from assigning or requiring an employee to perform work under dangerous or unsafe conditions. Al- though it is clearly established that Cederberg did not assert or file a grievance pursuant to the above-cited sec- tions of the collective-bargaining agreement as grounds for his refusal to operate the radial saw, the Board has long since held that such an assertion, or filing of a grievance pursuant to the collective-bargaining agree- ment, is not required, and failure to do so does not pre- clude an employee from exercising Section 7 protected rights by complaining about safe working conditions. In Roadway Express, Inc., 217 NLRB 278 (1975), the em- ployee acted alone in refusing to drive a tractor he re- ported to the employer as unsafe. The Board held that, although the employee acted alone, and did not at the time of his refusal specifically refer to the collective-bar- gaining agreement granting employees such a right, "the nature of his complaint has significance and relevance under the contract to the interest of all of Respondent's employees whose employment is governed under the contract." The rationale for the rule previously enunci- ated by the Board in Roadway Expres- was that "imple- mentation of such an agreement by an employee is but an extension of the concerted activity giving rise to that agreement." Merlyn Bunney and Clarence Bunney, Part- ners, d/b/a Bunney Bros. Construction Company, 139 NLRB 1516 (1962). The record shows that Cederberg acknowledged on cross-examination that, at the time he complained to Foreman Gatza on September 20 about the safety of the radial saw, he considered the subject matter of his com- plaint his problem because he was the only one using the saw. Counsel for Respondent thereupon contends that Cederberg was not engaged in protected concerted ac- tivity because he was acting alone and on his own behalf, citing C & I Air Conditioning, Inc., supra. In the latter case, the Court of Appeals for the Ninth Circuit denied enforcement of the Board's Order in C & I Air Conditioning, on the ground that the record lacked sub- stantial evidence to establish that the employee therein had engaged in protected concerted activity. In denying enforcement, the court said it failed to see any evidence that the purpose of the refusal of the dis- charged employee was for the "mutual aid or protec- tion" of the employees, or that it was an attempt to en- force the provisions of a mutual bargaining-agreement; and that, as it had previously held, "concerted activity" means that the employee must be acting "with or on behalf of other employees" and "not solely by and on behalf of [the] discharged employee himself." Pacific Electricord Company v. N.L.R.B., 361 F.2d 310 (9th Cir. 1966). In his brief, counsel for Respondent further argues that counsel for the General Counsel cites the same case (C & I Air Conditioning ) for support of his position that Ce- derberg's refusal to operate the radial saw was protected concerted activity. However, it is observed that, while counsel for the General Counsel did not explain his cited authority, or submit a brief in this case, presumably he cited C & I Air Conditioning for the principles enunciated by the Board that an individual complaining or refusing on his own behalf to perform work under asserted unsafe work conditions constitutes protected concerted activity. In all probability, counsel for the General Counsel simply noted for the benefit of all concerned that en- forcement of the Board's Order in C & I Air Conditioning had been denied by the Ninth Circuit, but, nonetheless, by which jurisdictional proceedings in the Sixth Circuit (Michigan) are not bound. Thus, in reference to the dis- charged employee, Martin, who complained on his own behalf in C & I Air Conditioning, the Board said [193 NLRB at 911-912]: The record, it is true, indicates, as our dissenting colleague points out, that Martin presented his com- plaints alone. Also, he did not pursue his complaints by filing formal grievances. However, upon consid- eration of the facts disclosed by the record as a whole, including the nature of Martin's complaints and their significance and relevance under the con- tract to the interest of all of Respondent's employ- ees, we cannot agree that there is no evidence that he was seeking to implement the collective-bargain- ing agreement governing the employment of Re- spondent's employees on this construction project. We are satisfied that in presenting such complaints Martin was engaging in protected, concerted activi- ty.3 The action of the Employer in discharging Martin, a union member for several years, for com- plaining about matters within the scope of the union contract in our view necessarily tends to inhibit not only the execution of an agreement such as this, which provides, inter alia, essential safety measures for con- struction employees, but also the collective-bargaining of which it is thefruit. Further, it tends to demonstrate to other employees the futility of attempting to imple- ment the protection afforded by an existing contract. The above effects of Martin's discharge, in our view, all contravene Section 7 self-organization rights of employees. [Emphasis supplied.] I Inierboro Contractors. Inc., 157 NLRB 1295, and cases cited therein. See also Fn 7, Trial Examiner's Decision. In further support of its positions that Cederberg was not engaged in "protected concerted activity," Respond- ent also cites ARO, Inc. v. N.L.R.B., 596 F.2d 713 (6th Cir. 1979). There, the Court of Appeals for the Sixth Circuit denied enforcement of the Board's Decision and Order on the ground that they were not supported by substantial evidence in the record. More specifically, the court declined to adopt the Interboro doctrine, that "complaints by an individual employee in an effort to en- force provisions of a collective-bargaining agreement amounted to concerted activity under Section 7 of the BAY-WOOD INDUSTRIES, INC. 407 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, even in the absence of interest by fellow employees in the complaints." Interboro Contractors, Inc., 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (2d Cir. 1976). The court further declined to follow the Board's holdings in ARO, Inc., supra, and John Sexton & Co. a Division of Beatrice Food Co., 217 NLRB 80 (1975), which held as follows [596 F.2d at 717]: . . where an individual employee makes a claim or complaint which relates not only to that employee's situation, but that of his fellow employees as well, he will be considered to have engaged in concerted activity irrespective of whether the claim or com- plaint has merit under the collective bargaining agreement, whether the employee has relied upon the collective bargaining agreement, or whether the employee has any rights under the collective bar- gaining agreement. Deeming that the Board's Decisions in ARO, Inc., and John Sexton & Co., are both an extension of the Interboro doctrine, resulting in too expansive a reading of Section 7 of the Act, the Sixth Circuit elected to follow its earli- er decision in N.L.R.B. v. Guernsey-Muskingum Electric Cooperative, Inc., 285 F.2d 8 (6th Cir. 1960). In the latter decision the court stated, "[It must be shown that the in- dividual in fact was acting on behalf of, or as a repre- sentative of, other employees rather than acting for the benefit of other employees only in a theoretical sense." However, in view of the clear rulings of the Board in Interboro Contractors, C & I Air Conditioning, John Sexton & Co., ARO, Inc., and Roadway Express, Inc., supra, and other cases cited and/or discussed by counsel herein, it cannot be reasonably argued, as far as Board law is con- cerned, that Cederberg's refusal to operate the radial arm saw is not controlled by the above-cited authorities. Ac- cordingly, pursuant to such Board authority, I conclude that Cederberg's refusal was "protected concerted activi- ty" within the meaning of Section 7 of the Act. Al- though the Court of Appeals for the Ninth Circuit in C & I Air Conditioning and the Court of Appeals for the Sixth Circuit in ARO, Inc., respectively, held that the evidence did not establish that individual employee com- plaints, comparable to Cederberg's, did not constitute "protected concerted activity" under the Act, such hold- ings are considered by the Board as the law of the cases therein. In any event, I am bound by the Board's Deci- sions in the above-cited authorities, which have not been reversed by the Board nor the Supreme Court. Ford Motor Company (Chicago Stamping Plant), 230 NLRB 716 (1977). Finally, as the record shows, Respondent contends that it did not discharge Cederberg, but that Cederberg voluntarily terminated his employment with Respondent. Having previously discredited this contention, and having found that Respondent discharged Cederberg on September 20, 1 further conclude and find that Ceder- berg did not quit his employment with Respondent; and that Respondent's present contention, that Cederberg quit its employ, is a mere pretext advanced by Respond- ent to conceal its unlawful discharge of him. Such dis- charge of Cederberg by Respondent constituted an inter- ference with, restraint upon, and coercion against em- ployees' exercise of rights guaranteed in Section 7 of the Act in violation of Section 8(a)(l) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section Ill, above, occurring in connection with Respondent's oper- ations described in section 1, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices warranting a remedial Order, I shall rec- ommend that it cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. In having been found that Respondent interfered with, restrained, and coerced employee William S. Cederberg in the exercise of Section 7 protected rights by discharg- ing him because he complained to management that working conditions were unsafe, in violation of Section 8(a)(l) of the Act, the recommended Order will provide that Respondent cease and desist from engaging in such unlawful conduct; that it offer him employment as sea- sonal jobs become available and before other persons are hired for such seasonal jobs; and that it make him whole for any loss of earnings by reason of the discrimination against him, within the meaning and in accord with the Board's Decisions in F W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977),2 except as specifically modified by the wording of such recommended Order. Because of the character of the unfair labor practices herein found, the recommended Order will provide that Respondent cease and desist from or in any other manner interfering with, restraining, and coercing em- ployees in the exercise of their rights guaranteed by Sec- tion 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941). Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Bay-Wood Industires, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 486, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is and has been at all times material herein a labor organi- zation within the meaning of Section 2(5) of the Act. 3. By discharging William S. Cederberg because he complained to management that working conditions were unsafe, Respondent violated Section 8(a)(l) of the Act. 2 See, generally, Isis Plumbing d Hearing Co., 138 NLRB 716 (1962). BAY-WOOD INDUSTRIES, INC. 409 4. By discharging William S. Cederberg because he, pursuant to rights and duties in the collective-bargaining agreement with Respondent, complained to management that working conditions were unsafe, Respondent dis- criminated against Cederberg and violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER3 The Respondent, Bay-Wood Industries. Inc., Bay City, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging its employees because they complain to management that working conditions are unsafe. (b) Discharging its employees because, pursuant to provisions in the collective-bargaining agreement with Respondent, they complain to management that working conditions are unsafe. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make William S. Cederberg whole for any loss of earnings suffered by reason of the discrimination against him with interest in the manner described in the section of this Decision entitled "The Remedy." (b) Offer William S. Cederberg employment as season- al jobs become available and before other persons are hired for such seasonal jobs. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at Respondent's plant at 691 South M 13, Bay City, Michigan, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly 3 In the event no exceptions are filed as provided by Sec. 10246 of the Rules and Regulations of the National Labor Relations Board, the find- ings, 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. 4 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "131(e) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. I1 IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act not found herein. Appendix NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. WE WILL NOT interfere with, restrain , or coerce employees by discharging them because they com- plain that working conditions are unsafe. WE WILL NOT interfere with, restrain, or coerce employees for exercising rights and performing duties provided for in a viable and effective collec- tive-bargaining agreement with employees, by com- plaining to management that working conditions are unsafe. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise and enjoyment of rights guaranteed them by Section 7 of the National Labor Relations Act, except to the extent that such rights may be affect- ed by lawful agreements in accord with Section 8(a)(3) of the Act. WE WILL make William S. Cederberg whole for any loss of earnings he may have sustained by reason of his discriminatory discharge, plus interest. WE WILL offer William S. Cederberg employ- ment as seasonal jobs become available and before other persons are hired for such seasonal jobs. All our employees are free to become, remain, or refuse to become or remain, members of the Union or any other labor organization, except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. BAY-WOOD INDUSTRIES, INC. BAY-WOOD INDUSTRIES, INC. 409