Meijer Wholesale, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meijer Wholesale, Inc. and Randall R. Metzger. Case 7-CA- 13934 November 20, 1978 DECISION AND ORDER BY MEMBERS PENELLO. MURPHY. AND TRUESDALE On May 16, 1978, Administrative Law Judge Rob- ert G. Romano issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondent filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. DECISION STATEMENT OF THE CASE ROBERT G. ROMANO. Administrative Law Judge: This case was heard before me at Lansing, Michigan, on Sep- tember 19, 1977. The charge in this matter was filed on March 31, 1977, by Randall R. Metzger, an individual. Complaint issued on May 16, 1977.' The primary issues for determination raised by complaint (as amended at hearing) are whether Charging Party engaged in concerted protect- ed activities for employees' mutual aid and protection in regard to certain claims made of unsafe conditions existing in working conditions of Meijer Wholesale, Inc.'s Lansing, Michigan, place of business, including the filing of com- plaints thereon with the Michigan Department of Labor, Bureau of Safety and Regulations; and whether the Re- spondent Employer, as alleged, unlawfully suspended the Charging Party for 2-1/2 days because of such concerted activity, in violation of Section 8(a)(l) of the National La- bor Relations Act, as amended. I All dates are in 1976 unless otherwise stated. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Company on or about October 24, 1977, 1 make the following: FINDINGS OF FACT I. JURISDICTION The Company is a Michigan corporation and is engaged in the business of wholesale grocery and related products. Respondent operates a central distribution center facility at S. Creyts, Lansing, Michigan, from which it services some 26 retail stores. The distribution center is the only facility involved in this proceeding. In the conduct of its wholesale operation, Respondent annually receives goods and materials valued in excess of $50,000 directly from points located outside the State of Michigan. The Compa- ny admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11 ALLEGED UNFAIR LABOR PRACTICES A. Respondent's Operations Respondent operates a large warehouse and distribution center in Lansing, Michigan, from which it supplies gro- cery and related products to some 26 retail stores in the State of Michigan. In this basic warehousing and supply operation Respondent utilizes and S. I. Order-matic ma- chine, which is a very large automated machine, some three stories high, several hundred feet long and 50 to 60 feet wide. The Order-matic is kept supplied with cases of vari- ous products and has the capacity, upon computer or other appropriate signal, to drop products from its reserve areas onto a track in accordance with a specific store order. The ordered products then travel on the track to an end point, where collected product items for the particular store are then put on a cart and transported to a dock area for load- ing on a semitrailer for subsequent delivery to the specific store. Bulky items are not handled by the Order-matic, but rather are selected directly and hauled to the specified loading areas, usually by a selector. The warehouse itself is understandably considerably larger than the Order-matic and houses numerous sections composed of metal framed slots or bins in which the vari- ous goods are selectively stored in reserve. The sections are generally arranged around the Order-matic. In the bins merchanidse may be stored as high as 25 to 30 feet in the air. Additional reserves of more bulky items, e.g., paper stock, are stored in peripheral warehouse areas. Respon- dent operates two shifts. The first shift is primarily respon- sible for receipt and warhousing of incoming products in the designated sections. The second shift, which begins work 4 p.m. and normally ends at 12:30 a.m., is primarily involved in the order-filling process. Respondent divides its order-filling operation with re- spect to the Order-matic into four quadrants which are numbered "quad" 1-4, respectively. They also apparently surround the machine. In any event, each quad has a work 382 MEIJER WHOLESALE, INC. force composed of two quad hi-lo (forklift) drivers and two employees classified as replenishers. On the basis of a com- puter printout, the two quad hi-lo drivers, generally on an alternating basis, bring products from the reserve bins to the Order-matic area, where the two replenishers continu- ously feed the product into the Order-matic's reserve areas. Unless the product is timely selected and delivered by the quad hi-lo operators, the work of the Order-matic replen- ishers, the efficiency of the Order-matic (due to shortages), and the resulting final loading and delivery are all adverse- ly affected. As previously noted, Respondent's order-filling opera- tion also includes a direct selection process for bulky items. Here, a selector works also from a computerized printout of bulky items ordered by specific store. The selector regu- larly moves directly into wide aisles which separate the re- serve stock sections; selects the ordered product from the appropriate bin; and places it on a cart drawn behind the selector. In that connection, the selector drives a machine, called an "ox," which he uses to haul as many as three or four such carts at a time. The selector eventually delivers the carts directly to the dock area for loading and shipment to the specific store. Various paper stock items are not only kept in the bins but, due to their casing bulk, are also kept in the peripheral storage areas. One hi-lo operator, herein designated as the paper hi-lo operator, is responsible for keeping the assigned paper stock bins adequately filled with paper product items to handle the selective process by the selectors. If the prod- uct is not in the bin at the time the selector arrives for product selection, the selector is relieved of responsibility for that item upon showing the item as being "out" at cer- tain designated section locations. It then becomes the re- sponsibility of the paper hi-lo operator to not only refill the "out" but to also take the given store's order of that prod- uct directly to specific shipping area, if the paper hi-lo op- erator can not catch up with that store's selector in the interim. At the end of the shift the paper bin sections are apparently usually depleted. Normally the first shift in re- ceiving and storing merchandise will make effort to fill the paper stock bins so that the paper operator will not start out behind.2 Additional second shift assistance may be giv- en to the paper hi-lo operator. When such assistance is to be provided, it is usually done at the start of the second shift, though it also may be occasionally at the end of the shift. It was apparently not unusual for the paper hi-lo operator to have such assistance or for employees generally to work overtime in a preholiday period. However, the as- sistance of one additional hi-lo operator provided to the hi-lo operator had been previously sufficient. 2 The quantity of paper product casings per skid is disproportionate to almost everything else. Thus, there are only 12 15 cases of paper product per skid, as compared generally with apparently anywhere from 65 to 140 cases of other product per skid. However, there are some other bulky items that must be similarly handled, e.g., cereal, with 15-20 casings per skid. B. The Evidence Pertaining to Charging Party's Safety Complaints 1. Charging Party's employment history Randall Metzger was employed by Respondent as a hi- lo (forklift) operator from initial hire in 1973 until May 1977, when he quit to accept another job. In March-Apnl, Metzger was assigned and worked as a "quad-4 hi-lo" op- erator. During this period Metzger had occasion to become aware of a certain Michigan safety regulation according to which it was Metzger's understanding that a hi-lo should not be moved until the machine's lifting forks were low- ered. While the relationship of a certain accident that Metzger had about that time is not precisely shown as re- lated to Metzger's interest in MIOSHA at that time, the record does reveal that on March 22, Metzger had been involved in an accident that resulted in an eye and neck injury. 3 Metzger relates that upon learning of the MIOSHA reg- ulation applicable to forklifts, he began to follow the pro- cedure of not moving his hi-lo with forks raised in the air. At the time, Metzger was working in quad-4. Metzger's production, as compared with other quad hi-lo operators, immediately dropped. Metzger's supervisors had subse- quent occasions to bring to Metzger's attention that his production had dropped, additionally notifying Metzger that his co-workers were beginning to complain that his decreased production was adversely affecting their work as well. Metzger admits that Supervisor Ron Byam, Shift Manager Peter Grandy, and Grocery Manager Ray Becker had each had occasion to speak to him about his produc- tivity and that he had discussions with coworkers about his productivity. 4 I further note and credit the testimony of Peter Grandy, second shift manager and an admitted sup- ervisor, who also testified that after Metzger's (and quad 4's) productivity dropped, he had thereafter moved Metz- ger to quad-3 to find out if the lowered productivity was attributable in some measure to other quad-4 personnel. Grandy then observed that in the 3-4 weeks that Metzger thereafter worked in quad-3, that quad-3 then developed a production problem that it did not have before Metzger's transfer. As a consequence of his lower productivity, Metz- ger was then transferred to the paper section. Metzger testified that other hi-lo operators did not at this In taking a skid of glass product from a bin, a case of glass product became dislodged and fell. hitting the front of his fork and then the floor. scattering glass fragments in the process. Metzger had similarly had previ- ous instances of getting foreign substances in his eyes On this latter occa- sion. Supervisor Jackson, who had assigned safety responsibilities, in view of Metzger's history, recommended but did not require that Metzger regu- larly use safety glasses. Safety glasses were not individually supplied to Metzger. nor did he ask for same. Metzger explained that the way forklifts had previously been operated by all operators was that the operator would be lifting his forks while on the way to get the product and, in doing so, would cross aisles and go around corners (at least some of which were blind) with the forks raised in the air; and similarly after obtaining the desired product. that the operator would back around and immediately move forward up to full speed of 20 miles an hour while lowering the forks with the merchandise. In contrast, to remain stationary while raising and lowering the forks involved considerable time over an entire shift. Thus, admittedly. the new procedure he instituted di- rectly affected the amount of his production, due to time he spent in await- ing completion of the hydraulic (up-and-down) operation 383 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time or at any time later express or share any interest in his safety concerns. Metzger also testified, and I credit him in this respect, that prior to filing any safety complaint with MIOSHA he had initially discussed both his safety con- cerns and his supervisor's criticisms about his resulting drop in productivity with his union steward, Darrel Pierce. However, Metzger followed Pierce's recommendation that a grievance not be filed on the matter under the contract s because of the steward's expressed belief that the grievance would be one that they could not expect to win.6 Nonethe- less, I do note and credit Metzger's uncontradicted testi- mony that during this period he had raised with certain (then) immediate supervisors (Ron Byam and Don O'Hara) his own concern and view that certain aspects of Respondent's existing hi-lo operational methods were un- safe for employees generally. According to Metzger, noth- ing came of his expression of such safety concerns when he had initially registered them with his immediate supervis- ors. 2. Metzgei's safety complaints a. Metzger'sfirst safety complaint; Respondent's citation On April 30, Metzger filed an initial safety complaint with the appropriate agency of the State of Michigan which handles occupational safety and health regulations for that State, herein MIOSHA. Metzger essentially complained that a safety hazard existed in Respondent's second shift hi-lo operations; and, as initially filed, his claim was that the second shift hi-lo operators were being forced to drive with their forks 3 feet to 25 feet in the air in order to increase their speed of production and were being required to raise and lower their forks while in motion. His com- plaint further related that much of the merchandise that was handled was stored considerably above the ground; that there were many blind corners; and that 50-60 em- ployees were "exposed to or threatened" by this alleged hazard. In the complaint, Metzger specifically requested that his name not be divulged to the Employer. As noted, Metzger conceded that none of his fellow hi-lo operators had expressed such a concern to him at the time of this filing or similarly had joined with him in regard to any of his complaints that he subsequently registered with MIOSHA. However, I note as significant that, in addition to Metzger signing his April 30 complaint, steward Daryl Pierce did so also. Metzger testified, and I further note that his testimony in this respect is uncontradicted. and thus also credited, that 5Respondent (apparently along with its affiliated or parent corporation) has a contract with Consolidated Independent Union, Local 951 covering, inter alia, certain distribution center warehouse employees. The current con- tract is effective August I. 1975. with duration through July 1, 1978, and thereafter, unless sooner terminated or modified in a prescribed manner. The contract has in the intenm been amended with regard to wages and certain other provisions not material to issues herein, 6 The contract provides only generally for mutual cooperation of the par- ties in regard to safety. Thus, art. 14: Union cooperation, sec. 14.2 provides as follows: "The Employer and the Union agree to cooperate in maintaining and improving safe working conditions and practices, in improving the cleanliness and good housekeeping of the stores, and in caring for equipment and machinery." union steward Pierce had offered to also sign the two subse- quent complaints filed with MIOSHA, but that Metzger did not elect to have the steward do so, as Metzger felt it unneces- sary to do so to effect a full MIOSHA investigation. 7 An investigation of Metzger's April 30 complaint on the second shift hi-lo operations was in due course made by MIOSHA; and as a result, a MIOSHA citation issued against Respondent on May 28. However, the citation did not run to the manner of the operation of the forklifts on second shift as complained about by Metzger but rather to Employer's alleged "improper licensing of powered indus- trial vehicles" under MIOSHA regulations. This was not a matter specifically raised by Metzger in his initial com- plaint or even discussed with his supervisors at that time. Metzger initially testified that there was no change there- after in Respondent's hi-lo operations. However on cross- examination, Metzger at least somewhat refined his initial testimony in that respect in acknowledging his awareness that the MIOSHA investigator had also issued a reported opinion-ruling to the Employer in regard to the second shift operation of the hi-los, which was to the effect that a hi-lo driver could lift and lower his forks while in motion, so long as there was no one else in the aisle and the hi-lo operator, while doing so, did not cross aisles or enter cross- ways in which other employees might be working or travel- ing. I also note and credit Metzger's uncontradicted testi- mony that, at a subsequent management meeting with the hi-lo drivers, and indeed at his request, Grocery Manager Ray Becker had mentioned the MIOSHA investigator's opinion-ruling to the other hi-lo operators. Thus, Metzger specifically testified, and I credit him, that Becker told the hi-lo drivers on that occasion that he himself had observed the hi-lo drivers in operating their forklifts cross aisleways and come around (presumably blind) corners with their forks in the air and that he did not want to see any more of it. Metzger also clarified his testimony at least to the extent of acknowledging that there had been some visible im- provement in the hi-lo operations on second shift after Becker's talk.8 According to Metzger, the improvement lasted for only a few weeks and then the same claimed unsafe hi-lo procedures started up all over again. However, in this respect there was significant and persuasive conflict- ing testimony of other hi-lo operators to the effect that substantial and continuing effort was made by individual drivers to abide by that MIOSHA ruling and management's instructions thereon. I find such was credi- ble testimony. I am thus not persuaded by Metzger's gener- alized and otherwise uncorroborated testimony to the con- trary and thus do not credit Metzger to the extent inconsistent therewith. b. Metzger's second safety complaint; Respondent's second citation On July 21, Metzger was involved in still another acci- dent in the act of changing a 48-volt battery. The battery apparently had a chipped terminal and shorted out. In at- tempting to change the battery in accordance with a Daryl Pierce. then steward, did not testify. Becker did not testifY. 384 MEIJER WHOLESALE, INC. supervisor's instruction, Metzger was injured and hospital- ized for an undisclosed period. The record does reveal that Metzger did not return to work for over 90 days, returning on October 25. In the interim, on July 28, Metzger filed a second complaint with MIOSHA, again not authorizing that agency to divulge his name. Although Metzger's sec- ond complaint covered several matters, it specifically al- leged that employees had been required to change a 48-volt battery without training. The complaint also alleged that the improper licensing of second-shift hi-lo operators and order pickers had continued, viz, without any testing, and also asserted that hard hats and safety glasses were rarely used. Metzger's second complaint was investigated by MIOSHA on August 18; and a second citation against Re- spondent issued on August 25, alleging, inter alia, as a re- peat rule violation, that Employer had failed to provide "certification of eye examination," in regard to valid oper- ator permits, and failed to provide and enforce use of "suit- able certified eye protection" in the "maintenance service" and "battery changing and charging" area. Both cited items were assigned by MIOSHA an abatement (remedy) date of "10-4-76." c. Respondent's concurrent expressions of concern about the extent of Metzger's absenteeism Thomas Mazurek became Respondent's Lansing unit manager on July 9. Following Metzger's July 21 accident, Mazurek had occasion to review Metzger's file, noted his overall record of absenteeism, and also became aware through discussions with Metzger's supervisors (Peter Grandy and Ray Becker) that they had also had to talk to Metzger about his job performance. Prior to Metzger's re- turn to work, Respondent provided Metzger with an exten- sive 2-day medical (including neurological) examination from which it was determined that there was nothing phys- ically wrong with Metzger and that he could return to work. As noted, Metzger thereafter returned to work on October 25. According to Mazurek, he held an initial meet- ing on October 26 with Metzger concerning Metzger's ex- cessive absenteeism and to ensure that Metzger did under- stand he had to be a full-time employee for Employer. Metzger did not subsequently deny that this conversation had occurred. Despite some confusion in the record thereon, I credit Mazurek in that respect. Following his return to work on October 25, Metzger also had a conversation with Grocery Manager Ray Beck- er, in which he again raised with Becker his concern over the second shift forklift operations. According to Metzger, on this occasion he told Becker that he did not feel he should have to go outside the Company with such prob- lems, adding that he had done so in the past and hoped he would not have to do so in the future. Accordin$ to Metz- ger, Becker replied that he would take care of it. As Beck- er did not testify, Metzger's testimony in that respect is also uncontradicted and I credit it. 'Although the timing thereof is not completelys clear. hi -lo operaltor tier- man McElwee testified that his immediate supervisor notified him not to drive with forks up because Metzger had complained about it. and that thereafter he did not do so. It is established that this conversation had occurred before Metzger's suspension of November 22. discussed infr) Between Metzger's return in late October and November 17 (some 3 weeks), Metzger missed I day of work each week. Metzger recalled that it was in early November that he had a meeting with several representatives of manage- ment about his absenteeism. Metzger recalled that in atten- dance were Chuck Soderberg (Respondent's safety direc- tor), and Tom Mazurek, unit manager. Also present were employee relations and personnel supervisors, Bob Ford and Jim Tietsma. According to Metzger, management on this occasion discussed the number of days that Metzger had missed as a result of his on-the-job injuries and dis- cussed resulting overall costs to the Company. Manage- ment expressed a concern to Metzger that something was wrong. Thus, it was explained to Metzger that he had been rated with other employees over the past year or two, and he had more injuries and had missed more days than any- one else, which Metzger did not deny. Management told Metzger that they wanted to know if there was a problem and, if so, what it might be. At the end of the discussion Metzger was given the rest of the evening and 2 additional days off, with pay. Management requested that during this time Metzger think about what they had discussed. Metz- ger recalled that Soderberg, toward the end of this meeting, told Metzger (in the presence of the other management representatives) that Metzger's number one consideration should be to think safety. On the basis of the parties' stipu- lations in that respect, I find such meeting was held on November 17 and that Metzger was subsequently on an authorized leave of absence with pay on November 18 and 19 (Thursday and Friday). t ° As noted, Manager Mazurek testified that he had an initial meeting with Metzger on October 26, with a primary purpose to discuss Metzger's missing too many days. When Metzger was observed to be absent I day in each week following that meeting, Mazurek confirmed that he had arranged a second meeting with Metzger, November 17, supra, which, according to Mazurek, included the presence of the union steward, Pierce. During his initial discussion with Metzger, Mazurek recalled that Metzger had ap- peared aloof. Mazurek testified credibly that, at one point, Mazurek himself became excited and had specifically asked Metzger whether, if the building were to fall over, Metzger would really care; and that Metzger had on that occasion replied to him he could care less.' Mazurek testi- fied (and I find such occurred in the November 17 meet- ing) that he explained clearly to Metzger that, even ac- knowledging that most of his absenteeism had related to work injuries, employees had in fact been terminated for excessive absenteeism before, due to whatever reason, and that Metzger should sit down and seriously think about it, because the Employer had.' 2 1m In evaluating the testimony of Mazurek. I have noted some inconsisten- cv therewith. In resolving such. I have given weight in such areas to the testimonv of Metzger and the stipulations of the parties. Although Metzger did not recall making this remark. Mazurek's testi- mon? was with a conviction that persuades me to its occurrence I have credit Mazurek in this respect. 2 Although Mazurek was unsure whether he so advised Metzger in his first or second conversation. I am persuaded such warning was probably given In the meeting of Nosember 17 Such a warning would appear a likely ('Cntinued 385 DECISIONS OF NATIONAL LABOR RELATIONS BOARD d. Metzgers followup on Respondent's second citation Metzger filed a followup charge with MIOSHA on what he initially viewed was an apparent continued failure on the part of Respondent to provide eye examinations as re- quired by MIOSHA's second citation against Respondent. The precise date of such filing is unclear. A copy of the followup charge filed with MIOSHA is in evidence. Metz- ger apparently did not date the original and there is some confusion in the record as to when exactly the followup charge was filed. 3 Subsequent to filing the followup charge, Metzger learned from a MIOSHA supervisor with whom he had earlier discussed the propriety of filing such a followup charge, that their prior conversation had in- volved error, in that the MIOSHA representative, in the interim, had learned that the Employer had previously ob- tained an extension to obtain certain eye testing equipment to comply with the second citation's requirements. In con- nection with the latter, Metzger also testified, without con- tradiction, that one day in the breakroom area he and two or three other employees were viewing the bill of sale which accompanied the visual testing device which had ar- rived and which the Company had purchased in order to give the test. Metzger recalled that he was with several em- ployees who were joking about it at the time. According to Metzger, on this occasion Mazurek approached them and also "very jokingly" stated that the Company had been given an extension on the required eye test to await receipt of that equipment. It was Metzger's recollection as well that that conversation had occurred prior to his "suspen- sion with pay." Mazurek did not deny either the conversa- tion or its timing. Although Metzger still had not authorized MIOSHA to divulge his name, I have found, supra, that Metzger had essentially revealed his past and potentially future involve- ment with safety problems outside the Company to Gro- cery Manager Becker after his return to work in late Octo- ber. Indeed, by positions taken in its brief, Respondent would appear to concede Becker's awareness of the likeli- hood that Metzger was involved in state filings which had occurred prior to November 17. Thus, in the absence of clear and convincing contradictory evidence, I credit Metzger's recollections in this regard. I also find that both Metzger's followup charge filing and Mazurek's conversa- tion in regard to extension of abatement date for receipt of equipment had both occurred sometime prior to November companion to the time granted off for reflection on Metzger's future with the Company and to Mazurek's relation that he had pressed the question with Metzger whehter there was an) misunderstanding between them: And we wanted to leave that meeting .... I know I had to ask Randy. is there anything you don't understand. any questions you have. be- cause upon your return after these two and a half days. you know I will want a commitment from you on coming to work every day. per- forming your job responsibilities.: working through your foreman. bringing problems to his attention, so that we can go to work on them 13 For example. the copy in evidence had dates of November 12 and 29 added to it. lowever. Metzger denied that it was he who had added the dates, and the authorship and significance of the date additions are other- wise unclear of record. Metzger otherwise testified that it was his best recol- lection that he had filed the followup charge prior to his (NoSember 17) suspension with pay. 17. Furthermore, from the above and attendant circum- stances of rumors heard by various supervisors that Metz- ger had filed safety complaints with the State, fair infer- ence is that Respondent was also aware that Metzger had filed a followup charge (however mistakenly) prior to Re- spondent's second meeting with Metzger about his atten- dance. I note such finding is plausible and consistent with certain other comments which I find were made by Re- spondent's agents (Soderberg and Mazurek) in that No- vember 17 meeting in asking Metzger to first come to the Company with his continuing safety concerns. Thus, Metzger testified that in that November 16 meet- ing Soderburg had said that he would appreciate it if Metz- ger would come to him personally with safety problems rather than going outside the Company to the State. Ac- cording to Metzger, he acknowledged on that occasion also that he had mentioned (safety) situations to local manage- ment and only when they did nothing aobut it did he resort to go to the Labor Department. Soderberg did not testify. Although Mazurek testified that the complaints he had re- ceived from MIOSHA never listed Metzger as the source of the complaint and that Metzger had never specifically advised him that he was responsible for those complaints, Mazurek candidly acknowledged that, from rumor at this time and an instance of an employee actually remarking over the public address system that "Randy's done it again" on an occasion when a MIOSHA inspector was present in the distribution center, he was generally aware, even at this time, that Metzger had filed complaints with MIOSHA. Mazurek further related that in one conversa- tion (which I conclude was also probably in the November 17 interview) Metzger had mentioned the subject of state intervention; and that Mazurek (also) had asked Metzger to bring his complaints to the Company first "as we would like to take care of our problems in house, if we can, which I feel is a better way of approaching problems." Thus, de- spite the record's clarity that Metzger's wish, as expressed to MIOSHA at all times, was that his name not be di- vulged, I am wholly persuaded by the entire record, and I find, that prior to the disciplinary suspensions of Metzger on November 22-24, Respondent had reason to be well aware of Metzger's considerable activity in filing safety complaints with MIOSHA and, of course, was well aware that two complaints had resulted in citations being issued against the Respondent. When Metzger returned to work on November 20, he initially met with Unit Manager Mazurek in the latter's office as directed. Also present was Union Steward Pierce. According to Metzger, Mazurek asked him if he still want- ed to work for Meijer. Metzger replied yes. Mazurek then asked Metzger what he had gotten out of the time he had been granted off by the Company. Metzger replied he had appreciated the time given off. According to Metzger, Ma- zurek then said, "I hope this will change your attitude or opinion about a lot of things out in the warehouse"; to which Metzger replied: "Well, if you are referring to any safety problems that have existed out there, it has not changed my mind a bit." Metzger did not testify that there was any further reply made by Mazurek to him at that time. While Mazurek did not specifically deny that Metz- ger had made the above remark, his version of the earlier 386 MEIJER WHOLESALE. INC. interview and context of the November 20 conversation warrants some further elucidation. According to Mazurek, he felt that in the November 17 personal interview with Metzger, which lasted about 2 hours, everything had been said that needed to be said, including a warning that Metzger's absences had been such that, if they continued, the Company might have to move on them; that it was a serious matter for the Company and to him as unit manager; and that Metzger had been conse- quently given 2-1/2 days off with pay to reevaluate wheth- er he should continue his employment with the Company.14 Mazurek testified that Metzger returned to work on No- vember 20 (a Saturday), since Respondent had its special holiday (Thanksgiving Day) schedule then in effect. Ac- cording to Mazurek, when Metzger appeared in his office on that day with Union Steward Pierce, the conversation was a brief one. Mazurek inquired what Metzger's answer was and Metzger replied he wanted to return to work. Ma- zurek asked whether his attitude had changed because of the concern the Company had exhibited in first talking to him and giving him 2-1/2 days off to reevaluate his posi- tion. According to Mazurek, Metzger in this conversation expressly acknowledged that he thought that the Company had been very fair with him in giving him the time off with pay to evaluate his position.' 5 Mazurek also testified that Metzger's expression of desire to return to work was given in a positive manner such that it had encouraged Mazurek at the time. Metzger testified to an additional conversation he had with Soderberg after he returned to work following his sus- pension with pay at the receiving dock. Soderberg inquired how Metzger was and how everything was going as far as safety was concerned. According to Metzger, he replied that it was pretty bad, and he wished "you people could do something about it." Soderberg asked what he meant and told Metzger all he had to do was tell him about it. Metzger noted that Soderberg was located in the Grand Rapids home office and added that he had stressed certain matters to local managers and foremen, but they were not doing anything about it. According to Metzger, Soderberg replied that he should just come to him about it and added that he would appreciate it if Metzger would not go to the State again, that he was fully capable of handling any safety situations. However, Metzger did not testify that he brought any specific complaint to Soderberg's attention at this time. The record reveals that on one occasion he did call Soderberg about a safety matter. The subject matter or results do not appear of record. 14 The discussion was confirmed by a letter which, according to Mazurek, referred to time being given off for Metzger to evaluate management's criti- cisms in regard to his absences, job performance. and general attitude. Metzger denied that Mazurek ever discussed productivity directly with him. The letter itsell was not offered by either party, although Charging Party was in possession of it. On the other hand, Metzger concedes that several supervisors subordinate to Mazurek had earlier discussed his lowered pro- ductivity with him on several occasions; and the record reveals that Mazu- rek had discussed same with the supervisors. Under these circumstances. I credit Mazurek's testimony that such a letter was sent to Metzger and Mazurek's testimony as to its content as well. Is Metzger admitted generally that 2 days off with pay for such evaluation had been highly unusual; and that he had on one occasion stated to the Company that it was bending over backwards with him to treat him fairly. e. The events of November 22 Having been reassigned to paper hi-lo, Metzger was working in the paper section in November. Metzger's es- sential work assignment was to keep replenished three to four aisles of bins that held paper stock merchanidse that would be selected directly by circulating selectors for indi- vidual stores. Metzger testified that about 10:30 p.m. on November 22 his hi-lo #81 sprung a hydraulic leak and he routinely brought it to maintenance to be repaired. Mainte- nance mechanic Gale Klein told Metzger that he was busy working on another hi-lo and that Metzger would have to use another hi-lo. According to Metzger, he then checked three or four other hi-los just outside the maintenance area, where spare operative hi-los were usually kept. Metzger relates that he found them all to be defective, as either their brakes or horns did not work. On cross-examination, Metz- ger testified that he did not advise Klein at the time that all the hi-los were in need of repair. Metzger did not recall Supervisor Grandy being called to the maintenance area but rather that he then had walked to the front loading dock to report to Grandy the circumstance of no hi-los being available and to inquire if Grandy knew where there was a hi-lo that he could use. According to Metzger. Gran- dy had then told him to use the hi-lo on the dock. Metzger replied that he would check it out. According to Metzger, Grandy then told him "don't check it out, just drive it." However, when Metzger checked the hi-lo out he found that its brakes also were not working. He reported that circumstance to Grandy. Metzger testified that Grandy be- came flustered and angrily told Metzger that he was be- hind on his job that night, anyway, and then sent him home. Grandy told him that he would be on suspension until Tom Mazurek would call him at 11 a.m. the following morning. Metzger reported the suspension to his steward.' On the following day, Mazurek called Metzger and advised him that Grandy had reported he was not doing his job the prior evening and that Mazurek was therefore suspending him for two (additional) days without pay. Metzger denied that he had regularly had any productiv- ity problems in paper section and asserted that other hi-lo operators had only occasionally been assigned to assist him, and no more so than when others had worked paper stock items. However, on the evening of November 22, Metzger admits that he was way behind in his work. Metz- ger would partly explain that work conditions with the con- sideration of the business that was done [sic]. Thus Metzger testified that just before Thanksgiving everything moves rapidly, since stores generally order twice their regular amount, and one selector may thus take a whole skid of paper product at a time. Metzger asserts there were many selectors working that night, and the record supports that as many as 12 selectors were selecting orders in the aisles at one point. Further, the number of selectors in the aisles I, Although the propriet) of such disciplinary action is subject to griev- ance review under the contract. no grievance thereon was subsequently filed. Metzger did file a complaint with MIOSHA alleging that his suspen- sion was because he had filed several complaints with that agency. The record reveals that on Apnl 5, 1977, MIOSHA declined to proceed on the basis that there was insufficient evidence that such was the case 387 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (with their carts) tended to appreciably slow down the rc- plenishment process. It is clear from the record, and I find, that it was an unusually busy night. However, on cross-examination, Metzger also testified that he personally had continued to not move his hi-lo while the forks were in the air because he continued to feel it was unsafe. Metzger also conceded that, as a result, it took him longer to do his work than it did the other hi-lo drivers. Metzger conceded that other operators had worked the paper section without the diffi- culty he experienced. Metzger himself attributed the way he operated his hi-lo as accounting for one-half of his diffi- culty in keeping up with the replenishment of paper stock. Supervisor Grandy's version of the events of the evening of November 22 were considerably different than that tersely recalled by Metzger. Thus Grandy testified that it was about 5 p.m. that he had initially received a call from a selector that the paper bins were getting empty and that Metzger was not to be found in his section. On his way to the paper section, Grandy received a similar call from an- other selector. When Grandy arrived in the paper section, he personally observed that several slots were already emp- ty. Grandy called for Metzger and was advised by Metzger that he was in the maintenance area. When Grandy arrived at maintenance, he observed that Metzger was standing around and that Klein was working on Metzger's hi-o #81. Grandy asked what was wrong. Klein answered that it was the fork side shift (left and right) and that it was going to take about an hour to fix it. Grandy relates that he then told Metzger that he had quite a few "outs" and sug- gested that he use one of the other hi-los that were in the maintenance area. According to Grandy, whom under the total circumstances I credit, Metzger initially replied that those hi-los were old. Grandy replied, "they run," and asked Metzger to try one. Metzger then got on one and said the seat brake did not work. According to Grandy, mechanic Klein got on it, and said it worked. However, in this respect, mechanic Klein does not wholly corroborate Grandy, as Klein recalled that on an occasion when he tried the seat brake for Metzger, he found that there was some drag but not what it really should have. Metzger did not recall this incident in the maintenance area. Paradoxi- cally, Metzger had testified that if a seat brake had any drag it should be considered functional and used.t7 Grandy recalled that he told Metzger to try another. Metzger did. Grandy observed Metzger drive off toward his paper sec- tion and Grandy then returned to his own duties. Some time later however, Grandy received a call from Klein, who at that point was upset and reported to Grandy that Metzger had been bringing "hi-los" back in all night. Klein requested that Grandy get back there. When Grandy ar- rived, he observed Metzger there with another hi-lo which had fluid leaking from a hose. At that point Grandy told Metzger that he should go to work up at the front dock. Grandy instructed Metzger to use the small hi-lo at the dock to clean pallets out of the trailers. In the interim, 17 Seat brakes are designed to keep a hi-lo from moving when unattended. e.g., when left on an Incline of which there were a few in the warehouse. The seat brake was not designed to operate as a brake for driving. regular brakes being provided for this purpose. However, apparently some operators did misuse the seat brake for the latter purpose. Grandy sent another hi-lo into the paper section to work that area until lunch. According to Grandy, after lunch Metzger obtained another hi-lo, returned to his paper sec- tion, and again began pulling "outs." Grandy concedes it was an unusually busy night. How- ever, by 1 : 30 p.m. he became aware that there were many outs in paper section and that, as of that time, because of the condition of the paper stock, only 3-4 out of some 25 store orders had been completed. He then called Metzger to the office and suspended him for the evening for failure to do his job. Grandy testified, with employee corrobora- tion, that he had to put four or five hi-lo operators in the paper section that even to catch up on the "outs." 18 Gran- dy also testified candidly that prior to that evening he was aware from employee talk that Metzger had filed safety complaints. Grandy testified that such filings had nothing to do with his suspension of Metzger on the evening of November 22. Grandy confirmed that in suspending Metz- ger he told Metzger that he was suspended because of the number of "outs" in his section and for failure to perform his job. On cross-examination, Grandy acknowledged that he had also told Metzger that he had caused overtime and was creating friction with other employees.t 9 However, Grandy reaffirmed that the reason he sent Metzger home was the "outs" and his failure to perform his job. Unit Manager Mazuiek substantially corroborated Grandy. Thus, Mazurek recounted that he received a call from Grandy, who reported to him that Metzger just was not working that night. Mazurek exclaimed, "Come on . .. the man just gave me a commitment Saturday. What's the problem?" Grandy replied that Metzger was way be- hind in his section: his productivity had not been there; they had a number of outs still to pull; that Metzger was complaining about the hi-los, and he had an employee up- set in hi-lo maintenance. Mazurek testified that, on hearing this, he then instructed Grandy to "send him home"; and to notify Metzger that he was on suspension until Mazurek called him at 11 a.m. In the interim, Grandy was instructed to make out a full report of the incident and have it on Mazurek's desk in the morning. After reviewing Grandy's report, Mazurek first called his home office to advise them that he had decided to suspend Metzger for 2 days without pay. Mazurek then called Metzger and informed him he had "dropped the ball" after the Company's prior treat- ment of him and now, "I thought it necessary that he take 2 days off without pay." 20 Mazurek denied that safety was t Grandy also testified generalli and with equally significant employee corroboration that he had to put hi-lo assistance in the paper section more often with Metzger as the paper hi-lo operator than with others. and also had to provide him with assistance more often than he had to with other hi-lo operators working other bulk items, e.g., cereal. I The friction arose from employees being affected in. or taken away from, the performance of their own jobs Grandy explained further. how- ever. that he could have handled such friction between employees as he had in other circumstances, but that it had not helped the situation that night. 20 In evidence is a copy of Respondent's record of "personnel interview" on this incident given Metzger for "unsatisfactory attitude and/or perfor- mance.'" which provides: "On November 22. 1976 at approximately 12:15 a.m. Randy was suspended for failure to perform his job (creating friction between employees and causing overtime). Because of this Randy was given 2 days off without pay. which was Wednesday. November 23 and Thursday. November 24. 1976. If this problem should persist it could lead to further discipline up to and including termination." The disciplinary report was 388 MEIJER WHOLESALE, INC. mentioned by Grandy in his report of Metzger's nonperfor- mance of work and asserts also that Metzger's activity in safety matters had nothing to do with his suspension. Ma- zurek testified that it was his overall opinion that Metzger was a good employee, but that essentially on that evening it was apparent to him that Metzger had made up his mind that busy evening not to do the job he was capable of doing for his supervisor. According to Mazurek, after this disciplinary measure and warning and up until he quit in May 1977, they had no further problems with Metzger in the regular performance of his work. There was other and appreciable evidence from employ- ees that was substantially supportive of Respondent's over- all evaluation of Metzger's work performance that evening. Thus, hi-lo operator Don Adams, a witness called by Gen- eral Counsel, testified that he had worked paper aisles be- fore; that at times it was difficult to keep up the paper section; that he had on occasion required assistance of an- other hi-lo operator in a busy period. However, Adams did not know that four or five hi-lo operators had been used in the paper aisles that evening; and I find that Adams' fur- ther testimony was revealingly significant when he testified that if that many had to be used, "I would say something was wrong." Hi-lo operator Lawrence Efting, also subpe- naed by General Counsel, when called by Respondent tes- tified that he had been sent after supper (thus after 9 p.m.) into the paper section to help out, and that on one occasion he had observed Metzger over a 5-minute period going back and forward in the aisles as if "hiding" from someone and that there was no reasonable work explanation for Metzger's observed actions at the time. Efting also testified credibly that he had previously been called in to assist Metzger in bulk paper much more often than he had the operator in bulk cereal. Hi-lo operator Herman McElwee, similarly called by Respondent, testified that while work- ing quad-3 he had observed Metzger off and on over a 15-minute period that evening, and, for a significant pe- riod, he had observed Metzger without any product. Mc- Elwee also testified that Metzger was not pulling product that evening the way other hi-lo operators were. Metzger testified that he was not aware that Grandy had been called to maintenance by mechanic Klein because of his presence in that area. However, mechanic Klein cor- roborated Grandy in this respect, as well: which is the more significant because he had never had occasion to call him before. While I have noted some variances in Klein's recollections as to Metzger's actions that evening in the maintenance area, as compared with Grandy's recollec- tions, nonetheless his testimony is essentially supportive of Grandy, and not Metzger. Indeed, Klein's recollections support more definitive findings that Metzger was in the area "killing time" and interfering with Klein's work, e.g., talking to Klein to the point where Klein personally felt he had to call Grandy to get Metzger out of his way on a busy evening. Finally, I note McElwee's testimony when called as a rebuttal witness that when hc was sent to the paper section to pull "outs" shortly after Metzger had been sent home that he had directly asked Grandy why he had sent signed hy Supervls,or (r;and,. a.pproved h, Maiurek, and hore (witness) signature of Union Steward Pierce Metzger home. Grandy replied to MicElwee on that occa- sion that "he was tired of Randy messing around." f. Metzger's third (postdiscipline) safety complaint On December 20, Metzger filed still a third complaint with MIOSHA covering several matters, notably including a claim that most of the lift trucks' parking brakes did not work; and, significantly, Metzger reraised the matter of hi- los being operated again with forklifts raised in an unsafe manner. Metzger charged that there was a lack of concern by lower management and claimed that the "original situa- tion still existed." These matters were investigated Decem- ber 22 (thus, similarly, shortly before a holiday). A third citation issued from MIOSHA finding that some 7 of the 16-18 hi-los had apparent defective seat brakes, including Metzger's regular hi-lo #81. The citation prohibited the use of trucks with brakes that did not perform their func- tion. Significantly, there was again no citation in regard to second shift operation of hi-los in the warehouse, e.g., with forks raised. Finally, Metzger himself testified on cross- examination that Soderberg, Mazurek, and Becker had each always told him that the Company was interested in safety and that Mazurek had never specifically told Metz- ger to change his attitude about safety. As noted, Metzger was not subjected to any disciplinary action following No- vember 24. Analysis, Conclusions, and Findings General Counsel contends that Metzger's filing of safety complaints with MIOSHA and oral safety complaints reg- istered with his supervisors constituted protected concerted activity. General Counsel argues that these various safety complaints should be concluded as involving protected concerted activity because, although in part benefiting Metzger personally, they also had as their end an improve- ment of safety conditions for all employees. Thus, the Gen- eral Counsel contends for the applicability of the Board's holding in Alleluia Cushion Co., Inc., 221 NLRB 999(1975), to Metzger's continued efforts to enforce statutory MIOSHA provisions regulating occupational safety for the benefit of all employees. General Counsel contends that Metzger's actions may properly be viewed as an attempt to enforce the contract's provisions for Employer-Union co- operation in safety matters, and thus the Board's holding in Roadwav Express, Inc., 217 NLRB 278 (1975), is to be deemed equally applicable. In that connection, General Counsel argues that the Act's protection is not dependent on the merit of the contractual claim that is advanced or on whether the employee expressly referred to the applica- ble contract or is even aware of its existence, citing John Sexton & Co., a Division of Beatrice Food Co., 217 NLRB 80 (1975); The Singer Company, Climate Control Division, 198 NLRB 870, fn. 5 (1972). It appears that General Counsel also urges that a showing of concerted activity be made out as well in regard to the direct means employed in pursuit of safety complaints, in that General Counsel specifically notes it as being significant that Metzger was joined in his MIOSHA action by Union Steward Pierce. General Coun- sel argues that Respondent's management and immediate 389 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisors were well aware of Metzger's continuing in- volvement in various safety concerns and that on the very day of his suspension Metzger is to be viewed as essentially protesting unsafe working conditions in his refusal to use hi-los with defective brakes, horns, or lights. Thus, the con- clusion is warranted, so argues the General Counsel, that Metzger's continuing concern for safety, evidenced again that evening, was the real reason that he was suspended. General Counsel argues that at least it is thereby shown that Metzger's continuing safety pursuit was "one reason" for his suspension, and need not be shown to be the "only reason," under Board and court holdings as noted in N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885 (Ist Cir. 1953), and other similar cases cited. Finally, General Counsel notes that since the alleged violation of the Act herein is of Section 8(a)(1), that motivation is not an indis- pensable element. Accordingly, it is General Counsel's contention that since the disciplinary action herein neces- sarily must be viewed as arising, at least in part, out of protected activity, Respondent's discipline therefor, to that extent, necessarily tended to interfere with that free exer- cise of protected employee rights, Litton Dental Products, 221 NLRB 700 fn. 2; N.L. R.B. v. Great Dane Trailer's, Inc., 388 U.S. 26 (1967). General Counsel thus argues that Sec- tion 8(a)(1) has necessarily been violated irrespective of Respondent's actual motive in meting out the disciplines of November 22-24. The Cooper Thermometer Company, 154 NLRB 502, 503, fn. 2 (1965). In contrast, Respondent contends that General Counsel has failed to meet his burden of establishing that Metzger's action (1) was "concerted protected activity" rather than individual unprotected action or was action that may be properly viewed as action taken to effect terms of the con- tract because of the contract's only general provision on safety cooperation; and (2) has wholly failed to establish in any event that the November 22-24 suspensions were an improper interference with such protected rights rather than appropriate and warranted disciplinary action in re- sponse to a clearly evidenced failure on Metzger's part to perform his job that evening and, thus, disciplinary action that was warranted independently of any concerted activi- ty consideration, Erie Strayer Company, 213 NLRB 344 (1974). While I view Respondent's first contention as un- persuasive, I find myself in agreement with Respondent's second contention on the basis of my assessment of the weight and thrust of the entire record evidence before me relating to that disciplinary suspension. Thus, I initially find that the case for presence of con- certed activity is sufficiently made out herein both as to employee purpose or ends intended, viz, establishment of safe operating conditions of hi-los in a warehouse area worked not only by Metzger but by other employees, and on the basis of means employed, viz, the joint action of Metzger and Steward Pierce in enlisting the aid of MIOSHA, an agency lawfully charged with certain en- forcement responsibilities in the safety area. Generally, it would seem that a showing of engagement in protected concerted activity under the Act is made out in a showing of an employee's pursuit of safety objects or ends, either through an attempted enlistment of the aid of a statutory agency charged with that responsibility (with demonstrated or implied consent of other employees) or by circumstanc- es reasonably amounting to an effort by the employer to enforce or implement claims in furtherance of rights under existing contractual provisions in which other unit employ- ees may be presumed to have a concerted interest, or by other direct (concerted) means employed, e.g., direct joint employee action. The case for statutory concerted activity is, in my view, made out. Here, Metzger's enlistment of MIOSHA for review of certain questioned safety consider- ations in employees' working conditions and Respondent's general awareness of same is indisputable. The Board in considering an employee's action taken pursuant to California's Occupational and Safety Act in Alleluia Cush- ion Co., supra at 1000, has pointed out: It would be incongruous with the public policy enun- ciated in such occupational safety legislation (i.e.. to provide sate and healthful working conditions and to preserve the nation's human resources) to presume that, absent an outward manifestation of support, Henley's fellow employees did not agree with his ef- forts to secure compliance with the statutory obliga- tions imposed on Respondent for their benefit. Rath- er, since minimum safe and healthful employment conditions for the protection and well-being of em- ployees have been legislatively declared to be in the overall public interest, the consent and concert of action emanates from the mere assertion of such statutory rights. [Emphasis supplied.] Accordingly, where an employee speaks up and seeks to enforce statutory provisions relating to occupational safety designed for the benefit of all employees, in the absence of any evidence that fellow employees disavow such repre- sentation, we will find an implied consent thereto and deem such activity to be concerted. Metzger's complaints in their scope clearly extended be- yond considerations of his personal safety, and his object, even on this record convincingly establishing personal con- cern, must be viewed as reasonably encompassing, as well, the well-being of his fellow employees. To be sure, as raised by Employer, there is some direct evidence of a lack of such concern by certain individual hi-lo operators and indeed a (general) admission by Metzger of seeming "total lack of concern" by his fellow employees in his efforts. But generalized statements of an individual charging party are not of such a nature as to compel the factfinder to such conclusion, where other credible evidence conflicts and pervasively reveals that the admission is to be regarded, at worst, as overgeneralized and improvidently made. Here, Metzger was indisputably joined in his action by Union Steward Pierce. This fact is evidenced both by Metzger's uncontradicted testimony and by Pierce's act of signing the initial complaint filed with MIOSHA. Furthermore, in doing so, Pierce identified himself as a union steward. Moreover, the record reveals that the steward joined in such action after discouraging Metzger from following ex- isting grievance procedures because the steward believed that the joint cooperation provision contained in the con- tract (whether mistaken in such view or not) was too gener- alized in nature, and, thus, not to be deemed likely to result in bringing about any definitive safe "working condition" 390 MEIJER WHOLESALE, INC. result desired. Consequently, the conclusion is warranted that Steward Pierce joined in Metzger's alternative effort to have the safety conditions of second-shift operations re- viewed by the state agency entrusted with such responsibil- ity, in this instance, on the more specific public level. I do not read the Board's holding in Alleluia Cushion, supra, as extinguishing an otherwise protected concernted right by presence of some evidence that some employees, or even most, may, at the time, not have been similarly motivated or concerned, or even share any interest as the petitioning employees. Rather, it would appear that the Board there was setting forth a condition wherein implied consent with safety concerns being processed might be viewed as pres- ent, noting such was conditional on the absence of other "manifestation of support." In my view, General Counsel sufficiently meets his burden of establishing protected con- certed activity in establishing direct and specific concert of action by at least some other employees, however minimal such may be.2 Nonetheless, I also conclude and find that the General Counsel's evidence has otherwise failed to predominate in showing, and thus wholly failed to persuade me, that Re- spondent's suspension of Metzger on November 22-24 was because he had earlier registered or continued his pursuit of safety concerns (either with MIOSHA or with his super- visors). Thus, apart from a consideration of the present case (as one of certain cases), where Respondent's motive is unlawful and revealed, General Counsel otherwise failed in his burden to establish that Respondent's disciplinary action tended to interfere with Metzger's exercise of a pro- tected right. I do not find that the discipline arose inextri- cably out of a continuing exercise of a protected right that evening, in the face of supporting and convincing evidence that the disciplinary action was one reasonably deemed warranted and appropriately taken by Respondent inde- pendently thereof, and for a clearly discernible failure on the part of Metzger to properly perform his job that eve- ning, with but collateral undesired effects of having gener- ated some friction with coworkers and needlessly caused some measure of increased overtime to Respondent.22 2l In my view, two employees are enough. There was no evidence to con- tradict Metzger's testimony that his subsequent complaints met with Stew- ard Pierce's approval. Thus. I would find that Pierce's Joining in Metzger's safety efforts, even if to be regarded as no more than as an individual employee, is itself sufficient, apart from considerations of what appears to me to be reasonable inference that Plerce's action was in actuality indicative of significant unit employee safety interests by virtue of his signing as stew- ard. This inference seems particularly warranted herein where, as noted. the steward had evaluated the contractual right and then had discouraged an, effort by Metzger to enforce contractual provisions by aailable grie.ance processes. In the latter connection, and because of the abo'e unique circum- stances of the steward's discouragement of Metzger's using the grie.ance process. I am not persuaded by General Counsel's arguments for the appli- cability of the Board's holding in Roadvii Expresr. Inc. supra. on the facts of this case, concluding as I do that these employees had consciousI, elected not to proceed under the terms of the existing contract and, thus. are not Io be concluded as in fact insisting on contractual rights That the Respondenl may not have been aware of the stewvard's inolsemenl in the IO10SHA action is not controlling on the determination of whether there was erlplo,- ee engagement in protected concerted activits within the meaning o.f Sec 8(al I of the Act. 2 1 have not overlooked the conflicting esidentiarN circumstance that Grandy testified that a number of coworkers of Metzger (naming fie such employees) had complained to Grands that evening about Met.ger's lack of For a significant time, Metzger had had production problems stemming in considerable measure from his per- sonally instituted procedure in refusing to operate his hi-lo with forks raised at all, which has never been required by MIOSHA rulings. As cogently pointed out by Respondent, the record evidence before me is clear and convincing that Metzger was way behind in his work performance the eve- ning of November 22. Indeed, it appears so, to the point where a previously unheard-of amount of hi-lo assistance was required in his section to complete the night's work. Nor can I conclude on this record that Metzger was behind primarily due to the unavailability of properly functioning (safe) hi-los, or even solely because of his personal method of operating a hi-lo. Thus, a number of different coworkers of Metzger have established beyond any real questioning that "something was wrong" in Metzger's work perfor- mance in his section that evening; that Metzger was away from his section "killing time" rather than working as he should have been; that Metzger was actually reported to Shift Manager Grandy as having interfered with the work of others on a busy evening; that when Metzger did work the aisles, he was not pulling product like other hi-lo opera- tors; rather, at a time when there were many "outs" in his section he was observed driving the hi-lo as if "hiding": and was observed operating in the aisles otherwise in a manner that could not be explained reasonably as in per- formance of his regular work. Thus, there is significant evi- dence fully supportive of the conclusion independently reached by Shift Manager Grandy, viz, that Metzger was simply and unacceptably "messing around" that busy eve- ning, for which he was accordingly disciplined, as asserted by that supervisor for failure to perform his job. The fact that such conduct occurred following on the heels of the recent November 17 serious and fair warning given Metz- ger (at least relating to the necessity of his regular atten- dance to perform his work), a matter I note which was itself not alleged to have been one accomplished in any way in violation of the Act, only strengthens Respondent's case for the propriety of Unit Manager Mazurek authoriz- ing Grandy's disciplinary action that evening and the sub- producilits and about having to do his work and that General Counsel has introduced some cointradicring testimon) of employees Efting and McEI- wee To the extent Efting's and McElwee's testimony is inconsistent with Grands's recollection. I credit employees Efting and McElwee. However. On the status of this entire record. a further conclusion that there were no such emplosee complaints that esening would be in m? view wholl? un- sound (;randN's testimon, of earl) calls by selectors that evening complain- ing about the status of the paper section and his own observances are un- contradicted Grand!'s testimony of receiving such complaint from emplo)ees other than Efting and McEIwee remains uncontradicted. Metz- ger has conceded that he had discussions with employees about the effects of his lowered productivits in earlier months (Grandy's testimony that cer- tain hi-li operators registered such complaints is not inherently implausible testimony Rather. to the contrars. that some employees would express a dlscntenil oser being taken off their orn Jihs Ln a busy evening to perform Metzger's functions In paper section is. to me, inherently plausible. In ans eent, I note that this discontent was not the reason that Shift Manager Grands sent Metzger home Similarly with regard to the reference to Metzger's causing additional *r;ertime. I conclude that there is supxport for same from the e'idence tof extraordinars depletion of stock. the low figure of filled orders, and the unusual number of hi-lo operators required to be dispatched to his section. Grands's claim of increased oertime Is thus sup- ported and plausible on this record. howeser difficult the degree of such might be to assess because of the likelihh,d that there would have been some overtime requirement due to the normal prehohlidas business increase 391 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sequent layoff without pay for the next 2 days. There is no direct evidence that Respondent had ever warned Metzger about his safety efforts. Given such circumstances denot- ing deficient work performance, coupled with the consider- ation of the nature of the discipline actually meted out, I cannot conclude that Metzger's concerted activity (earlier or that evening) was a substantial or precipitating factor in the suspensions for apparent misconduct in Metzger's fail- ure to properly perform his work that evening. Eric Strayer Company, supra at 345. General Counsel's evidence of Metzger's concern for driving safe hi-los that evening (however genuine and protected) simply is insufficient in my view to explain or ameliorate the evidence from his supervisors and coworkers of his other improper conduct that evening, and, thus, fails to predominate or persuade me that Metzger was disciplined that evening because of circumstances connoting continuing safety emphasis on his part rather than as asserted by the Employer because, for whatever reason, Metzger had elected to fail to satisfac- torily perform his job in the fashion that he was capable of doing, and which management had a right to expect of him, as it did of all employees, on an admittedly very busy evening. To be sure, there is evidence that Respondent's agents, particularly its safety director, Soderberg, and unit manager, Mazurek, made requests that Metzger bring safety problems initially to the Company. In the context of this case, there is no evidence to warrant a conclusion that such remarks contained sinister or otherwise veiled threat- ening overtones. To the contrary, under the circumstances of this case, such requests appear to have been no more than reasonable employer requests on matters of expressed joint interest and such as would serve to avoid misunder- standings such as occurred with regard to the followup charge. I thus find that there is insufficient evidence that Respondent's suspension of Metzger on the evening of No- vember 22 and the additional suspension (layoff) of Metz- ger for 2 additional days on November 23 and 24 were accomplished because Metzger had engaged in and contin- ued to engage in protected concerted activity, or that the same may appropriately be concluded to have constituted an interference with employee rights guaranteed by Section 7 of the Act, in violation of Section 8(a)(l) of the Act. Accordingly, I shall recommend that the complaint herein be dismissed in its entirety. CONCLUSIONS OF LAW 1. Respondent is, and at all times material herein has been, an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. The General Counsel has failed to prove by a prepon- derance of the evidence in the allegations in the complaint that the Respondent violated Section 8(a)(1) of the Act in the suspensions of employee Randall Metzger on Novem- ber 22-24, 1976. 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: ORDER 23 The complaint should be, and it hereby is, dismissed in its entirety. l In 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. 392