Perremoud, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Perrenoud, Inc. and Larry John Kinderman. Case 18 CA 5173 June 9, 1978 DECISION AND ORDER BY CHAIRMAN FANNIN(; AND MEMlBHIRS JE NKINS ANI) Mt RPI'Y On April 20, 1977, Administrative Law Judge Mel]- vin J. Welles issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions 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 Administrativ e I aw Judge. to adopt his recommended Order, and to modifs the remedy so that the interest is to be computed in the manner set forth in Hflorida Sce/l ('orporaliotL 231 NLRB 651 (1977). Contrary to our dissenting colleague. we agree with the Administrative Law Judge's conclusion that Respondent discharged Larry John Kinderman be- cause he engaged in protected activits i.e., he coni- plained to the Union that he wsas allegedly not receiv- ing the correct contract wage scale. Respondent is engaged in the installation of under- ground pipe in Wisconsin. Its operation is seasonal, with peak employment of about 70 employees in the warm weather, down to about 15 emplovees from November through March. Respondent was a parts to a contract with International Union of Operating Engineers, Local 139B. AFI. -CIO, and Kinderman was a member of the Union. While Kinderman was employed as an equipment operator in June 197 6.1 he complained to Phil Pru- sak. his business representative, that he was not being paid the proper operator's scale pursuant to the col- lective-bargaining agreement.2 Prusak apparently agreed with Kinderman and said that he would talk to Jack Parr, another business representative. At a later unspecified date, but presumably in earl or All dates hereinafter ire 1976 2Although the Adnministratlve I aw Judge was ataicl of thii testlnlillOni he found it "somewhat confusing. though n1ot imporlant teo the res.olull-ll iti this case." and observed that "'i Jinte [Kinderinl;l] was being pli full operator's scale." As noted iliirtl, anld as more flull discussed hclh-s. Kinderman's basis for going to the I nion was that he bch liecd trha hlic ias not receiv ing the correct c'ontratl rale for peralting etquipmcil Irn/ill ait ilt June until August 14 midsummer, while he was still employed as an opera- tor., Kinderman spoke to Parr, at which time the lat- ter said that he was not sure about the scale for "working at a landfill." On August 14, Kinderman spoke to Respondent's president. Stephen Perrenoud, "regarding his wages." Also on August 14, Perrenoud informed Kinderman that he had no more work for him as an operator) but Respondent offered to keep him on the payroll as a truckdriver for $7.50 an hour. Kinderman accepted Respondent's offer and worked as a truckdriver until he was discharged. After he began work as a truckdriver, Kinderman complained to the Union that he was not being paid operator's scale. The Union, being unaware that Kinderilan was now working as a truckdriver, re- laved these complaints to Respondent's president, Perrenoud. In fact, on October 1, according to Perre- noud. Union Representative Parr called and said that Kinderman had "a grievance .. . and that IRes- pondent] would have to pay him operator's scale for all the hours that he worked that summer." Shortly thereafter. Perrenoud admitted, he approached Kinderman at a jobsite and harshly criticized him for going to the Union before talking to Respondent about his wages. Furthermore, Respondent admit- tedly discharged Kinderman and told him that he would never work for him again. These facts clearly make out a violation of the Act. We note that the above facts are those credited by the Administrative Law Judge. Our dissenting col- league. however, has set out another set of facts upon which, she asserts, the Administrative Law Judge made no credibility resolutions. She notes that Perre- noud testified he also told Kinderman in the dis- charge conversation that he would not pay operator's wages for truckdriving; she then finds, through a self-evidently strained process of reasoning, that Kinderman's testimony is not inconsistent with this additional testimony of Perrenoud: and she finds that employee Zenner. who was credited by the Ad- ministrative Law Judge on another point, confirmed the additional testimony. She therefore finds that Perrenoud's statement that he could not pay operator's rates for truckdriving stands "essentially uncontradictcd." In this conclusion, our colleague is in error for her analysis overlooks the testimony of Howard Rvan. another employee witness to the dis- charge incident, whose testimony was also credited b' the Administrative l.aw Judge. Ryan testified that he did not hear Perrenoud say that he could not af- ford to pay operator's wages for a truckdriver.4 Kinderml in greedihar the lparticula r ohb no which he was operating eqtlipmelt i a, fim41e d t 1 - Auiuvl 14. 4 s hiC Zllfcet nlld.il.ti that RKlin u.\ nrot picscilt for Lill the Perrenoud- Kinlderilan din ha tir.a c rtl. erSalton, Rs.an'S te<slnrlnNl .appears to indicate Otlleli. .se 236 NLRB No. 92 804 PERRENOUD, INC Ryan's testimony is not inconsistent with Kinderman's testimony on this same point. On the other hand, both Ryan and Zenner corroborate Kinderman and Perrenoud that the latter criticized Kinderman for going to the Union and told him that he would not work for him again. In sum, we are not persuaded that Perrenoud's statement about an ina- bility to pay operator's rates for truckdriving w1as "essentially uncontradicted," as our colleague would find. Moreover, even assuming that Perrenoud also in- dicated to Kinderman that he would not pay operator's wages for truckdriving as a reason for dis- charging Kinderman, this does not detract from our finding that Kinderman's going to the Union about allegedly being paid less than scale precipitated his discharge. Our dissenting colleague has lost sight of this fact as she has built her view of the facts in this case into an ultimate finding that it was solely Kinderman's "insistence on operator's pay that caused his discharge." She has reached this conclu- sion in the face of Perrenoud's own admission to the contrary and on the basis of a reliance on a set of ultimately irrelevant facts; e.g.. that Perrenoud him- self had been a member of the Union for some 27 years. Even if our dissenting colleague is correct in her view that Kinderman was discharged because he sought pay of $10 per hour for driving a truck, it does not follow that there was no violation. Whether he sought the Union's aid in obtaining $10 per hour or claimed $10 per hour, even erroneously. under the contract, his conduct was protected. There is no sug- gestion in the record, apart from his efforts to obtain the higher rate, that he refused to work for $7.50 per hour. Such refusal, of course, would have provided the basis for an economic discharge. In the face of Perrenoud's own testimon\, and that of employees Kinderman. Zenner. and Rvan, it is clear that Respondent violated Section 8(a)(3) of the Act :ihen it discharged Kinderilan. and we so find. ORDER Pursuant to Section I0(c) of thec National l.abor Relations Act, as amended, the National iLabor Re- lations Board adopts as its Older the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Perrenoud, Inc., Chippe- wa Falls, Wisconsin, its officers, agents. successors. and assigns, shall take the action set forth in the said recommended Order. ME MBhR MURPHY. dissenting: Employee Kinderman, the atlleged discriminatee. was a hea'sy equipment operator paid at an operator's rate of $10 per hour. apparently specified in a contract with the Operating Engineers. On Au- gust 14, work ran out for Kinderman as a heavy equipment operator and he was so notified by Perre- noud. Respondent's president. He then inquired if there was not something else he could do, to which Perrenoud replied that he could drive a truck but onls at the $7.50 driver's rate apparently specified in a Teamsters contract. Kinderman agreed to this condition and took the truckdriver's job. fie w as paid at the $7.50 driver's rate. Thereafter, on September 30. Kinderman com- plainled to his Union. the Operating Engineers, that he wNas not being paid properly. The next day a union representative notified Perrenoud that Kindermar would have to be paid the proper the heavy equip- ment rate of $10 an hour. Perrenoud straight away sought out Kinderman who was driving a truck on a lob. criticized him for running to the Union rather than comnirn to himl. made a reference to the "'god- darm" Lni on. and also stated Kinderman would nev- er \orki for him agailn. Perrenoud also told Kinder- man that he could not afford to pay operator's wages for truckdriving. ' however, Kinderman was then I nfoiituiinitel. there i soe .imhieumll in the Adminlstrative l.aw J.lud:'_ iredilbhti filillinhs enllcering what was said h; Perrenoud Ito Killlerili;l oin ()IlhToer I P'rlcIIOud lestified Ihat he not ernl, criticized Kini drilln fior oonc nI, the I m1ion rather than .omniny to him but also ti.:td thire , ais "li wi''11 t h ieud p1i the iperator's rate for truckdriing kli rT1li itl tsilisd to rathiel s i1n ri iicsm sn Perrenoud related toi his tz IF l : hl.e Ie nlw:l ;il I . illt thre lt ih he soulid neser w,0ork for Respin delt .uiii Theni. in repl, to a quesllon is to whether anrthing else was sid. hte stlei '"No I ehecie tha.t's all" Ihough generaull the Administra- :ie I a,,u Judge created P'err-icnoud oser Kinderman. "'n this instance." he ial cdl "1 credit Kindernlin',l erslon, largel? confirmed hs Zenner and R\il " I rim thl Iil t t..e11 i e no dolbht that Kinderman's testimons con- .crllsil I' rrticlod ' .illlnlenit .bouti hli ioing to the I nion are credited. lintle P"c ICrl, lxl hrllteif :cstlied he m;li.e 1 nIs 1'Lit h remalks But it is noit so t 1. , Ith I speit i: the , 1 iI. of Perre.iLd'I Lestmtimns, that he ailso said he -.ild in I.' \ii t\ Pi'S i he operti"t r', ra;c for iruckdrlsing Kinderm:ln never cist'tgrl..ll~ tciflied lin! tI-h conilllent ,as made it fact. he w.is never iirtll iskec. Rather, ali uAi hate here is Kmnderman's tesuimins that he ,lid rI "hel ' ic" :inthinr U as said hb Perrenioud except the uinin related lena.rk, Ihis itsiiiilv teilpripriing hI: firm "N''" comes close t: ai "i do lnot etiiithbr'' .:cl-.itin I ril thiN. I c oniclude there is no1 irreconclable .irnliht rhetccn Perltni'-l si testintolis iconerning sling the eonotmic l 5 inc Kini etirtliinlr ' testiln11 eiiCneIrlTtine the confrontation EImplrsee Ri. l's t edltedl rsitila,,'s v th '.spect to the Incldelit IS Tlnot in c!fllict with [ii,. slllusln, s!s hie saii ni rtlil lt' i.n tiat he did 1ot heal Perrtin.ud imake tiSN ieftrent e to his i: bceinc lhie it pat the O per lOr'S rite for truckliIt tie dl norlt del' P'errcn.ild nl.!de such a remark .anl there is some qllti itnl ai to uhithtr Ri1tli wa s present throtughoit the whole incident I urlhtermic. ., isndiaie.d [ iart of the dmrinistratise l.al Jidge's reason for crcditin n Klndernl l' (ii tuhtno : "Al th' it isis "liargel; c.nfiruled hb Zellcet. ' ]ilt Zltsciii/ O cr-,r cxariinaltin d i.nd cinmrars t the ma.iJorlts' assnrtliol. ill a Cnl uxt ilrc l s relaited to 'he mitter under ionsideratlnl aTrctd Ilisti Pcrliteni i I hai tiqd Kinderrian he could not afford t° pi; ip;lli r's ur;ie o Irukdrlk i\erlxe l N'hin ; pears in the recosrd here why Zenltr's ltestin :! h,.ilti De .redl It. d rinl ins;far ., It supports K:nlier;nIa's crslin oif IKht intltdenl ai id not rediteil insofar as it supports P'crenoind'l s aInde in fact Ihe \dministraiie I aw, Judge nadle no credlblhits hliidim i aloing atich lines I his. it appears ,hllt Perrcnouid's estinimons that le oldi Kintlim.lFniu In fllrc. th ll he til ld ntl pas operalor's rales fio truck ( 'in l ntised 805 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paid the difference between the $7.50 and $10 rates for the time he had worked as a truckdriver since August 14. From the foregoing the Administrative Law Judge, and thus my colleagues who adopt his decision, con- cludes that "but for Kinderman's having gone to the Union, he would not have been discharged." I be- lieve that it is a tenuous conclusion at best. To be sure, Perrenoud's heated, union-related comments made at the time of the discharge give some colora- ble support to such a result, and indeed those com- ments may very well be a kind proscribed by Section 8(a)(1) of the Act as unlawful threats. But the fact Perrenoud may have uttered such threats at the time of the discharge does not ipso facto show, as my col- leagues seem to believe, that the matter involved in those threats was necessarily the actual cause of the discharge. Rather, in situations like that before us- as in the innumerable pretext cases we decide-rea- son requires that we determine what in fact caused the discharge; and, here, we do not have to dig very deep to find that the Administrative Law Judge's re- sult is not warranted. First, there is absolutely no evidence that Respon- dent harbored any antiunion feelings whatsoever. Perrenoud himself had been a member of the Union for some 27 years. Second, in the past a number of Perrenoud's employees had filed grievances with the Union against him and none-according to Perrenoud's testimony supported by that of a union agent-had ever been discriminated against for doing so. Finally, there is nothing in Perrenoud's background to support even an inference that he fired Kinderman for union-related reasons. On the contrary, his whole background is inconsistent with such a conclusion. The undisputed evidence fully supports the result that Kinderman was in fact discharged for nondis- criminatory reasons, i.e., for insisting that he be paid operator's rates for truckdriving; for when Perrenoud gave Kinderman the truckdriving job he made it ab- solutely clear he could pay only the $7.50 rate for the job and Kinderman agreed to that wage. Then-after getting the job-Kinderman insisted on the $10 operator's rate. Perrenoud, while discharging him, again made it absolutely clear that he could not af- ford to pay the higher rate for the job. These undis- puted facts and the record as a whole support the conclusion that, despite Perrenoud's several anti- union remarks, it was Kinderman's insistence on operator's pay that caused his discharge and not the driving stands essentially uncontradicted and directly supported by testi- mony of a credible witness. (onsequently, I conclude such a statement was indeed made as related above. incidental fact that he had enlisted the Union's help in trying to force what Perrenoud considered an ov- erpayment for the job. Therefore, I would find that Kinderman was discharged for economic reason or, alternatively, that the General Counsel has failed to prove by substantial evidence that he was fired for unlawful reasons. In reaching my result here, I fully agree with my colleagues that Kinderman was engaged in a protect- ed activity in seeking the Union's aid in obtaining the $10 rate; but my point is, rather obviously, that the facts show he was not fired for seeking such aid; that is, contrary to the position taken by my colleagues, the facts show that Kinderman would have been dis- charged even if he had not gone to the Union. I do not, however, see any merit in my colleagues' statement to the effect that as Kinderman was, in seeking $10 per hour, making a claim-though per- haps an erroneouse one-under a contract, his con- duct was for such reason protected. We have here what is a clear misapplication of a valid principle. It is not contended by the parties that truckdriving was covered by the Operating Engineers agreement and indeed that Union's representative testified that such work came within the Teamsters jurisdiction and was covered by its contract.6 Consequently, Kinderman was not making a colorable claim under an applica- ble agreement in demanding operator's pay for truckdriving, and thus in making his demand he was not ipso facto engaged in a protected activity as my colleagues conclude. See Merlyn Bunney and Clarence Bunney, partners, d/b/a Bunney Bros. Construction Company, 139 NLRB 1516 (1962). But I see no point in pursuing this matter further, for it was neither al- leged, nor was the case litigated on the basis that Kinderman was discharged for asserting a colorable contractual claim. I am therefore constrained to con- clude that the issue has been gratuitously injected into this case by the majority apparently as a means--ineffective, I believe-of parrying my dis- sent. Finally, I fail to see the relevance of the majority's observation that Kinderman never refused to work for $7.50 an hour but that such refusal would have provided a basis for an economic discharge. This matter has no bearing on whether or not he could 'The economic issue that I feel is decisive here intrudes itself into my colleagues' decision but apparently without their fully appreciating its im- pact. The, in effect, order Kinderman reinstated to his former employment and with reimbursement for lost backpay; that is, presumably he is being reinstated as a truckdriver at a truckdriver's rate of pay. If that is indeed the situation and the S7.50 rate offered by Respondent was applicable to Kinderman's work, then it should be abundantly clear that Kinderman suc- ceeded in securing an unwarranted overpayment for his work, and in conse- quence the economic motive for his discharge appears all the more likely and compelling. It is difficult to conceive of his being reinstated at, and with backpay at. the $10 operator's rate when the Operating Engineers contract was not applicable to the specific work involved. 806 PERRENOUD, INC. have been discharged lawfully for other reasons; for example, for demanding $10 for a $7.50 job.7 In view of the foregoing and my conclusion stated above that the record fails to establish that Kinder- man was discharged for unlawful reasons, I would dismiss the complaint. 71 would have thought that if Kinderman had refused to work for $7 50 he in effect would have quit and thus that it would hase been unnecessars. if not impossible, to have discharged him. But it is clear that, despite ha ing accepted the truckdriving job at the applicable truckdriving rate, Kinder- man intended to continue working at a rate he unilaterally insisted on DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at Eau Claire, Wisconsin, on February 16, 1977, pursuant to charges filed on November 4, 1976, and a com- plaint issued on December 14, 1976, alleging that Respon- dent violated Section 8(a)( ) and (3) of the National Labor Relations Act, as amended. Respondent has filed a brief. Upon the entire record in the case, including my obser- vation of the witnesses, I make the following: FINDINGS OF FACT . THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is a Wisconsin corporation engaged in pro- viding services to public utilities, including the installation of underground pipe, with its office and place of business in Chippewa Falls, Wisconsin. During the past calendar year, Respondent purchased goods valued in excess of $50,000, which were shipped to it directly from points out- side the State of Wisconsin. I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. International Union of Operating Engineers, Local 139B, AFL-CIO. is a labor organization within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTIC ES A. The Facts Larry Kinderman had been employed by Respondent "'off and on" since 1960, essentially as an operator of heavy equipment, until his discharge on October i. 1976. Respondent's operators are seasonal in nature with a peak employment of about 70 from April to November or De- cember and only about 15 employees the remainder of the year. As of August 14, there was no heavy equipment work for Kinderman to perform, and he was transferred to truckdriving. According to Respondent's president. Ste- phen Perrenoud, on that date he told Kinderman he had nothing more for him to do as an operator. Kinderman asked Perrenoud whether there was something he could do, and Perrenoud said that Kinderman could drive a truck but that the scale for truckdriving would be $7.50 an hour, as opposed to the operator scale of close to $10 an hour.' On September 30, Kinderman complained to the Union that he was not being paid operator's scale.2 On October I, Union Business Representative Jack Parr came to the plant and spoke with Perrenoud, telling him that Kinderman had to be paid the proper scale. Perrenoud said he would take care of it. Right after the conversation with Parr, Perre- noud "tore up there" to where Kinderman was working, called him over, and, as Perrenoud put it, . . . told him that Jack had called, that he had filed a grievance, that why in the hell didn't he come and talk to me? That in no way could I pay operator's pay for driving a truck and I was a little more explicit in that I mentioned that I could hire trucks for less than operator's scale, than what he cost me. I didn't say less than operator's scale, but I did say less than what he cost me. To leave the truck there and come up to the office and I'd pay him just what the union told me to pay him. Perrenoud added later in his testimony that he said to Kinderman, "Why didn't you come in and talk to me in- stead of running to the union. And I might have said the goddamn union. too." He subsequently confirmed that he told Kinderman that he "would never work for Perrenoud again." According to Kinderman. Perrenoud said, "I was chick- en shit for running to the union and I didn't have guts enough to come to see him about my wages . . . that I should bring all my hours into his office . . . and he'd pay me every damn cent I had coming." When Kinderman said he did not have the hours, Perrenoud replied, "No, the goddamn union's got them." Employee Zenner testified that, when he showed up. Perrenoud called Kinderman ofer and told him. "[ilf he needed the money, he didn't have the guts to come to Mr. Perrenoud. Instead,. he turned 1 Kindermnan admitted to performing truckdrving g sork from August to (Khober but denied the gist of the conversation as testified to hs Perrenoud Ihitl e vas paid $7 50 the truckdriser rate. for the rest of the 1976 season. until lie was dichareed i nolt in dispute. I credit Perrenoud's versitin In the first place. Kinderman's deniml of the convers.ation lea.ses cLmrllcel, unexplainred the S 511 w age at which he worked after August 14 Kinder- mtsn could hardlN hase been unaware of what he was being paid and was not likell to take that amount and sas nothing for 6 weeks had he not been told thai was lilat lie ias to rccelNse Second. Kinderman denied ever hia- Mig been warned hb Perrenoud regarding the maintenance of his equipment Yel. General ('ounsel's witness. Thomas Zenner. specifically testifird to Perrenoud haxilng arlned Kinderman about falling toi grease his truck and failing to discoser Ioose hills underneath the truck Third Perrenoud's testi- mont concern-ng particitar derelictions of Kindernman for which Kinder- m;ian was "fired" and later rehired, was convincing and in marked contrast ti Klndermi llal rather clilst.ll denials I Inals. Perreno.ud was cer, frank to dmlnl that he in fact dlschargctd. rather than laid off. Knderman. in effect eleialing a proffered defensc hb rcplhing to the question "Did iu la,,off hMr Kindernirtan oi ii , ul s distharge him on October I?"' with "B, telling hil that he would ne.er work for Perrenoud aeain I would sa. that that wsi, a discharge viuldiii' sout- Kindelman testified that he spoke first ith t nion Repreentatise Phil Plusilk in June about this problem As in June he was being paid full 'peraratlols cale and was noi driiing a truck. this testilnri t is .omewhat confusig tho though t i portant to the resolution of this cae 807 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his hours into the union ... he would never work for him again in a hundred years." Employee Howard Ryan, who was a somewhat reluctant witness, also testified that Perre- noud said to Kinderman that "he wasn't man enough to come to Mr. Perrenoud, he had to turn him in to the union." In this instance, I credit Kinerman's version. large- ly confirmed by Zenner and Ryan. Perrenoud did not spe- cifically deny having said what those three attributed to him concerning that conversation and, as noted above, confirmed that he told Kinderman that he should have come to him rather than be "running to the union." Kindermnan was paid for his time, including full operator's scale for his truckdriving time after August 14, and then left. B. Discussion The facts set forth above on their face make it evident that Perrenoud discharged Kinderman for going to the Union about being paid less than scale. Perrenoud's own testimony confirms this-- he testified at one point that if Kinderman "had a complaint, two weeks after he started driving [the] truck that he didn't want to work truck driv- ing, all he had to do was come in the office and I told him, 'Why didn't you come in to talk to me instead of running to the union.' " The testimony of Zenner and Ryan, supporting that of Kinderman and comporting with Perrenoud's, makes it amply clear that, but for Kinderman's having gone to the Union, he would not have been discharged. A clear violation of Section 8(3) and (1) of the Act has thus been made out by the General Counsel. North Shore Publishing Co., 206 NLRB 42, 43 (1973). Respondent urges, however, that Kinderman, having ac- cepted the truckdriving job at his own request for some- thing to do when the heavy equipment work was no longer available, and having agreed to take truckdriver scale for doing the job, was in effect adopting a "plan of action" to "profit by his own wrong doing." Or, as Perrenoud put it while testifying: To why I would not hire him again because I thought he was very dishonest in coming into our office and me telling him that truck driver's scale was $7.50. him agreeing to drive [the] truck, waiting 2 or 3 months and then insisting that he be paid operator's scale for driving that truck. I felt like I'd always taken him as a friend and like I had been knifed right in the heart. I called him back, I went out of my way for him a hun- dred times and I felt like I had been knifed when he pulled this. Those are the two things. One was the hurt . . I the other one was the monetary thing to it. Respondent also urges that I should take into consider- ation other testimony of Perrenoud to the effect that he belongs to the Union because "I fully believe in them," and that in 25 years Perrenoud has never fired an employee for filing a grievance with the Union. I am sympathetic with Respondent's position, for it is understandable that Perrenoud regarded Kinderman as having, in his words "knifed him" by waiting 6 weeks, tak- ing the benefit of the truckdTiver's job at $7.50 an hour, and then seeking to get operator's pay' for the work done. The fact remains, however, that the Act protects an employee's right to seek a union's assistance via the griev- ance procedures of a contract, and disciplining an employ- ee for having exercised that right therefore "tends to inter- fere with, restrain, and coerce employees in violation of Section 8(a)(1) and discourages union activity in violation of Section 8(a)(3)" even "in the absence of evidence of union animus." Mrs. Baird's Bakeries, Inc., 189 NLRB 606 (1971). An employer faced with a grievance such as was filed by Kinderman here is under no obligation to do more than consider it. He can reject it for any good-faith reason he may have, but he may not discharge or otherwise discrimi- nate against the employee for having filed the grievance. I am constrained, accordingly, to reject Respondent's de- fense, appealing though it may be as a matter of Perrenoud's human reaction to the situation, and to find that Kinderman's discharge was violative of Section 8(a)(3) and (I) of the Act. CONCLUSION OF LAW By discharging an employee because he engaged in a protected concerted activity, Respondent has engaged in unfair labor practices affecting commerce within the mean- ing of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act. THE REMEDY I shall recommend that Respondent cease and desist from its unfair labor practices; that it offer reinstatement to Larry Kinderman with backpay, computed as provided in F W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NRLB 716 (1962); and that take certain affirmative action in order to effectuate the policies of the act. Upon the foregoing findings of fact, conclusion of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 3 The Respondent, Perrenoud, Inc., Chippewa Falls, Wis- consin, its officers, agents, successors. and assigns, shall: 1. Cease and desist from: (a) Discharging any employees because they have en- gaged in concerted activities for mutual aid and protection. (b) In an), like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Larry Kinderman immediate and full rein- statement to his former job or, if that job no longer exists, '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. 808 PERRENOUD. INC'. to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously en- joyed, and make him whole for any loss of earnings he may have suffered in the manner set forth in the section hereof entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in Chippewa Falls. A is- consin, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by Respon- dent's authorized representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places. in- cluding all places at all locations where notices to emplox- ees are customarily posted. Reasonable steps shall be taken 'in the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National L abor Relations Board." by Respondent to insure that said notices are not altered. defaced, or covered by any other material. (d) Notify the Regional Director for Region 18. in writ- ing, within 20 days from the date of this Order. what steps Respondent has taken to compl? herewith APPENDIX Not)l I TO ENMP.OYEFS POSTi tD) H O)R)I R OF THF NAliONAI \RO()R Ri iFrtlOs BOARD An Agency of the United States Government WF wtni Ntt) discharge or refuse to reinstate any employees because of their concerted activities for mutual aid and protection. WF i iL NOt in an' like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed under Section 7 of the Na- tional L.abor Relations Act. as amended. Wi Wii.li offer reemployment to Larry Kinderman and . Will[t paty him for any losses he suffered as a result of our having discharged him, plus interest. Pt RRI Not1). IN( 809