Snap-On Tools Corp.

238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Snap-On Tools Corporation and Richard M. Spond. Case 14-CA-7069 November 13, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On April 10, 1973, Administrative Law Judge Samuel Ross issued the attached Decision in this proceeding. 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 National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the-exceptions and brief and finds merit in certain of Respondent's excep- tions. Accordingly, we have decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge only to the extent consistent herewith. Richard M. Spond, the Charging Party, started to work for Respondent on July 31, 1972. He was assigned to work as a cold trimmer in the forge department on the second shift under the immediate supervision of Foreman Lloyd A. Morris, and the overall supervision of the second shift general foreman, George Richard Hinderliter. Spond's hour- ly rate of pay as a newly hired cold trimmer was $2.19 per hour. However, since the job of cold trimmer in the forge- department was one that the Respondent compensates under an incentive system, Spond's earnings when he worked at that job were not limited to his hourly rate, and generally were based on the extent to which he could exceed the established job standard. The occasional absence of an employee in the Respondent's hammer room creates a temporary vacancy which is filled by the transfer of one of the cold trimmers in the forge department.' The jobs in the hammer roam carry a rate of pay substantially i In respect to such temporary transfers, sec. 4.6 of the Respondent's contract with the Union, provides, inter alia, as follows. When the Company deems it necessary or advisable to transfer any employee for production requirements , the employee cannot refuse such a transfer. Preferences of senior employees will be considered whenever the ability and competence of the employees concerned and plant production requirements permit it to be considered. When it is necessary to temporarily transfer an employee from a department for production requirements, the least senior employee in that department who has the necessary skills to perform the job will be transferred higher than that of a cold trimmer. According to Spond's credited testimony, during his 6 weeks of employment by the Respondent, the cold trimmer in the forge department with the most seniority was "always" assigned to fill such a vacancy when one occurred. During his employment by Respondent, Spond was on one occasion assigned to work in the hammer room to fill a temporary vacancy. Spond was hired on July 31, 1972, and discharged on September 11, 1972. According to the terms of the collective-bargaining agreement, he was still a probationary employee at the time of the discharge and thus had no seniority for any purposes, including transfer.2 On September 11, a temporary vacancy occurred on the second shift on the 2,000-pound hot trim press in the hammer room. This was a job for which the base rate was 38 cents an hour more than Spond's rate of $2.19. Foreman Morris assigned the job to Bill Dunlap, another cold trimmer. At about 8:30 p.m., Spond had a conversation with Foreman Morris in the presence of Night General Foreman Hinderliter regarding the assignment of Dunlap and not Spond to this job vacancy. According to Spond's credited testimony, he asked Morris, "How come Bill was heating the 2,000 pound [hot trim] hammer instead of me, because I had more seniority." Morris answered, "Nobody has seniority until they are in the Union." Spond said to Morris, "I have been here longer than Bill," and he asked Morris, "Don't you think I could handle the job?" Morris replied, "Yes, I think you can handle the job." Spond then inquired, "Well, do you think it was right?" And Morris responded, "I think it was right. I can put anybody in the hammer room I want to."' At this point, Hinderliter interposed and said to Spond, "Come with me, I am going to fill out your papers. You have no right to -question your supervisors." Spond then accompanied Hinderliter to the latter's office. Spond insisted on his right to the transfer llecause of his belief that it was shop custom for the most senior cold trimmer to be transferred to the hammer room. He made no reference to any purported right deriving from the collective-bargaining agreement.3 2 Sec. 4.2 of the contract reads in pertinent part- Employees shall be regarded as temporary employees during the first thirty (30) worked days of their employment. During such a thirty (30) day period, they shall have no seniority status . . this probationary period may be extended from month to month by mutual written agreement between the Company and the Union. Under cross-examination, Spond testified- Q• Did you ever make reference to any provisions in the collective bargaining agreement which gave you the right to this particular temporary assignment in your conversation with Mr. Morris? A: Always before the oldest cold trimmer had always gone into the hammer room 207 NLRB No. 31 SNAP-ON TOOLS CORPORATION In fact, Spond testified he never even read the contract. At Hinderliter's office, Spond told him that he did not believe he had done "anything to get fired for" and he asked Hinderliter to reconsider his decision. Hinderliter replied that Spond's discharge was based "not entirely" on his dispute with Morris. He then told Spond that, on a prior occasion, he had observed Spond performing slowly during a 1-night transfer to the machine shop and, on another occasion, when Foreman Morris told Spond to transfer for the rest of the night to the machine shop, Spond had pleaded that he had a headache and was excused by Morris to go home. Hinderliter offered Spond an opportuni- ty to quit and thereby keep his record free from the taint of a discharge, but Spond rejected the offer. Spond consulted with the union steward twice. Both occasions were prior to his leaving the plant but subsequent to his termination. The steward had informed Spond that there was nothing he could do because he was not in the Union. After consulting with the union steward, Spond asked Hinderliter to extend his period of probation for another 30 days, but Hinderliter refused. Finally, Hinderliter gave Spond a termination slip which stated the reason for his discharge as "not suitable for production" and Spond left. We cannot conclude, as the Administrative Law Judge did, that Spond's complaint was protected concerted activity under the Act and that his discharge was a violation of Section 8(a)(1) of the Act. Spond's complaint to his supervisor was based solely on his own personal observation during his 6 weeks of employment and not upon any right under the contract, which admittedly he had never read. Indeed, the contract specifically provided that probationary employees have no seniority status and, thus, Spond's complaint concerned a seniority right which did not exist under the contract. He was, therefore, not attempting to implement or enforce any terms of the contract, and his complaint was, in our view, purely personal and not a concerted activity.4 Accordingly, we conclude that his dis- charge was not violative of Section 8(a)(1) of the Act and that the complaint should be dismissed. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. Q: You are stating that that was your understanding of that past practice in your department? A: It was a practice all the time I was there. 239 Q: My original question was, did you in your conversation with Mr. Morris make any reference to the collective bargaining agreement that gave you the right to that particular job assignment. the heat job? A: No. + We find the facts in this case to be clearly distinguishable from the Board's decision in C & I Air Conditioning, Inc., McKeon Construction, 193 NLRB 911. In C & I the employee had voiced a series of complaints about safety measures of concern to all the construction employees of the company and also within the scope of the contract . One complaint involved the lack of a first-aid kit on the employee's truck, but other complaints concerned the trucks being used on the project not having proper lights, horns, and brakes. Another complaint involved an insecure stairway on the construction project . It should be noted that the employee discussed this latter complaint with the union steward prior to bringing it to the employer's attention. In C & I. the majority of the Board looked at the nature of the complaints and their significance and relevance under the contract to the interests of all employees and concluded that the discharge of the complaining employee would discourage others from implementing the protection of the contract. Chairman Miller dissented from the finding of a violation in the C& I case based on his view that the actions of the employee were not concerted activities. He adheres to that view and finds the facts in the instant case to show likewise, for reasons stated above , that Spond's complaint was merely a personal gripe. DECISION STATEMENT OF THE CASE SAMUEL Ross, Administrative Law Judge: This case was tried in Mt. Carmel, Illinois, on February 21, 1973, based on a charge filed by Richard M. Spond on September 25, 1972, and an amended complaint which issued on January 30, 1973 . The complaint alleged, inter alia, that the Company had violated Section 8(a)(1) and (3) of the Act by firing Spond on September 11, 1972, because he engaged in union or protected concerted activities.' Snap- On Tools Corporation (the Respondent) filed an answer to the amended complaint which denies its substantive allegations and the commission of unfair labor practices. 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 Respon- dent, I make the following: FINDINGS OF FACT 1. COMMERCE The Respondent is a Delaware corporation whose principal office and place of business is located at 8028 28th Avenue, Kenosha, Wisconsin. The Respondent operates a plant (the only facility involved in this case) at 1200 West Seventh Street, Mt. Carmel, Illinois, where it manufactures, sells, and distributes hand tools and related products. During the year ending December 31, 1972, a representative period, the Respondent sold and shipped I The amended complaint also was based on a charge filed by District No. 167, International Association of Machinists and Aerospace Workers. AFL-CIO (Case 14-CA-7175) which alleged that the Respondent Company had violated Sec. 8(a)(5) and (I) of the Act by unilaterally, without notice to or bargaining with that union, changing the companies which covered its Mt. Carmel employees for life, dismemberment, accidental death , health, and disability insurance. However, at the opening of the hearing, an informal settlement of the Union's charge was effected , and I granted the parties' joint motion to sever the two cases and to continue the Union's case indefinitely pending compliance by the Company with the terms of the settlement agreement. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD products valued in excess of $50,000 from its plant in Illinois to places outside the said state. The Respondent admits and I find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It. THE LABOR ORGANIZATION INVOLVED It is undisputed and I find that International Association of Machinists and Aerospace Workers, Lodge No. 1856 (herein called the Union) is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Union has been the certified representative of the Respondent's employees at its Mt. Carmel plant since 1944.2 The most recent collective-bargaining contract between the Union and the Company provides, inter alia, that Employees shall be regarded as temporary employees during the first thirty (30) worked days of their employment. During such a thirty (30) day period, they shall have no seniority status .... this probationary period may be extended from month to month by mutual written agreement between the Company and the Union. Charging Party Richard M. Spond was hired by the Respondent and started to work for it at the Mt. Carmel, Illinois, plant on July 31, 1972.3 He was assigned to work as a cold trimmer in the forge department on the second shift4 under the immediate supervision of Foreman Lloyd A. Morris, and the overall supervision of second shift General Foreman George Richard Hinderliter. The job of cold trimmer essentially is that of operating a punch press which is fitted (set up) with appropriate dies and punches that are specifically designed to remove excess metal from various types of tool forgings. The latter emanate from the Respondent's hammer room which is part of the forge department. Spond's hourly rate of pay as a newly hired cold trimmer was $2.19 per hour. However, inasmuch as the job of cold trimmer in the forge department was one that the Respondent compensates under an incentive system, Spond's earnings when he worked at that job were not limited to his hourly rate, and generally were based on the extent to which he could exceed the established job standard.5 In the 6-week period during which Spond worked as a cold trimmer before he was fired on September 11, as described infra, his production rate increased regularly each week from 106 percent of standard during his first week of employment to 135 percent of standard in his last full week .6 2 Case 14-R-1047. 3 All dates hereafter refer to 1972 unless otherwise noted 4 Spond's hours of employment on the second shift were from 3:30 p.m. to midnight. 5 In this regard, the Respondent's collective-bargaining agreement with the Union provided, inter alai, in sec. 5S, Joint Exh. 1, p. 12, as follows. There is another incentive system called the Mt. Carmel Forge Shop Incentive Plan . . of which the principles and policies are set forth in a manual dated September 1, 1960.... The incentives system contemplates that the average operator working on incentive, putting The occasional absence of an employee in the Respon- dent's hammer room creates a temporary vacancy which is filled by the transfer of one of the cold trimmers in the forge department. The jobs in the hammer room carry a rate of pay substantially higher than that of cold trimmer. According to Spond's credited testimony, during his 6 weeks of employment by the Respondent, the cold trimmer in the forge department with the most seniority was "always" assigned to fill such a vacancy when one occurred.? In respect to such temporary transfers, the Respondent's contract with the Union provides, inter aka, as follows: 8 4. When the Company deems it necessary or advisa- ble to transfer any employee for production require- ments, the employee cannot refuse such a transfer. Preferences of senior employees will be considered whenever the ability and competence of the employees concerned and plant production requirements permit it to be considered. When it is necessary to temporarily transfer an employee from a department for production require- ments, the least senior employee in that department who has the necessary skills to perform the job will be transferred. During his employment by Respondent, Spond was on one occasion assigned to work in the hammer room to fill a temporary vacancy. On September 11, a temporary vacancy occurred on the second shift on the 2,000-pound hot trim press in the hammer room. This was a job for which the base rate was 38 cents an hour more than Spond's rate of $2.19 .9 Foreman Morris assigned the job to Bill Dunlap, another cold trimmer. At about 8:30 p.m., Spond had a conversa- tion with Foreman Morris in the presence of Night General Foreman Hinderliter regarding the assignment of Dunlap and not Spond to this job vacancy. According to Spond, whose testimony I credit both generally and in this regard, he asked Morris, "how come Bill was heating the 2,000 pound [hot trim] hammer instead of me, because I had more seniority." Morris answered, "Nobody has seniority until they are in the Union." Spond said to Morris, "1 have been here longer than Bill," and he asked Morris, "Don't you think I could handle the job?" Morris replied, "Yes, I think you can handle the job." Spond then inquired, "Well, do you think it was right?" and Morris responded, "I think it was right. I can put anybody in the hammer room I want to." At this point, Hinderliter interposed and said to Spond, "Come with me, I am going forth normal effort and possessing average required skill, will produce approximately 125% of the established job standards and will thus earn approximately 125% of his base hourly wage rate. 6 Spond's overall production rate for his 6 weeks of employment was 122 percent of standard. See G C. Exh. 4. 7 Spond's foreman, Lloyd Morris, conceded that whenever possible, it was his practice to transfer "the most senior man" to fill such vacancies, "when the man can do the job.- 8 Joint Exh. 1, sec. 4.6, subpar. 4, p 6. 9 See Joint Exh 1, p. 10. SNAP-ON TOOLS CORPORATION to fill out your papers." Spond asked, "What papers?" Hinderliter replied, "Your release papers. You have no right to question your supervisors." Spond then accompa- nied Hinderliter to the latter's office.10 At Hinderliter's office, Spond told him that he did not believe he had done "anything to get fired for" and he asked Hinderliter to reconsider his decision. Hinderliter replied that Spond's discharge was based "not entirely" on his dispute with Morris. He then told Spond that on a prior occasion, he had observed Spond performing slowly during a one-night transfer to the machine shop, and on another occasion, when Foreman Morris told Spond to transfer for the rest of the night to the machine shop, Spond had pleaded that he had a headache and was "excused" by Morris "to go home." Hinderliter offered Spond an opportunity to quit and thereby keep his record free from the taint of the discharge, but Spond rejected the offer. After consulting with the union steward, Spond asked Hinderliter to extend his period of probation for another 30 days, but Hinderliter refused. Finally, Hinderliter gave Spond a termination slip which stated the reason for his discharge as "not suitable for production," 11 and Spond went home. As noted above, Spond was summarily discharged by General Foreman Hinderliter about the middle of the second shift on September 11, immediately after Spond protested his foreman's failure to follow seniority in filling the temporary job vacancy in the hammer room. The timing and the precipitate nature of this termination clearly disclose that it was Spond's protest which motivated his discharge, and I so find. The Pretextual Reasons Asserted by Respondent for Spond's Termination The Respondent does not dispute that Spond's discharge was motivated, inter alia, by his discussion with Foreman Morris regarding the latter's assignment of an employee with lesser seniority to the higher paid temporary job in the hammer room. It contends, however that General Foreman Hinderliter's decision to fire Spond also was motivated by additional considerations. In this regard, when Hinderliter 10 Morris' version of this conversation did not materially differ from that of Spond. However, according to Hinderliter, Morris also explained to Spond the reason why Dunlap rather than Spond had been assigned to the temporary job. In this regard, Hinderliter testified that Morris told Spond that he assigned Dunlap to fill the vacancy because he had previously worked for the Respondent and was more "skilled ... to do the job" than Spond. Hinderliter further testified that Spond nevertheless repeated three times that he had more seniority than Dunlap, and that Spond had "stared" and "glared" at Morris . I do not credit Hinderliter in these respects for the following reasons : Spond, whom I regard as a truthful and generally reliable witness, denied that Morris told him that Dunlap "had worked on the job before," and he also denied that he "stared" at Morris. Morris' testimony regarding this conversation in effect corroborated Spond's denials, for it contained no reference to any explanation to Spond for Dunlap 's selection for the job, and none to any "staring" or "glaring" at him by Spond. For the foregoing reasons, and because , as explicated infra, I regard Hinderliter's testimony as unworthy of credence in many respects, I credit his version of the foregoing conversation only to the extent that it accords with that of Spond credited above. 11 Resp. Exh. 1. 12 See fn. 6, supra. 13 Contrary to Spond, Foreman Morris testified that about 3 weeks before Spond's termination, he told Spond "we had to have more production and less die breakage ." I place no credence in this testimony of 241 was asked to state "the reasons" for which he "discharge[d ] Mr. Spond on September 11, 1972," he answered, "I'd say insubordination, loafing in the machine shop, and his attitude when he broke that one die, he didn't give a damn." Although not contained in Hinderliter's above response, the Respondent also contends that it terminated Spond's employment because his die-breakage rate was high, and his rate of production was low. As explicated infra, I place no credence in any of the additional reasons asserted for Spond's abrupt termination. As found above, Spond's discharge occurred in the middle of his shift on September 11 immediately after his discussion with Foreman Morris about the latter's assign- ment of a less senior employee to a desirable job vacancy. Although at that time, Spond was but a day or so away from the end of his probation period, there is no evidence that Hinderliter was then in the process of assessing Spond's record for the purpose of making a determination as to whether or not he would retain Spond at the end of his probation. In this regard, it is significant that Hinderliter admittedly did not examine Spond's pro- ; duction record prior to discharging him. Furthermore, Hinderliter said nothing to Spond about poor production or excessive die breakage when he fired Spond. Moreover, according to Spond's production record, his output had improved each week, his average production rate for his 6 weeks of employment was 122 percent of his job standard, and for the last 2 weeks before his discharge, Spond's production rate was 135-1/2 percent of his job standard.12 Finally, I note that according to Spond's credited testimo- ny, he was never criticized by his foreman either for poor work performance or excessive die breakage.13 In view of all the foregoing, I regard the Respondent's contention that Spond's peremptory mid-shift discharge was motivated by a poor production record and a high die-breakage rate as unworthy of credence.'4 As noted above, another of the reasons for which Hinderliter assertedly fired Spond was "loafing in the machine shop." In this regard, Hinderliter testified that about August 20, he observed on three occasions that Spond was filing wrenches in the machine shop very Morris in the light of Spond's documented ever-increasing rate of production. The Respondent's brief ( p. 4) suggests that Spond's denial of criticism of his work is inconsistent with his following testimony on cross- examination: Q. Did you ever get any complaints from Mr . Morris, your supervisor, saying you were having problems with the production? A. Yes, sir. My view of this isolated question and answer quoted out of context does not accord with that of the Respondent. As previously noted, I regard Spond as a truthful witness whose testimony was generally reliable . Immediately after the out of context quote above. Spond was again asked, and he denied that he received any complaint that he wasn't producing enough or that he would have to improve. I therefore regard the above out of context quotation as indicative only of a misunderstanding of the question by Spond. 14 1 note in this regard that according to a record maintained by Foreman Morris, Spond's total breakage of punches and dies was eight punches and one die, that seven of these breakages occurred in the first 2 weeks of his employment, and that the last one occurred on August 29, about 2 weeks before his discharge. I further note that the Respondent still employs one Richard Dean Hale. Clock #325, who broke seven punches and dies in June and July, including three on one day, July 31. See Resp. Exh. 5 and 6. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD slowly, and that at the end of the shift, Hinderliter commented to the machine shop foreman, and the latter agreed, that Spond had not done much work. I place no credence in Hmderliter's testimony in this regard. Hinderli- ter admitted that despite his observation, he did not speak to Spond regarding his allegedly slow performance. Indeed Spond was never told prior to his discharge on September 11 that his work on August 20 in the machine shop was other than satisfactory. Hinderliter was asked why he did not prod Spond to greater production when he allegedly observed him working slowly on August 20, but he could give no plausible explanation.15 The machine shop fore- man was not called, and the Respondent produced no records, to corroborate Hinderliter's testimony regarding Spond's allegedly slow production rate in the machine shop.16 Spond credibly testified that on the night in question, he "figured that he was doing a decent job," "an average night's work," and that he was never told anything to the contrary prior to his discharge. In the light of all the foregoing, I place no credence either in Hinderliter's unsubstantiated testimony regarding Spond's allegedly slow production in the machine shop, or in the Respon- dent's contention that Spond's sudden mid-shift discharge 3 weeks later was motivated in part thereby. As previously noted, still another reason asserted by Hinderliter for his decision to terminate Spond's employ- ment was the latter's alleged indifference to his breakage of dies. In this regard Hinderliter testified that on about September 1, Spond said to Foreman Morris in the presence of Hinderliter, "Well, I've got another one," referring to a "broken forge die." Hinderliter further testified that Spond's "attitude" when he made that statement to Morris indicated that Spond "didn't give a damn" about breaking it. According to Hinderliter, he asked Morris whether Spond broke "a lot of forge dies," and Morris replied, "yes." I place no credence in Hinderliter's testimony regarding Spond's alleged indifference to the breakage of a die. I base this conclusion not only on my lack of regard for the reliability of Hinderliter's testimony, but also on the following considerations: Spond quite obviously was concerned about his die breakage for according to his credited testimony he asked, one of the two second-shift die repairmen how his record compared with that of other employees. In the light of that concern, he would not likely have exhibited indifference when he reported to Foreman Morris, as he concededly was required to do, that he had broken another punch. On cross-examination, Hinderliter was repeatedly asked but was unable to explain what there was about Spond's statement which indicated that "he didn't give a damn about the die being broken." Signifi- cantly, Spond was never admonished for his alleged indifference to the asserted die breakage. Moreover, when Hinderliter fired Spond about 2 weeks later, he said nothing to Spond which might indicate that his decision was based either on excessive breakage of dies and punches, or on Spond's alleged indifference thereto. Based on the foregoing, as well as demeanor, I place no credence in Hinderliter's testimony that Spond was either indifferent to die breakage, or that he was discharged, inter alia, because of such indifference. This leaves for consideration the Respondent's conten- tion that Spond's termination was motivated by his alleged "insubordination" on September 11 when he protested Foreman Morris' assignment of another employee to a desirable job vacancy without regard to seniority. As previously noted, Hinderliter's testimony regarding this incident was that Spond repeated his claim of greater seniority to Morris three times, and that he "stared and glared" at Morris while he made this protest. However, Hinderliter's testimony that Spond "stared and glared" at Foreman Morris was not corroborated by the latter, and I found to the contrary, based on Spond's credited testimo- ny, that he did not "stare or glare" at Morris.17 Spond credibly testified, without contradiction , that his conversa- tion with Morris was conducted in a normal conversational tone of voice, and that he did not use any foul language. It is, moreover, quite apparent from the record that the only reason that Hinderliter decided that Spond was an insubordinate or "unsatisfactory" employee on September 11, was that Spond had the temerity to protest his supervisor's assignment of Dunlap to the hammer room out, of seniority. Thus, Hinderliter testified as follows: JUDGE Ross: When did you decide that Mr. Spond was an unsatisfactory employee? THE WITNESS: On the 11th ' [of September]. JUDGE Ross: What was [it] that he did on the 11th that made you decide he was an unsatisfactory employee? THE WITNESS: When he was telling his supervisor he wasn't doing things right. In the light of the foregoing, as well as my credibility findings, I find that no reasonable basis existed to regard Spond's conduct as insubordinate, and that the assertion of this ground for his discharge also is unworthy of credence. Contentions and Concluding Findings As found above, Spond was fired by the Respondent because he complained to his foreman about the latter's failure to follow seniority in filling a temporary job vacancy in the hammer room. The General Counsel contends that Spond's complaint was an attempt to enforce his understanding of the collective-bargaining contract, that it thus constituted protected, concerted activity on his part, and that therefore his discharge for engaging in that activity violated Section 8(a)(l) of the Act. The Respon- dent, on the other hand, contends that Spond's conduct was not a concerted activity protected by the Act because he was attempting only to get an assignment for himself, he made no reference to the collective-bargaining agreement in protesting his nonassignment to the vacancy, and indeed, "had never even read the collective bargaining agreement.,, 15 Hinderliter's explanation was that "any probationary employee will to Spond on the night in question. work if you ride him." Inasmuch as the admitted purpose of hiring a 16 International Union, UA W v. NLRB., 459 F 2d 1329 (C A.D C, probationary employee is to get him "to progress" and "become a 1972), 2 J. Wigmore, Evidence, Sec. 285 (3d ed. 1940). satisfactory employee" because his services are needed, I regard Hinderli- 17 See In. 10, supra. ter's response as an evasion , and not an explanation of why he didn't speak SNAP-ON TOOLS CORPORATION 243 It is well established that an employee engages in a protected concerted activity when he complains about violations by his employer of the terms of a collective- bargaining contract, and that it is a violation of the Act for an employer to penalize an employee for making such complaints or for asserting rights under the contract.18 Such activity, the Board has held, is merely the implemen- tation and enforcement of the terms of the collective- bargaining agreement and is therefore "but an extension of the concerted activity giving rise to that agreement" which Section 7 of the Act guarantees.19 The Board has held that the protected right of an employee to press such a complaint does not depend on the merit of his grievance, and that the fact that he may have acted alone is not dispositive of the question of whether the conduct is protected activity within the meaning of Section 720 The Board's rationale on this issue is that complaints within the framework of the union contract affect all employees, and that therefore, the pressing of such a complaint is a concerted protected activity. Neither the failure of the grievant to refer to the contract when pressing his complaint, nor his lack of knowledge of the contract, withdraws the Act's protection from the assertion of a right which is within the framework of the contract 21 The same is true if the employee is in error regarding his interpreta- tion of his rights under the contract.22 Viewed in the light of the foregoing principles and Board precedents, I regard Spond's complaint about the assign- ment of Dunlap to the hammer room out of seniority as a protected concerted activity under the Act. The collective- bargaining agreement between the Respondent and the Union contains a provision which prescribes the manner of applying seniority in connection with temporary transfers of employees.23 Prior to September 11, during Spond's 6 weeks of employment by Respondent, the uniform practice had been to assign the most senior cold trimmer to the hammer room vacancy. Thus, although S^ ond's complaint about Morris' failure to follow seniority in making this assignment undoubtedly was motivated by his self-interest in getting the job, his grievance clearly was about a subject matter (seniority) within the framework of the contract, and thus was of importance to all employees subject to the contract.24 His protest thus was a concerted activity protected by the Act.25 The fact that under the same contract, probationary employees have no seniority, and that Spond's complaint thus may have lacked merit, is irrelevant 26 Likewise, neither Spond's lack of knowledge of the contract's terms, nor his failure to refer to the contract while making his protest, withdrew the Act's protection from his protest. Accordingly, I conclude that by terminating Spond's employment because he engaged in a concerted activity protected by Section 7 of the Act, the Respondent engaged 18 Merlyn Bunney and Clarence Bunney, partners, d/b/a Bunney Bros. Construction Company, 139 NLRB 1516; New York Trap Rock Corporation, Nytralete Aggregate Division, 148 NLRB 374; Interboro Contractors, Inc., 157 NLRB 1295, enfd. 388 F.2d 495 (C.A. 2, 1967); Procon, Incorporated 161 NLRB 1304. 18 Bunney Bros., supra at 1519. 20 Interboro Contractors, Inc., supra at 1298, In. 7. 21 C & I Air Conditioning, Inc., 193 NLRB 911. 22 Interboro Contractors, Inc., supra; Anaconda Wire and Cable Co., 173 NLRB 961, 964; Northern Metal Company, 175 NLRB 896, 899. in unfair labor practices within the meaning of Section 8(a)(1) thereof.27 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent terminated the employment of Richard M. Spond and thereafter failed and refused to reemploy him because he engaged in concerted activities protected by the Act, I will recommend that the Respondent be ordered to offer him immediate reinstatement to his former position or, if it no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by the payment to him of a sum of money equal to the amount he normally would have earned from the date of his termination to the date of reinstatement, less his net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board.28 I will also recommend that the Respondent preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and determine the amounts of backpay due under the terms of this recommended remedy. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Snap-On Tools Corporation, is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists and Aero- space Workers, Lodge No. 1856, is a labor organization within the meaning of Section 2(5) of the Act. 23 Joint Exh. 1, sec. 4 .6, subpar. 4. p. 6. 24 C & I A ir Conditioning, Inc., supra. 25 Interboro Contractors, Inc., supra. 26 Id. 27 In view of this conclusion , I deem it unnecessary to determine whether Spond's termination also violated Sec. 8(a)(3) of the Act. 28 F. W. Woolworth Company, 90 NLRB 289; backpay shall include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By terminating the employment of Richard M. 4. The aforesaid unfair labor practices are unfair labor Spond because he engaged in concerted activities for practices affecting commerce within the meaning of mutual aid or protection guaranteed to employees by the Section 2(6) and (7) of the Act. Act, the Respondent has engaged in and is engaging in (Recommended Order omitted from publication.] unfair labor practices within the meaning of Section 8(a)(1) of the Act.