Cray-Burke Co.

708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cray-Burke Company and Vincent J. Callahan. Case 1-CA-9039 January 25, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On September 4, 1973, Administrative Law Judge Herzel H. E. Plaine issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in answer to Respondent's exceptions. 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 briefs and has decided to affirm 'the rulings, findings,' and conclusions2 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Cray-Burke Compa- ny, Springfield, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. CHAIRMAN MILLER, dissenting: Contrary to my colleagues, I do not find that the Administrative Law Judge's Decision adequately resolves all of the issues raised by the testimony in this proceeding. In reaching his conclusion that employee Callahan was discharged for engaging in protected activity, the Administrative Law Judge relied on a composite of the testimony of various 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. Respondent has also excepted to the Administrative Law Judge 's finding that shipper Joseph Rego is a supervisor . However, in light of the Administrative Law Judge's finding, with which we agree, that Respon- dent's president, Spallino, discharged Callahan by telling him to leave the premises, we conclude that a determination of Rego 's supervisory status need not be made to decide the merits of this case. 2 Unlike our dissenting colleague, we see no need to remand this case. As we understand the Administrative Law Judge's finding, it must be based either on his resolution of credibility against the testimony of Respondent's witnesses that employee Callahan said he was going home , or on his view witnesses concerning the conversation preceding Callahan's discharge. However, this version of the conversation does not constitute a resolution of two crucial credibility issues raised by Respondent's and Callahan's differing versions as to what occurred. The record shows that Spallino, Rego, and Lough- man all testified that Callahan, after being told by Rego that he was to"spend the day working in the warehouse, announced that "as soon as they finished loading the truck he was going home." While Callahan denied making this statement, Spallino specifically testified that it was after Callahan made this comment that he told Callahan that "in view of his attitude he could leave right away." The Administrative Law Judge noted Spallino's testimony concerning Callahan's threat to leave and Callahan's denial that he made such a statement, but he did not mention that Rego and Loughman substantiated Spallino's testimony and did not make any credibility resolutions on the issue. I do not believe that in the absence of such credibility evaluations a finding that Callahan was discharged for asserting a grievance rather than for insubordina- tion is warranted. The Administrative Law Judge also found, again without making specific credibility resolutions, that Callahan told Spallino he "wanted to know why he was in the warehouse and Flynn was going out on the truck where he would be getting more work time than Callahan." On the basis of this finding he concluded that Callahan was discharged for present- ing a grievance he reasonably believed he had under the contract. The record, however, is unclear as to whether Callahan ever expressly referred to his concern that Flynn might receive more hours when voicing his complaint. Callahan's own testimony on this point is vague and Spallino testified that he had "no idea" why Callahan had refused his assignment. Since what Callahan actually said may well be determinative of whether or not he was engaging in protected concerted activities, I believe the Adminis- trative Law Judge erred in • reaching his above conclusion of what Callahan said in this regard that even if Callahan made that statement it was not the real reason for Spallino's sending him home and discharging him. If this were not so, the Administrative Law Judge could not have concluded, as he did, that "both the conduct and explanation of President Spallino make it clear that employee Callahan had been disciplined ... for presenting or protesting directly to management a grievance he believed Se had under the collective bargaining contract." Similarly , with respect to tl: reason why employee Callahan questioned his work assignment, the Administrative Law Judge found that President Spallino knew what the employee was concerned about, and the preponderance of the evidence warrants this finding and supports this conclusion. The failure of the Administrative Law Judge to refer to other testimony is of no consequence , as it is well settled that the Administrative Law Judge is not compelled to recite all evidence in the record. Cf. United States v. Pierce Auto Lines, 327 U.S. 515. 529; Trumbull Asphalt Co. of Delaware v. N.LRB., 314 F.2d 382 (C.A. 7, 1963), cert. denied 374 U.S. 808, or to detail all conflicts of testimony, Bishop and Malco, Inc., d/bla Walker's, 159 NLRB 1159, 1161. 208 NLRB No. 102 CRAY-BURKE COMPANY 709 without. discussing the evidence presented on, the issue and making appropriate specific credibility evaluations.3 In view of the Administrative Law Judge's failure to discuss or make credibility resolutions with respect to the conflicting versions of what was said on these two crucial issues, I would remand the case to him (1) for specific findings as to whether Callahan stated that he was going to leave after the truck was loaded and Spallino then told him that in view of his attitude he could.go home immediately; (2) if Respondent's version is credited, for a reevaluation of the evidence as to whether Callahan was discharged for insubordi- nation or for asserting a complaint about a work assignment; and (3) if it is found that Callahan was discharged.for complaining about his assignment, for a finding as to whether he specifically referred to his concern that Flynn might receive more work. Since I would remand the case for these threshold credibility resolutions, I find it unnecessary at this time to reach the issue of whether, assuming Callahan did mention his concern that Flynn might receive more work time, such a statement was concerted activity .protected under Sec. 8(ax1) of the Act. , . off and voluntarily quit his job, or alternatively was justifiably discharged for refusing to carry out his job assignment in the warehouse, and was not engaged in concerted activity at the time. The case was, tried in Springfield, Massachusetts; .on July 11, 1973. General ; Counsel and Respondent have filed briefs. Upon the entire, record in the case, including my observation of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is a Massachusetts corporation, with its principal place of business and warehouse in Springfield, Massachusetts, engaged in the wholesale, sale, and distrib- ution of liquor, wine, beer, and related products. Annually, Respondent receives products valued in excess of $50,000 directly from points located outside Massachu- setts. Respondent is engaged, as it admitted, in commerce within the meaning of Section 2(6) and (7) of the Act; and the Union is a labor organization within the meaning of Section 2(5) of the Act. DECISION HERZEL H. E. PLAINE, Administrative Law Judge: The question presented is whether Respondent discharged and refused to reinstate employee Callahan, the Charging Party, in violation of Section 8(axl)of the National Labor Relations Act (the Act), because he engaged in protected concerted activity under Section 7 of the Act by voicing or presenting directly to the Respondent his claim of seniority rights under the 'collective-bargaining contract governing the employment. The complaint was issued June 6, 1973, on a charge filed April 25, 1973. Under the applicable collective -bargaining contract between General Teamsters Local 404 (the Union) and Respondent, senior employees were entitled to preference over juniors to available work within a 45-hour workweek. Employee Callahan and fellow helpers on Respondent's seniority list were given assignments on trucks or in the warehouse, usually on a daily basis. On December 28, 1972, employee Callahan protested that he was being denied his seniority preference and the possibility of more hours of work when the employer put a junior helper on a truck run and himself in the warehouse. Callahan claimed he was sent home because of his protest 'and was later informed he was discharged. The Respondent claimed that employee Callahan walked 1 Shipper Rego, as well as President Spallino, was a supervisor within the meaning of the Act. From the testimony, it appeared that be, was in charge of the receiving and shipping operation, that included the movement of the trucks and management of the warehouse, set starting times, set up the loads, and decided which drivers and helpers , handled which loads and worked in the warehouse. In the case at bar, shipper Rego designated employee Flynn, rather than employee Callahan , to be the truck helper in the incident discussed infra. Though Rego consulted with President Spallino, and had no hiring or firing authority, the limitation did not detract from the commitment to him by the employer of authority to responsibly 11. THE UNFAIR LABOR PRACTICES A. Respondent's Business, Employees, and Union Contract Respondent is a wholesale distributor of liquor, wines, and beer in and about Springfield, Massachusetts. Respon- dent employs about 25 persons, according to Charles Spallino, who is the company president and general manager, and an admitted supervisor within the meaning of the Act. Of, the total employees the majority are salesmen and clerical employees, not covered by the Union's contract (G.C. Exh. 2); and there were, in December 1972, the time of concern in this case, nine employees who were covered by the contract. The covered employees were those involved in the receiving, shipping, and delivery of merchandise, working in Respondent's warehouse or on Respondent's delivery trucks. They were Joseph Rego, the shipper, in charge of receiving,` dispatching, and assigning the work of the other men; assistant shipper LaPorte, who under the contract classification terminology (G.C. Exh. 2, article XVIII), was a-fork' truck 'operator and' warehouseman ; four truckdri- vers; and three helpers, who worked on the trucks and in the warehouse as assigned from day to day.' All were paid on an hourly scale. According to President Spallino, the shipper and direct other employees in the interest of the employer, using his independent judgment in the exercise of this authority. Section 2(11) of the Act defines the criteria for supervisory status (of which the foregoing are two) in the disjunctive, Jas. H. Matthews and Co. v. N.LR.9., 354 F.2d 432,434 (C.A. 8, 1965), cert. denied 384 U.S. 1002, a can with useful parallels to the situation here.. One of these is the unlikelihood that President Spallino, as general manager of .the whole business, including sales and purchasing and the supervision of 16 or more sales and clerical personnel, could provide detailed supervision of the 9 regular employees plus temporaries engaged in shipping, delivery, receiving, and warehousing without the assistance of a (Continued) 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assistant shipper, who were regularly at the warehouse, worked a 5-day week, Tuesday through Saturday (Monday was not a.workday); the truckdrivers and the most senior helper Mateski worked a regular 4-day week, Tuesday 'through Friday; and the two other helpers, Vincent Callahan and Tom Flynn, were on daily call, given the previous day, with a starting time that might vary from time to time up to 9 a.m. All were on Respondent's seniority list, under the terms of the union contract (article III, item 1), each having worked more than 31 days. In this connection, helper Callahan was senior to helper Flynn. Article III, item 3, of the union contract provided that preference would be given to employees in order of seniority to the work available within an established workweek of 45 hours. Hence, as President Spallino explained, a senior employee had preference in obtaining an aggregate of. more hours than his junior up to 45 hours per week; and it was the obligation of the employer to see that the junior employee did not get more hours per workweek than his senior, otherwise, as Spallino said, the employer had a grievance on its hands and liability to the senior employee for lost hours of work. Consequently said Spallino, while work would be assigned indiscriminately at the beginning of the ' workweek, i.e., on Tuesday, by Thursday, the employer would begin to watch seniority to see that junior employees did not get more hours than senior employees for that workweek. This contract obliga- tion, and resultant company policy, was known about the shop, as President Spallino and employee Callahan testified. President Spallino further testified that normally, as between warehouse work and delivery work, the men on delivery work got more hours per week than those working at the warehouse; and employee Callahan testified that he and the other employees preferred the delivery truck work to warehouse work, because they usually worked more hours and earned more money. Callahan gave as an example his last day of work, December 27, 1973, when we worked 10-3/4 hours on a truck, as compared to a previous 8 hours day in the warehouse. B. Discharge of Employee Callahan Employee Callahan had been employed by Respondent since May 1970. He was a helper and also a truckdriver (he had a class I truckdriver's license). When he performed as helper he was paid $4.32 per hour, when he drove he was paid $4.42 per hour, in keeping with the union contract rates. On Thursday, December 28, 1972, employees Callahan and Flynn, who was Callahan's junior, were both on call for work on notice given the previous day. When employee Callahan arrived at the warehouse in the morning of December 28 he noticed employee Flynn sitting in the helper's seat of the cab of a loaded truck that was still in supervisor, who in this case was Rego. 2 Rego phrased it in the past tense-how come Flynn went out on the truck-on a claim that the truck with Flynn had left before 9 a.m., which was Callahan's (and Loughman's) starting time that day. However Loughman, who was Respondent's witness, said he had reported in With Callahan, and had (like Callahan) also seen Flynn before the truck that the loading pit, with no driver in the driver' s seat. Callahan reported to shipper Rego at the loading platform. According to shipper Rego, he was ready to proceed with loading the last truck to go out that day to be driven by driver Loughman, but without a helper going along because it was a half-load. Driver Loughman arrived at the platform at the same time as Callahan . Rego directed both men to load the truck, a}d they started loading. Employee Callahan asked shipper Rego what he, Callahan, would be doing that day. Driver Loughman (who testified he didn't hear all that was said) recalled Rego saying, Callahan would not be going out on Loughman's truck because the load didn't warrant a helper; and Rego and Callahan agree that Rego said Callahan would be working inside the warehouse that day.. Employee Callahan then asked shipper Rego , how come employee Flynn was going2 out on delivery and he, Callahan, was working in the warehouse? Shipper Rego, by his own admission, evaded giving Callahan a direct answer or explanation, repeating to Callahan that he was working inside today and adding, "I'll explain to you later. I'm loading this truck. When this truck is loaded, I'll tell you why. I haven't got time now." According to employee Callahan, shipper Rego, and President Spallino, who was sitting at a desk a few feet from where the truck loading and conversation was taking place, Spallino got up from his desk and intervened in the discussion. According to Callahan, Spallino told Rego he didn't have to answer Callahan's questions, and apparently Rego moved away, out of hearing range of most of the ensuing conversation between employee Callahan and President Spallino. President Spallino accused employee Callahan of trying to run the business (though, as Spallino conceded, there had been no previous incident or question of this nature before involving Callahan); and Callahan replied, he was not trying to run the business but wanted to know why he was in the warehouse and Flynn was going out on the truck where he would be getting more work time than Callahan. Again, as shipper Rego did, President Spallino, by his own admission, evaded giving , an explanation or direct answer to Callahan's question, and told him only that his assignment was at the warehouse, to help unload a freight car; and in view of his attitude3 he didn't have to finish loading the truck but could leave then. Callahan testified he was ordered to go home in much stronger language; and Rego, who said that Callahan had loaded between 50 and 75 cases on the truck, testified to hearing Spallino tell Callahan to leave without completing the loading. Calla- han went home. Employee Callahan, who testified to a hitherto good relationship with President Spallino in the 2-1/2 years of his employment (confirmed by Spallino and Rego) and attributed the rough treatment that morning to Spallino's typical morning grouchiness, telephoned in that evening, as carried him left Respondent's place of business. It would therefore appear that the truck with Flynn had not departed before 9 a.m. or before Callahan raised the question regarding preference. 3 Spallino claimed that when Rego stalled giving Callahan an answer to his question, Callahan said he was going to leave after he finished loading the truck. Callahan denied saying this. CRAY-BURKE COMPANY 711 was usual, for his assignment for the next day, Friday, December 29. Shipper Rego told him there was no work for the next day (that he was laid off, as Callahan testified). Callahan called Rego again for his assignment on the evening before the next -working day, which was in the following, week, and this time Rego (in his words) told Callahan he was all through. Callahan asked to talk to President Spallino but Rego told him Spallino did not want to talk with him. President Spallino and Shipper Rego testified that previously on Friday, December 29, they discussed employee Callahan's call-in for work, and Spallino took the position that Callahan had been given an assignment on December 28, had refused it, had left the premises and quit, and was therefore to be dropped from the seniority list and not to be called or given work from then on. As Rego testified, he therefore told Callahan he was all through on the second call-in for an assignment , indeed, as Callahan testified, told him he was fired. C. Concluding Findings 1. Discharge for asserting grievance President Spallino conceded that on December 28, after his interruption of the Rego-Callahan discussion, he had told employee Callahan to leave and had given him no explanation of why employee Flynn, his junior, was sent out on the truck (the preferred work that usually produced more hours) while Callahan had been assigned to the warehoitse,.though Callahan had asked shipper Rego why.4 President Spallino said he knew that employee Callahan was concerned that the junior employee Flynn was taking what Callahan thought was his job . However, said Spallino, he was displeased with Callahan's questioning an order, something he had not done before, and was upset and concerned that questioning an order would affect morale, though he admitted it had not happened before and hasn't happened since. Both the conduct and explanation of President Spallino make clear that employee Callahan had been disciplined, by being sent home and discharged, for presenting or protesting directly to management a grievance he believed he had under the collective-bargaining contract. The right of direct presentation of a grievance by an employee, without resort to his collective-bargaining representative, is expressly reserved to the employee by the first proviso of Section 9(a) of the Act, which protects the right of the individual employee to present grievances to his employer and to have them adjusted without interven- tion of the bargaining representative, as long as the adjustment is not inconsistent with the terms of the 4 The explanation that President Spallino and shipper Rego offered at trial, though not to employee Callahan , was that a rush order for beer had come in early in the morning of December 28, that the truck going in that direction had not been scheduled to have a helper but needed one for the additional order, and employee Flynn , who was due in a half-hour earlier than Callahan, was assigned as the truck helper with instructions to come back and finish his day in the warehouse. ' S The "grievance procedure" of the contract in this case, article XIV of G.C. Exh. 2, which Respondent says was the procedure that employee Callahan should have invoked, does not purport to eliminate the statutorily recognized right of the- employee to make direct complaint or presentation to the employer. The article, comprising three items, contains only two collective-bargaining contract, provided further (second proviso) that the bargaining representative has been given an opportunity to be present at such adjustment. Black- Clawson Co. v. International Association of Machinists, 313 F.2d 179, 185 (C.A..2,.1%2); J. A. Ferguson Construction Co., 172 NLRB;1494, 1498 (1968).5 2. •.Concerted activities Respondent argues that such individual voicing or presentation of a grievance is not concerted activity within the meaning and protection of Section 7 of the Act. Therefore, says Respondent, Callahan's discharge was not in violation of the Act. The Board, with approval of the courts, has consistently taken the position that the individual presentation of an independent claim by the employee (as, for example, for overtime) under a collective-bargaining contract is protect- ed activity, "since the individual action so taken in implementation of the collective-bargaining agreement is but an extension of the concerted activity that gave rise to the agreement," B and M Excavatin& Inc., 155 NLRB 1152, 1154 (1965), enfd 368 F.2d 624 (C.A. 9, 1966); New York Trap Rock Corp., 148 NLRB 374, 375-376 (1964). Such individual activity to enforce the provisions of a collective-bargaining contract was deemed ' to be for concerted purposes even in the absence of interest on the part of the employee's fellow employees, N.LRB. v. interboro Contractors, Inc., 388 F.2d 495, 500 (C.A. 2, 1967), upholding the Section 8(aXl) violation for discharge of the complaining employee; and was likewise deemed to be for concerted purposes where the employee did not H. C. purport to act as spokesman of his fellow employeesj1969).* Smith Construction Co., 174 NLRB 1173, 1174 Squarely in point with the facts in the case at bar was N.LRB. v. Selwyn Shoe Mfg. Corp., 428 F.2d 217, 221 (C.A. 8, 1970), where the employee, who protested that a less senior employee had been given work preference, was discharged for claimed insubordination. The Board and court found that the discharge was for vigorous presenta- tion of his grievance by the employee acting alone, a discharge held to be in violation of Section 8(aXl) of the Act. The court observed that the rights secured by the collective-bargaining contract, though personal to each employee, are protected rights under Section 7 of the Act because the collective-bargaining contract is the result of concerted activities by the employees for their mutual aid and protection. As the court said, the employer's unlawful refusal to recognize the employee's right to submit the grievance led to the clash that precipitated the discharge. See also, in the same circuit, N.LR.B. v. Century pertinent provisions (the third provision-item 2-is a no-strike clause), one of which (item 3) provides that any dispute or grievance not filed or processed within 10 days from the date it becomes known to the grievant shall be considered waived; and the second of which (item 1) provides that any dispute or grievance concerning interpretation , application or compli- ance with the agreement not settled amicably between the employer and the union business agent shall at either party's request be submitted to binding arbitration. Nothing else is prescribed concerning the mode or method of procedure, and items 3 and I of the article appear to be entirely consistent with the grievant. the individual employee, making the complaint directly to the employer as well as through the union representative (orally or in writing, in either case). 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Broadcasting Corp., 419 F.2d 771, 780 (C.A. 8, 1969), holding unlawful a discharge of an employee for claiming overtime under the union contract, the court following the Second Circuit opinion in Interboro Contractors, supra. In addition to approval of the Board's view by the courts of appeals of the three circuits cited (Second, Eighth, and Ninth), at least two other circuits (Fifth and Sixth) have added their approval. In N.L.R.B v. Bowman Transporta- tion, Inc., 314 F.2d 497, 498 (C.A. 5, 1963), the court upheld the Board in finding unlawful the discharge of an employee who asserted under the union contract a grievance regarding working conditions; and in N.LR.B. v. Halsey W. Taylor Co., 342 F.2d 406, 408 (C.A. 6, 1965), where an employee was fired for insubordination because he voiced an opinion that a foreman, by working rather than overseeing work, was depriving the employee and others of overtime work, the discharge was held to have violated Section 8(a)(1) of the Act on the ground that the employee had the protected right to make the assertion as a matter of concerted activity under Section 7 of the Act. Respondent stresses the contrary view adopted by the Third Circuit in N.L. R.B. v. Northern Metal Co., 440 F.2d 881 (C.A. 3, 1971) where, in a 2-1 split, a panel of the circuit (reversing the Board) held that a single employee pressing a demand for holiday pay, to which he deemed himself entitled under the collective-bargaining agreement, was not engaged in concerted protected activities under Section 7 of the Act and was not protected by the Act from discharge. The employee was a probationary employee, not fully covered by the union contract, and claimed holiday pay to which the regularly covered employees were entitled. The majority of the court took the view that the employee's action in claiming the holiday pay was not concerted activity with other employees, and that the concept of the Board and of the Second Circuit in Interboro Contractors, supra, viewing individual action to enforce the provisions of a collective-bargaining contract as concerted activity, was a fiction that the majority were unwilling to adopt. On the other hand, Circuit Judge Biggs, who dissented, 440 F.2d at 887-889, viewed the Board and the Second Circuit Interboro Contractors interpretation as a sound interpretation of Sections 7 and 8(a)(l) of the Act, because, although an individual employee, in processing his com- plaint based upon a contractual provision, might be concerned primarily with accomplishing a result which will benefit him personally, his success will redound to the direct benefit of all employees similarly situated. Judge Biggs referred with approval to, and quoted from, the historical analysis of this issue by Circuit Judge Lay in Illinois Ruan Transport Corp. v. N.L. R.B., 404 F.2d 274, 284-290 (C.A. 8, 1968) (dissenting opinion), whose view later became the view of the Eighth Circuit in Selwyn Shoe, supra, 428 F.2d at 219-221, 226. Judge Lay summarized: 6 The majority in Northern Metal relied upon an earlier Third Circuit opinion in Mushroom Transportation Co v N LR. B. 330 F 2d 683 (C A 3, 1964), which held that an employee's mere "griping" conversations, not looking toward any grievance or group action, unrelated to a right set forth in a collective-bargaining agreement, was not concerted activity under Section 7 protected by Section 8(a)(1); and also relied upon Indiana Gear Works v N.LR B., 371 F.2d 273. 276 (C A 7, 1967), holding that an employee's posting of cartoons protesting a small wage increase was not "Where an individual employee asserts a right found in a collective-bargaining agreement, it is reasonable to state be is extending the terms protecting union activity," 404 F.2d at 285.6 Respondent also cites the recent Fifth Circuit holding in N.L.R.B. v. Buddies Supermarkets, 481 F.2d 714 (C.A. 5, June 1973), where the court disagreed with a finding of Section 8(a)(1) discharge on its view that the employee was discharged solely because of his individual griping and complaining (as the Third Circuit had found in Mushroom Transportation, fn. 6, supra), not related to an existing collective-bargaining agreement. While the court in Buddies Supermarkets was critical of the Second Circuit reasoning in Interboro Contractors and of Board reliance upon it in this case, the court made clear it was distinguishing the facts of the two cases, pointing out that the activity of the employee in the case before it did not arise in the framework of an attempt to enforce an existing collective-bargaining contract, and that the court was not repudiating the proposition that activity of a single employee looking to enforce terms of a collective-bargain- ing contract can be protected concerted activity. Summarizing, it would appear that the weight of authority and sound reason support the view that a single employee voicing or presenting a grievance to the employer under a collective-bargaining contract is engaged in concerted activity within the meaning of Section 7 of the Act. In protecting the employee against discharge because of such activity, the Board and courts have said they are not concerned with, and protection does not depend upon, the merit or lack of merit of the employee's grievance, see for example, N.L.R.B. v. Selwyn Shoe Mfg. Corp., supra, 428 F.2d 217, 221 (C.A. 8, 1970); N. L R. B. v. Halsey W. Taylor Co., 342 F.2d 406, 408 (C.A. 6, 1965); State Wide Painting and Decorating Co., 174 NLRB 5, 9 (1969). Nevertheless it is useful to note, in the case at bar, that employee Callahan's complaint to the employer, that the chance to work more hours to which seniority entitled him by contract was being taken away at the very moment he complained, was a reasonable complaint in keeping with the accepted interpretation of the contract, the circum- stances apparent at the time, and the fact that truck work normally provided more hours than warehouse work. The employer's refusal to give Callahan an explanation suggests that a valid answer may not have existed at the time and that his complaint was well taken.? As the court noted in N.L.R.B v. Interboro Contractors, Inc., supra at 500, "the Board need not find the complaints to be meritorious in order to hold the activity protected, but the fact that the complaints were apparently reasonable does support the conclusion that they were made for legitimate union purposes and were not fabricated for personal motives." By discharging employee Callahan for voicing or presenting to Respondent on December 28, 1972, a protected activity because there was no evidence of inducing or preparing for group action to correct a grievance or complaint 7 Respondent's claim, that employee Callahan was attempting to oust management's prerogative by picking his own work assignment, is unsupported by the facts and by the history, which, as Respondent admitted, was devoid of any previous complaints by or against employee Callahan on this or any subject CRAY-BURKE COMPANY 713 grievance he reasonably believed he had under the collective-bargaining contract, Respondent unlawfully discharged Callahan because and while he engaged in concerted activities within the meaning of Section 7 of the Act. Respondent thereby violated Section 8(a)(1) of the Act. CONCLUSION OF LAW By its discharge of an employee because he engaged in concerted activities under Section 7 of the Act by voicing or presenting to Respondent a grievance he reasonably believed he had under the collective-bargaining contract, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY personnel records and reports, and all other records necessary to ascertain the backpay due under the terms of this Order. (c) Post in its office and warehouse in Springfield, Massachusetts, copies of the attached notice marked "Appendix."'I Immediately upon receipt of said notice, on forms to be provided by the Regional Director for Region I (Boston. Massachusetts), the Respondent shall cause the copies to be signed by one of its authorized representatives and posted, the posted copies to be maintained for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1. in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. It will be recommended that the Respondent: (1) Cease and desist from its unfair labor practices, and from in any like manner infringing upon the rights guaranteed by Section 7 of the Act; (2) Offer to reinstate employee Callahan with backpay from the time of discharge, backpay to he computed on a quarterly basis as set forth in F. W Woolworth Co., 90 NLRB 289 (19501,, approved in N.L.R.B. v. Seven-Up Bottling Co., 344 U.S. 344 (1953), with interest at six percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), approved in Philip Carey Mfg. Co. v. N.L.R.B., 331 F.2d 720 (C.A. 6, 1964), cert. denied 379 U.S. 888; and (3) Post the notices provided for herein. Upon the foregoing findings of fact, conclusion of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: ORDERS Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise disciplining an employee who voices or presents directly to Respondent a grievance under the collective-bargaining contract or otherwise engages in concerted activities under Section 7 of the Act. (b) In any like manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to employee Vincent Callahan immediate and full reinstatement to his former job or, if the job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges; and make him whole, in the manner set forth in the section of the decision entitled "The Remedy," for any loss of earnings incurred by him as a result of his discharge on December 28, 1972. (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, " In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, recommendations, and 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 he deemed waived for all purposes 9 In the event that the Board's 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 Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board, having found after a trial that we violated the National Labor Relations Act, ordered us to post this notice. WF WILL NOT discharge or otherwise discipline you because you voice or present to us directly a grievance under the collective-bargaining contract, or because you otherwise engage in concerted activities under Section 7 of the National Labor Relations Act. WE WILL NOT in any like manner interfere with your right to engage in concerted or union activities, or to refrain therefrom. Because the Board found that we unlawfully discharged employee Vincent Callahan on December 28, 1972, because he had engaged in concerted activities under Section 7 of the National Labor Relations Act, WE WILL offer him his former or like job, and WE WILL give him backpay with interest from the time of his discharge. CRAY-BURKE COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive days its provisions may be directed to the Board's Office, 7th from the date of posting and must not be altered , defaced, Floor, Bulfinch Building, 15 New Chardon Street, Boston, or covered by any other material . Massachusetts 02114, Telephone 617-223-3300. Any questions concerning this notice or compliance with