Steel-Fab, Inc.

STEEL-FAB, INC Steel-Fab, Inc. and United Steelworkers of America, AFL-CIO. Cases 1-CA-8893 and 1-CA-9019 June 28, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On September 26, 1973, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions z of the Administrative Law Judge and to adopt his recommended Order, except as modified below. We find merit in Respondent's contention that no ruling is warranted regarding the issuance of written reprimands to six employees for engaging in possible protected, concerted activity. This matter was not al- leged in the complaint to be violative of the Act, and the complaint was never amended to encompass this incident. Further, nothing occurred at the hearing to indicate that the legality of these reprimands was at issue. Under these circumstances, we shall omit from our Order any finding or conclusion regarding the reprimands. ' We note that certain factors , in addition to those specifically relied on by the Administrative Law Judge , indicate that Respondent's demotion of Valera was effected in retaliation for union activities rather than for work deficiencies Valera was demoted from an "A" fitter to a low "B " fitter without being allowed an opportunity to perform as a high "B" fitter After the demotion , Valera continued to do the same work as he did prior to his demotion In regard to the job estimates used to show Valera's alleged work deficiencies , Respondent had never before used these estimates for discipli- nary purposes Finally, the estimated time standards are set without regard to whether a man works alone or has help it appears that a job on which Valera worked alone (P-2095) was compared to other jobs involving more than one fitter The above-mentioned factors bolster our finding that Valera was warned and demoted in violation of Sec 8 (a)(l), (3), and (4) of the Act However, in finding violations of the Act , we find it unnecessary to rely, as does the Administrative Law Judge in In 14, on the possibility that Respon- dent should have blamed its estimating department when Valera's working time exceeded the estimate 2 We agree with the Administrative Law Judge's ultimate conclusion that discriminatory motive was the "only motive " occasioning Valera's warning letter and demotion In light of this finding , we deem it unnecessary to consider the Administrative Law Judge 's discussion of possible differences between the tests applied by the Board and the Court of Appeals for the First Circuit AMENDED CONCLUSIONS OF LAW 169 1. Substitute the following for the Administrative Law Judge's Conclusion of Law Number 4: "4. By the acts and conduct set forth in Conclusion of Law Number 3, and by refusing to meet with Charles Valera as chairman of the Employees Shop Committee, Respondent violated Section 8(a)(1) of the Act. Such unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge, as herein modified, and hereby orders that Respondent, Steel- Fab, Inc., Fitchburg, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Substitute the following for paragraph 1(b): "(b) Issuing warnings or reprimands to Charles Valera because he has engaged in union activities or has given testimony under the Act." 2. Substitute the following for paragraph 2(d): "(d) Remove from the personnel file of Charles Valera the letters of warning and reprimand of April 6, 1973, and April 27, 1973, and notify him in writing that such letters have been removed from his person- nel file." 3. Substitute the attached notice for that of the Administrative Law Judge. 'APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL meet with Charles Valera as chairman of the Shop Committee. WE WILL restore Charles Valera to the classifi- cation of Fitter A, and we will offer him overtime when it is available. WE WILL pay Charles Valera for the time he lost because of a denial of overtime between January 1973 and April 1973, and because of his demo- tion from Fitter A to Fitter B. WE WILL remove from the personnel file of Charles Valera any letters of warning or repri- mand issued in April 1973. 212 NLRB No. 41 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interfere with, restrain, or coerce any employee for engaging in conduct protected by Section 7 of the National Labor Relations Act. WE WILL NOT discriminate against any employ- ee because he is a member of the United Steel- workers of America, AFL-CIO, or any other union. WE WILL NOT discriminate against any employ- ee because he has filed charges or given testimo- ny under the National Labor Relations Act, or has cooperated with the National Labor Rela- tions Board in an investigation. We hereby notify all our employees that they are free to become or remain members of the United Steelworkers of America, AFL-CIO, or any other union, and that they are free to file charges, give testi- mony under the National Labor Relations Act, or cooperate with the National Labor Relations Board in an investigation. STEEL-FAB, INC (Employer) Dated By ' (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Seventh Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300. DECISION FINDINGS OF FACT WALTER H. MALONEY. JR, Administrative Law Judge: This case came on for hearing before me upon consolidated com- plaints I issued by the Regional Director for Region 1, alleg- ing that Steel-Fab, Inc., the Respondent herein, violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended, by refusing to meet with employee Charles Valera as chairman of the Shop Committee, urging employ- 'The principal entries of formal papers are as follows charge in I- CA-8893 filed February 22, 1973, complaint in 1-CA- 8893 issued on March 30, 1973; Respondent's answer filed April 12, 1973, charge in Case I- CA-9019 filed on April 16, 1973, and amended charge in that docket filed May 30, 1973, order consolidating cases and complaint filed July 12, 1973, hearing in Fitchburg , Massachusetts , on August I and 2. 1973. briefs filed by General Counsel and Respondent on September 14. 1973. ees to replace him in said position, reducing and eliminating his overtime pay, threatening to demote him, and actually demoting him, all because Valera engaged in union activi- ties and gave testimony at a previous Board hearing. Re- spondent formally denied these allegations, but indicated that it had resumed giving Valera overtime at a reduced pay rate and would, as a gesture of conciliation, pay him for overtime lost It further indicated a willingness to resume meeting with him as chairman of the Shop Committee. Re- spondent asserts that its warning to Valera of a possible demotion and the demotion itself were prompted solely by Valera's inadequate performance in a higher job classifica- tion. Upon these contentions, the issues herein werejoined.2 A. Background and Prior Case This case 3 is basically a postscript to an earlier unfair labor practice case involving the same parties, which was tried before Administrative Law Judge Melvin J. Welles in December 1972 and January 1973. On April 20, 1973, Ad- ministrative Law Judge Welles issued a decision (JD-271-73) in which he found the Respondent herein guil- ty of violating Section 8(a)(1), (3), and (5) of the Act. In the earlier case (herein called Steel-Fab I), he recommended to the Board an order requiring the Respondent to cease and desist from interrogating employees concerning union activ- ities, promising and bestowing upon employees benefits to dissuade them from participating in union activities, threat- ening employees with reprisal for testifying in a Board pro- ceeding, and discouraging membership in the Steelworkers. Much of Steel-Fab I involved illegal pressures brought to bear upon Charles Valera, the chairman of the Employees' Shop Committee and one of the Union's principal in-plant organizers. One such act was the alleged rescission by the Respondent of a recommended pay increase, so Adminis- trative Law Judge Welles recommended a "make-whole" remedy relating to Valera. As more fully set forth in the Steel-Fab I decision, the Steelworkers lost an election conducted on August 31, 1972, among Respondent's production and maintenance employ- ees, by a vote of 36 to 35. Administrative Law Judge Welles felt that there were sufficient unfair labor practices sur- rounding this election to warrant the issuance of a bargain- ing order rather than directing a rerun of the election, and so he recommended to the Board a so-called Gissel remedy." This case involves a continuation of unfair labor practices on the part of the Respondent directed toward Valera after the record was closed in Steel-Fab I. Valera was hired by Respondent as a fitter on July 21, 1969, and has been so employed ever since. Respondent has three classifications of fitters-A, B, and C At present, it 2 Respondent admits, and I find, that it is a Massachusetts corporation which is engaged in the manufacture , sale, and distribution of steel and related products at its Fitchburg, Massachusetts, plant At this plant it annu- ally receives from, and ships to, points and places outside the Commonwealth of Massachusetts goods and materials valued in excess of $50,000 1 therefore conclude that it is an employer engaged in commerce within the meaning of Sec 2(6) and (7) of the Act United Steelworkers of America, AFL-CIO (herein called the Union or Steelworkers), is a labor organization within the meaning of Sec 2(5) of the Act 3 Certain errors in the transcript have been noted and corrected N L R 8 v Gissel Packing Co Inc. 395 U S 575 (1969) STEEL-FAB, INC. 171 maintains within each classification both high and low pay grades, which are nearly as far apart as are the pay dispari- ties between letter classifications.5 At present Respondent employs about 12-15 "A" fitters, about 10 "B" fitters, and about 4-5 "C" fitters. Valera was hired on as a Fitter B and, on June 14, 1971, was promoted to Fitter A. The following is a summary of the hourly rate increases he has received over the past 4 years, including the April 30, 1973, decrease which constitutes the most stoutly litigated part of this pro- ceeding:6 Effective date Hourly rate 1970 $2.75 5/4/70 2.85 8/10/70 3.00 2/22/71 3.10 4/26/71 3.35 6/14/71 3.55 (reclassified) 12/6/71 3.65 10/2/72 3.76 12/18/72 3.95 1 4/9/73 4.15 (companywide) 4/30/73 3.66 (grade reduced) Some of the above-recited rates resulted from in-grade in- creases made on the basis of longevity at 6 month salary reviews. Some increases, including the April 9, 1973, in- crease, reflect a companywide upward adjustment and are not personal to Valera. Valera's promotion in June 1971 was made on the ap- proval of former General Superintendent Anthony W. Mal- ta. At that time, the classification and pay system was just being introduced by Malta. Neither Valera nor anyone else who was promoted by the Respondent before December 1972 took an examination, either written or oral, to qualify as a Fitter A. More recently, mechanics are given the oppor- tunity, at a 6-month salary review, to take a written test which, with the recommendation of the foreman, will permit them to be promoted from one classification to another. When this refinement, along with refinements in the classifi- cation system, went into effect last December, a "grandfa- ther clause," as Company Director and Coordinator 5 As of April 9, 1973, when the latest companywide pay increase took effect, the hourly rate for Class A and B fitters was as follows. Class B, low-$3.66 Difference-244 Class B, high-3.90 Difference-25¢ Class A, low-4.15 Difference-26e Class A, high-4 41 6 While a company record shows that this increase was implemented on December 18, other uncontradicted evidence shows that Respondent's super- visor, Lee Plank, told Valera on December 10, 3 days before he testified, that he would soon be getting an 18-cent-an-hour raise. Edward H. Hall, Jr. (Ted Hall) described it, was invoked so that no reduction in the pay or classification of any employ- ee took place.' As more fully detailed in the Decision in Steel-Fab I, Valera was given a wage review by Malta on August 4, 1972, and was told that he would get a raise. Administrative Law Judge Welles found that, on August 11, Respondent's elder- ly president, Edward W. Hall, Sr., met Valera and told him that he was rescinding the in-grade raise because he did not do enough work for a Class A fitter. Hall (Sr.) also told Valera that, if he did not like it, he could go elsewhere. Administrative Law Judge Welles noted that only two per- sons in the whole plant who were reviewed at this time did not get increases, and that Valera was the only person in the history of the Company who was informed that he would get an increase only to find that the increase had been rescinded. From these and other facts, he reasoned that the August 11, 1972, rescission of Valera's pay increase was discriminatorily motivated .8 In the record both in this case and in Steel-Fab I is the testimony of Valera, given on December 13, 1972, at the hearing in Steel-Fab L His testimony was given in the imme- diate personal presence of Hall (Sr.). Valera recited therein his activities as chairman of the Shop Committee which met regularly with management to discuss the adjustment of grievances, as well as his activity as in-plant organizer for the Steelworkers. This activity included serving as union observer at the representation election conducted on Au- gust 31. Part of Valera's testimony in Steel-Fab I stood in direct contradiction to other testimony given by the compa- ny president. Upon, cross-examination by Respondent's counsel, Valera was asked: Q. Did you hear Mr. Hall testify yesterday that you swore at him? A. Yes. Q. Are you telling us that he is a liar? 7 The December revisions resulted from recommendations made to Steel- Fab by a firm of consulting engineers Part of the newly implemented system also involves written job descriptions for the various fitter classifications which were devised by the consultant and adopted and posted by Steel-Fab. While all of this is designed to lend an aura of objectivity to the Company's pay structure, an examination of the elements of the new Fitter A and B descriptions indicates, at least in part, that many of the written distinctions are more semantic than real. For instance, a Fitter B must "be able to use to an average degree all tools of the fitter's trade," while a Fitter A must "be proficient in use of all tools of the fitter's trade." A Fitter B must be able to "work from simple sketches, drawings, and/or specifications," while a Fitter A must be able to "interpret and meet all drawing requirements " A Fitter B must "make tests on jobs as directed," while a Fitter A must "make tests and adjustments of assemblies as required " Both must observe all safety regulations and perform other assigned tasks. Assuredly, other written re- quirements set forth distinctions in more meaningful terms. However, Ted Hall testified that other factors, such as cooperation, dependability, and helpfulness are a part of the unwritten criteria which enter into a decision to promote, demote, or take no action In short, the subjective, unmeasurable judgment of management, not the conformance or nonconformance with precise objective criteria, remains the prevailing and pervasive determinant of such matters 8 At this writing, the Board has not passed on exceptions to Administrative Law Judge Welles' decision. However, in this case, I feel free to adopt those recitations of fact in Steel-Fab Ito which no exceptions were taken, although, in the absence of a Board decision, 'I do not adopt the conclusion, premised upon those facts, that the rescission was discriminatorily motivated. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD GENERAL COUNSEL. Objection. ADMINISTRATIVE LAW JUDGE• Overruled. Q. Are you telling us that he is a liar for the state- ment he made yesterday? A. For the things that he said, yes. GENERAL COUNSEL Your honor, in light of the ques- tions going on, may the record please show that Mr. Hall is sitting approximately ten feet away from the witness. ADMINISTRATIVE LAW JUDGE. The record so notes. The record in this case reflects, without contradiction,9 that, on December 18, 1972, about 5 days after the above- recited testimony was given, Hall (Sr.) came up to Valera at his work station and informed him that he would not permit him to be present in his office any longer to attend Shop Committee meetings.1° Hall (Sr.) also told Valera that he would not speak to him any longer, because Valera had called him a liar at the trial. On December 26, a Shop Committee meeting was held in Hall (Sr.)'s office. When Valera arrived, Hall (Sr.) ordered him to leave. Valera has not attended a meeting since that time, although such meet- ings have been regularly held on a monthly basis. On the following day, in the lunchroom, Ted Hall told an assembly of employees that they should elect a replacement for Val- era because his father would not meet with Valera as a result of the Valera testimony at the trial. This statement is like- wise uncontradicted in this record, although Ted Hall testi- fied extensively on other subjects. Administrative Law Judge Welles concluded that the December 26 statement of Hall (Sr.) and the December 27 statement of Ted Hall were violations of Section 8(a)(I).11 B. Events Taking Place After the Hearing in Steel-Fab I 1. Shop Committee meetings The complaint in this case relates to further refusals on the part of the Respondent to meet with Valera as Shop Committee chairman in the months following the close of the record in Steel-Fab I. There is no doubt that such refus- als did occur. Late in April, Ted Hall began to take a much more active role in the management of the Respondent. (Previously he had spent a greater portion of his time in the management of other holdings of the Hall family.) One change which resulted is that Shop Committee meetings are no longer held in the Hall (Sr.) office, and Hall (Sr.) no longer participates in them. At the August hearing in this case, Ted Hall publicly indicated that Valera was welcome to resume his attendance at Shop Committee meetings. However, it is equally clear that this is the first time Valera had been so informed. During the month of April 1973, 9 Hall (Sr) also attended the hearings in this case and listened attentively to the testimony, but he did not testify. 10 Valera has been one of three employees elected by Steel-Fab employees to discuss grievances and shop conditions with management. 11 In light of the finding of a violation in Steel-Fab I relative to Ted Hall's speech of December 27, 1 see no need of making an additional finding in this case of a violation based on such conduct, even though it is again alleged by the General Counsel in the consolidated complaints herein. Valera took up with Foreman Quimby a grievance concern- ing employees Koch and Barjeron, who had not received their holiday pay for Good Friday. However, the refusal of Hall (Sr.) to meet with him prevented him from personally pressing a grievance relating to employee Wakefield. In- stead he left this matter to the other two committeemen. 2. Reduction of Valera's overtime No one disputes the fact that, at Steel-Fab, working over- time is a normal and expected part of an employee's duty, as well as his compensation. Employees have been criticized from time to time for a refusal or an unwillingness to work overtime. Company records reflect that, in 1972, Valera worked at least 1 hour of overtime in all but 3 weeks. His average was 4-6 hours of overtime per week. For a period of 13 consecutive weeks, running from late January 1973 until mid-May 1973 (after his reduction from Fitter A to Fitter B), Valera did not work any overtime. For most of this period of time, Valera's rate, under the pre-April 9 scale, was $3.95; his overtime rate was $5.42 per hour. Measured at an average of 5 hours overtime per week, the loss to Valera was approximately $27 per week. The normal practice of the Respondent in assigning over- time is that the employee, whoever he may be, who is work- ing on a particular job is given first priority in the assign- ment of overtime which occurs on that job.12 If he declines, the offer is then made to the senior qualified employee in the shop. Assignments are handled informally by the shop foremen on a daily basis. Valera testified without contra- diction that, during the months in question, he observed foremen giving out overtime assignments to other employ- ees while he received none. Valera asked Foreman Bob Rossiter on several occasions for overtime, but to no avail. He asked Superintendent Malta for overtime but to no avail. On one occasion, Foreman Willard Johnson came through the shop for the purpose of assigning overtime and said to Valera, "No need in asking you, Charlie, because your name is on the shit list." When this remark was re- ported to Malta by Valera, Malta said he did not know that there was such a list, but that he would check into it. Malta never returned an answer to Valera. At no time either before or during the hearing did the Respondent even offer a licit explanation as to why Valera was not assigned overtime. After Valera's demotion to a Fitter B on April 30, 1973, Foreman Richard "Jake" Quimby, who was formerly a union activist and member of the Shop Committee, told Valera that he would resume assigning him overtime since he had been demoted to a lower rate. He indicated that the resumption of overtime had been cleared with Hall (Sr.). In mid-May, Respondent did resume assigning Valera over- time. None of the above conversations were contradicted, nor did Respondent seriously challenge the allegation in the complaint relating to denial of overtime in any other man- ner. Indeed, it offered to make good the pay lost, albeit not conceding that the loss was illegally caused. 12 None of the work at Steel-Fab involves the routine manufacture of mass produced items. Steel-Fab is a job shop which fabricates a wide variety of assembled steel products on an individual order basis STEEL-FAB, INC. 173 3. Warnings and demotion On March 19, 1973, Valera and others were assigned to work on a burner designated as Job 1996 which Steel-Fab was constructing. A burner is a large metal duct which gathers and burns away pollutants which are emitted from fuels used to operate large electric generators . In this in- stance, the burners were destined for generators located in the Metropolitan New York area. One of the component elements in constructing a burner is the cutting and welding of angle irons which are used as part of the superstructure and as braces for metal plates which form a part of the superstructure. Quimby placed a written notation in Valera's file to the effect that he was slow on this job and had made a mistake in cutting angle irons at an improper length. Quimby then reassigned Valera to Job 1995, which was another burner. While a job description was furnished to Valera for this job, no blueprints were furnished. Valera called Quimby on three occasions to inquire as to the details of the cutting. On the next day, he, placed a second written notation in Valera's personnel file to the effect that Valera was slow in starting the job and did not seem to understand it despite the fact that he was shown how to do it. The second (March 20) notation was argumentative in style, in that it compared Valera's work unfavorably to those of other "A" fitters. Quimby then took Valera off of Job 1995 and assigned him to work on collector housing. Collector housings are frames about I 1 feet in height and 5 feet in depth, covered on the inside by layers of various insulating materials. They are used as giant mufflers on electric generators. At one time or another during the following month, Valera worked on four different collector housings designated as P-2024, P-2035, P-2095, and P-2096, which Steel-Fab was construct- ing for the General Electric Corporation. The vast bulk of his time was spent on P-2095. On April 6, 1973, Superintendent Malta sent Valera a warning letter, alleged by the General Counsel to have been sent for the purpose of taking reprisal on Valera for engag- ing in union activities and for testifying in Steel-Fab I. The warning letter was signed by Malta but was composed, in part, by Ted Hall, and was sent after consultation with the latter. It states: the work even after it had been demonstrated to you. This work easily qualifies in the "A"'Fitter category. You are advised that to retain your classification as "Fitter A", you must fulfill the standards and require- ments for this job description, and that shortcomings like those noted above may lead to re-classification or other action. I hope this warning serves the purpose in helping you to realize your own shortcomings and that your performance improves in this regard for the bene- fit of Steel-Fab as well as yourself. On April 27, 1973, Ted Hall wrote Valera a second letter, demoting him from a Fitter A to a Fitter B classification. The demotion was effectuated as of April 30, 1973, and is still in effect. The text of the second letter is as follows: Dear Charlie, In our warning letter to you dated April 6, 1973, signed by Anthony W. Malta, General Superintendent, we pointed out to you that employees rated in the "A" classification are expected to meet or improve on esti- mated time standards to perform assigned work, and that your shortcomings in this regard might lead to re-classification or other action. Your recent performance as a Fitter on Collector Housing order #P-2095 causes us to re-classify you to Fitter "B" at the regular rate of $3.66 per hour as of Monday, April 30, 1973. The estimated Fitting time for this type of Collector Housing is 130 hours and the summary below bears out the fact that 130 hours is a reasonable estimate. Your expenditure of 167.2 hours was still not enough to complete this order. In fact, to complete this order it was necessary to supplement your work with that of another person and the order ultimately required a total of 197.3 Fitting hours to complete. SUMMARY Dear Charlie: As part of our continuing program to maintain efficien- cy in operations, it is expected that employees rated in the "A" classification will meet or improve on estimat- ed time standards to perform assigned work. On Job No. 1996 on March 19th, you were reported by a fore- man to be very slow and that you cut the angle irons wrong. Performance of this job is basic to an "A" fitter classification. Part of the job description for a "Fitter A" states that he must be able to "perform any or all layouts on the jobs as required." On Job No. 1995 on March 20th, a foreman reported that: (1) you were slow in starting the job, (2) you did not understand how to do the work, and (3) you required additional assistance in laying out Collector Housing order # P-2024 required a total of 134.4 Fitting hours. Collector Housing order # P-2035 required a total of 139.4 Fitting hours. Collector Housing order # P-2095 required a total of 197.3 Fitting hours. Collector Housing order # P-2096 required a total of 120.0 Fitting hours. We point out that our present cost of production is $9.50 per hour and that your excessive expenditure of time on order #P-2095 was therefore of considerable cost to the company. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We are all aware of course that charges have been made concerning alleged discrimination against you by the company for reasons of union activity. I want to assure you that the action set forth in this letter has no connection whatsoever with any activities of yours other than those relating strictly to your job perfor- mance. We hope your performance improves for everyone's benefit. The demotion was to a "low B" rather than to a "high B" classification, and meant a reduction in pay of just under $20 per week if computed on the basis of a 40-hour week. As the Company began to assign Valera overtime after his demotion, the net weekly effect of the disparity in the base rate between what Valera would have earned as a Fitter A and what he actually earns as a Fitter B is somewhat greater than $20 per week C. Analysis and Conclusions I Refusal to meet with Valera in Shop Committee meet- ings and reduction of overtime The fact that the Respondent refused to meet with Valera in the regular monthly shop committee meetings because of his testimony in December 1972, in which he called Hall (Sr.) a liar, is undenied and is not otherwise explained. The concurrent refusal of the Respondent, between January and May 1973, to assign Valera overtime is likewise factually unchallenged and wholly unexplained 13 Overtime work was not restored until Valera suffered a substantial pay cut by virtue of a demotion in grade, thereby leaving him at a similar, if not greater, financial disadvantage. Foreman Wil- lard Johnson's pungent explanation to Valera of why he was not getting overtime stands unrefuted in this record and is quite consistent with Respondent's hostile attitude toward Valera noted elsewhere in this record and in Steel-Fab I. Accordingly, I conclude that the refusal of the Respondent to meet with Valera as chairman of the Shop Committee violated Section 8(a)(1) of the Act and its elimination of his overtime, between January and May 1973, was discrimina- torily motivated, thus constituting a violation of Section 8(a)(1), (3), and (4) of the Act. 13 It is well settled that the discontinuance of an unfair labor practice is no defense to the finding of a violation, the issuance of an order, or the enforcement thereof Southern Tours, Inc, 167 NLRB 363, Interstate Equip- ment Co, inc, 172 NLRB 1320, reaffirmed 179 NLRB 621, N L R B v Clinton E Hobbs Company, 132 F 2d 249 (C A I. 1942), N L R B v Draper Corporation, 159 F 2d 294 (C A 1, 1947) This principle is especially pertinent where, as here, unfair labor practices have been unremedied, or are merely transmuted into a different form The principles of res adjudicata, while applicable to Board proceedings, do not prevent the General Counsel from litigating refusal to meet with Valera which took place after the hearing closed in Steel-Fab I on January 5, 1973, since such matters could not possibly have been litigated or adjudicated in that proceeding Nor is the General Counsel precluded from litigating herein any facts which shed light on post-January 5 refusals to meet, even though such facts arose prior to January 5 and were considered by Administrative Law Judge Welles Reprimanding employees for striking to protest their omission from general wage increase On or about April 16, 1973, Respondent granted a com- panywide 5-percent wage increase, retroactive to April 9, 1973. The general increase did not apply to certain lower skilled employees Six employees on the night shift were annoyed at their exclusion from this raise and walked off the job, rather than voice their complaint through the infor- mal grievance mechanism established via the Shop Commit- tee. This committee is the product of an ad hoc arrangement and necessarily does not spring from any written agreement with a bargaining agent, inasmuch as the Respondent recog- nizes no bargaining agent for general purposes of collective bargaining. The action of these six employees in protesting the failure of the Respondent to grant them a wage increase is concerted activity which is protected by Section 7 of the Act The written reprimands sent to them by Ted Hall in April 1973 for engaging in such a protest necessarily consti- tute an interference with concerted protected activity. The General Counsel did not allege this conduct in the com- plaint as an independent violation of the Act, inasmuch as these facts first came to light at the hearing in the course of the Respondent's case in the testimony of Respondent's defense witness, Ted Hall. As the facts are undisputed in this record, stemming as they do from the testimony of Respondent's own witness, and as the character of the viola- tion is clear, I find that the action of the Respondent in issuing written reprimands to six employees for engaging in a temporary walkout to protest their noninclusion in a gen- eral wage increase constitutes an independent violation of Section 8(a)(l) of the Act. Waldensian Bakeries, Inc, 132 NLRB 1137; Young Spring and Wire Corporation, 138 NLRB 643. 3. Warnings and reduction of Valera to Fitter B classifi- cation In assessing an illegal discrimination which prompts a discharge (or, as here, a demotion), the First Circuit in 1953 set forth what I believe to be the applicable law. In order to supply a basis for inferring discrimina- tion, it is necessary to show that one reason for the discharge is that the employee was engaging in protect- ed activity. It need not be the only reason, but it is sufficient if it is a substantial or motivating reason, despite the fact that other reasons may exist. [citing N. L. R B v. Electric City Dyeing Co, 178 F.2d 980 (C A. 3, 1950), Edward G Budd Mfg Co. v. N.L.R B., 138 F.2d 86, 90, 91 (C.A 3, 1943), cert. denied 321 U.S. 778 (1944)] [N.L.R B v. Whiten Machine Works, 204 F.2d 883, 885 (C.A. 1, 1953) ] It is motivation, not Justification, which determines the exis- tence vel non of a discriminatory act, and in scrutinizing motivation, one does not have to look beyond the discrimi- natory motive, where found, to determine whether a lawful motive advanced by way of justification is either the domi- nant motive or the recessive motive which prompted the STEEL-FAB, INC. 175 action of the Respondent. While the Board has not departed from this standard, the First Circuit has. In a line of cases beginning with N.L.R.B. v. Lowell Sun Publishing Company, 320 F.2d 835 (1963), the First Circuit began to add the requirement that the General Counsel must not only establish a discriminatory motive, but he must also establish that the discriminatory motive was the primary or dominant motive which triggered the allegedly discriminatory act. In that case, the court observed that the mere fact that an employer may be pleased to discharge a union adherent does not mean that such was his primary motive. The First Circuit has followed this more demanding standard in such cases as N.L.R.B. v. Billen Shoe Co., Inc., 397 F.2d 801 (1968); N.L.R.B. v. Gotham Indus- tries, Inc., 406 F.2d 1306 (1969); and N.L.R.B. v. Agawam Food Mart, Inc., 424 F.2d 1045 (1970). The Court's most recent explication of its position may be found in N.L.R.B. v. Fibers International Corporation, 439 F.2d 1311 (1971), when it stated: Examination of the NLRB's yearly reports shows that much more often than not we have enforced the orders of the Board. There is one area, however, where we have never seen eye to eye; the test for determining whether a discharge for established misconduct was in fact an unfair labor practice. Having in mind that a business decision is involved, it has been our position that the Board has the burden of making a clear show- mg that the employer's dominant motive was not a proper business one, but union animus. In spite of con- stant reiteration, neither our cases, nor even our state- ment of the principle, appear in trial examiners' discussions of Board opinions. This failure shows itself in the result. In a footnote, the court went on to instruct the Board and its trial examiners as to the law of discriminatory motive, as the court views the law: So that there may be no misunderstanding about what we mean by dominant motive , we state it again. Regardless of the fact that enforcing the penalty may have given the employer satisfaction because of the employee's union activities, the burden is on the Board to establish that the penalty would not have been im- posed, or would have been milder, if the employee's union activity, or a union animus, had not existed. In my opinion, this case will not serve as a vehicle to resolve with finality this disagreement between the Board and the First Circuit, inasmuch as the General Counsel has here established discriminatory acts on the part of this Re- spondent not only in accordance with Board law but in conformity with the First Circuit's more exacting demands. The April 6 warning to Valera and the subsequent April 27 demotion must be evaluated against a background of union animus and unfair labor practices directed at Valera, both as a leading union adherent and a witness in a Board proceeding whose testimony provoked the particular wrath of Respondent's president. Respondent's action in warning and then demoting Valera must be evaluated in light of the fact that Valera held the classification of Fitter A for a period of 22 months before his demotion and retained the position under a "grandfather" arrangement which was em- ployed when some minor modifications of the Respondent's personnel classification system took place in December 1972. It should also be remembered that Valera is the only employee in the history of the Company ever to have been demoted. The general complaint lodged against Valera is that he is characteristically too slow and "too meticulous" in his work. To quote examples recited by Foreman Quimby, Val- era would use a grinder to take off stock from an iron bar in order to insure that the bar was cut to the proper- length, while another employee might use the faster method of cutting the bar with a torch to shave it down to proper size. On a job in August 1972, recounted by Quimby, Valera welded too many tacks, thus taking longer than another employee might who was not so "meticulous" or painstak- ing. As Quimby put it, Valera acted like a cabinetmaker. The specific complaints preceding the warning and demo- tion involved Valera's efforts on Jobs 1995 and 1996 (the burners), and Job P-2095 (the collector housing). When Quimby was a rank-and-file employee, he felt that he should be paid more than Valera because he worked faster than Valera. He testified that other employees shared his feelings. He was promoted to acting foreman at the end of January 1973, after preliminary discussions with Hall (Sr.), and was made permanent foreman on February 26, 1973. While Quimby, a former member of the Shop Com- mittee and union card signer, agreed with the management decision to demote Valera and testified in support of it, he also testified that it was Hall (Sr.) who first brought up the question of Valera's demotion with him and sounded him out as to his opinion. He further testified, somewhat equivo- cally, that he did not actually recommend Valera's reduc- tion; and did not discuss with higher management the specific question of whether Valera should be demoted to "high B" or a "low B." He agreed, however, with the compa- ny decision to make Valera a "low B." On March 19, Valera made an admitted "goof" when he cut an angle iron on a burner job too short, and had to correct his error by welding the two pieces together and recutting them at the desired length. Quimby made out a written slip noting this error, and placed it in Valera's per- sonnel file. He did not give Valera a copy of the slip or otherwise inform Valera that a written memorandum of the error was being made. Both Valera and Quimby agree that cutting an angle iron at an improper length is not an unusual mistake in the shop, but Quimby was of the opinion that this particular error was so bad that Valera should have known better than to have made it. The following day, Quimby placed another written notation in Valera's file, again with- out Valera's knowledge, to the effect that Valera did not seem to know how to lay out the burner job to which he was assigned. This notation was prompted by several questions about the job posed to him by Valera, who had not been given blueprints or other detailed instructions concerning 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the specifications of the project. About 2 weeks later, after Valera had been transferred by Quimby to collector hous- ings, Malta, with Ted Hall's assistance, wrote Valera a warning letter, quoted supra, to the effect that he was not performing up to the standards expected of a Fitter A and citing his work on Jobs 1995 and 1996 as examples. The letter further stated that Valera should improve or he might be demoted; Having reprimanded Valera for the quality of his work on the burner job, Respondent then proceeded to effectuate a demotion 3 weeks later because of Valera's painstaking "cabinetmaker" performance on collector housings, and particularly on Order P-2095. According to the Respondent, Valera was too slow in comparison with the job estimates performed by the estimating department.14 According to Respondent's figures, Valera put in 167 hours on P-2095, in addition to 30 hours of fitter work performed by another employee. As Valera was receiving no overtime during this period, this figure represents approximately 21 days' time, about 12 of which must have been completed before the issuance of the April 6 warning letter. The demotion letter of April 27 contains a list of fitter hours required on other collector housing jobs, although the record herein does not show whether such jobs were the equivalent to P-2095 in either scope or complexity. When Quimby first brought to the attention of Superintendent Malta the fact that P-2095 was going slow and would not meet the deadline requested by the customer, Malta told Quimby to let the matter go because Malta was timing or watching this job. Normally, when a job moves slow, the foreman exercises his discretion to assign additional men to the job or authorize overtime work. While there was testimony in the record about cus- tomer complaints of late delivery of the P-2095 collector housings, these complaints were apparently not serious enough to prompt the Respondent to interfere with its time study of Valera's performance, either by adding another employee to the job or by authorizing overtime as it was wont to do in such situations. Foreman Quimby did not know why Valera was being timed on P-2095, and stated that it was unusual to time a job in the manner in which P-2095 was being watched.15 He did testify that Malta in- structed him to relay an order to the night-shift foreman not to work on P-2095, so that Valera could be accurately timed. In his testimony Ted Hall supplied the reason for timing the P-2095 job: Q. Again, what is the basis of this pattern of poor behavior (on the part of Valera)? A. Well, you have to realize that I am relying on information provided me by subordinates, so-and that information was what I have testified to. And what, in addition to that, I have heard-that in general 14 It is admitted that, from time to time, the estimating department had been in error by making overly conservative estimates of the time necessary to perform a job However, when Valera' s work ran over the estimate of P-2095, it never occurred to the Respondent to place any blame for the discrepancy on the estimating department 15 Quimby noted that, on a couple of occasions, the company timed jobs involving an employee who complained that he should be promoted to a Fitter A classification Charlie's work was slow, he worked at a slow pace and took longer to do work than others in the same classifi- cation. And I had heard this criticism of over meticu- lous workmanship, overly elaborate tacking. And the general climate of dissatisfaction by the other people who were comparing their pay with his, which we have gone through. Now, that was not-that kind of information was not sufficient for us to issue any kind of a warning. And we felt that we had to have some sort of hard facts. And we felt that the collector housings, those four on which actual times were reported to us by the cost accounting department, were reasonably enough hard facts, plus the estimate from the estimating department, to issue that demotion.t6 In short, the Respondent set out to make a case against Valera on collector housings, and, upon information sup- plied by its staff departments, it did so. Hall (Sr.) laid the groundwork by sounding out Quimby as to whether Quim- by would back up a charge of slowness against Valera. Slips placed in Valera's file without his knowledge provided the backup. Orders to isolate Valera's work so that Valera could undergo the unusual scrutiny of a personal study by the cost accounting department were given. Then, armed with the specific information it set out to find, Respondent demoted Valera on April 27. There is little doubt that Valera worked at a pace which was somewhat slower than at least some other Fitter A employees at Steel-Fab. However, Respondent knew this in 1971 when it promoted Valera to Fitter A, and it has contin- ued to be aware of Valera's work habits ever since, including the day of December 10 (lust before Valera's testimony) when Lee Plank promised Valera an 18-cent wage increase as a Fitter A. There is no suggestion in this record that Valera's work is any different or any slower now than it was a year ago. The general complaints against him run some- what at a variance. Valera was both sloppy and inaccurate, according to the import of Quimby's March 19 and 20 "warnings"; he is also too meticulous and hence too slow. While Quimby, a newly appointed foreman anxious to earn his stripes as a company man, supported the actions of higher management, he did not generate these actions, as might be expected with a complaint involving a slow or technically inept employee. The impetus for the demotion came from Hall (Sr.), whose personal antipathy toward Val- era is well known and undenied Hall (Sr.) once told Valera that, if he did not like things at Steel-Fab, he should leave. In January, Respondent reduced Valera's take-home pay by eliminating his overtime. Neither of these strategems served 16 Time estimates on particular jobs are made by the estimating depart- ment Actual time spent is compiled from job time-cards submitted to the cost accounting department Estimates are, of necessity, an integral part of bidding a job Such estimates are never furnished to foremen or to the employees who are assigned to particularjobs Ted Hall explained why If time estimates were furnished to an employee, the employee would have a tendency to adjust his working speed to the estimate, while the company is continually in hopes that, by keeping employees in the dark as to what is expected of them, they may be prompted to turn out the work in a shorter period than is anticipated As a result of this policy, Valera was assertedly demoted for failing to meet estimated time standards about which he was kept wholly uninformed STEEL-FAB, INC. 177 to shed the company of a voluble union adherent, so Hall (Sr.) hit upon the idea of a demotion which would cause Valera permanent economic injury making him the only employee in company history ever to have been demoted. As with its other actions, the reasons advanced here by the Respondent have within them the hollow ring of pretext. The entire warning and timestudy on the P-2095 project was undertaken to find support for a prearranged determination which Hall (Sr.) was insistent upon making when his other economic reprisal against Valera did not achieve the desired result. A discriminatory motive was not only the dominant motive for these actions. It was the only motive. I so find and, in finding, conclude that the demotion and the warning letter which was its predicate constitute violations of Sec- tion 8(a)(1), (3), and (4) of the Act. Murphys Body Works, Inc., 174 NLRB 824; Crown Central Petroleum Corporation, 177 NLRB 322. On the basis of the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in operations affecting commerce, within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to assign overtime work to Charles Valera, by issuing letters of warning and reprimand to Charles Val- era on April 6, 1973, and April 27, 1973, and by demoting Charles Valera from the classification of Fitter A to the classification of Fitter B, all as found above, Respondent violated Section 8(a)(3) and (4) of the Act. 4. By the acts and conduct set forth in Conclusion of Law 3, by refusing to meet with Charles Valera as chairman of the employees Shop Committee, and by issuing letters of reprimand in April 1973 to six employees because they en- gaged in the concerted, protected activity of a walkout to protest their exclusion from a general wage increase, Re- spondent violated Section 8(a)(1) of the Act. Such unfair labor practices affect commerce within the meaning of Sec- tion 2(6) and and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom, and to take certain affirma- tive actions designed to effectuate the purposes and'policies of the Act. With respect to the issuance of April warning letters or letters of reprimand to Valera and to the six em- ployees who engaged in a protest walkout, it is appropriate that the Respondent be required to remove these letters from the personnel files of the said employees and to notify said employees in writing of its action. I will so recommend. Graber Manufacturing Company, Inc., 158 NLRB 244. With respect to the scope of the cease-and-desist order directed to suppressing violations of Section 8(a)(1) and (3) of the Act, I am cognizant of a recommended order contained in Steel-Fab I which is directed at the specific illegal conduct found therein. This recommended order was issued on April 20, 1973, prior to the demotion which was found herein to be illegal. It thus appears that a recommended order tai- lored to specific illegal conduct is insufficient to dissuade this Respondent from engaging in other similar or related violations of the Act. Accordingly, I will recommend a broad cease-and-desist order, in hopes that it will encourage this Respondent to regard its obligations under the Act more seriously. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941). Also included in the remedy recommended herein is a requirement that Respondent restore Valera to his former job classification, make him whole for any loss of overtime pay he would have received between January 1973 and May 1973, and make him whole for any loss of pay suffered because of the demotion, all in accordance with the Woolworth17 formula with interest computed at 6 percent per annum. I noted at the outset of this Decision that it is a postscript to an earlier decision and recommended order, issued on April 20, 1973, in Steel-Fab I. Accordingly, both for reasons of administrative convenience and economy, and because the violations found herein may have a bearing on the ap- propriateness of the remedy recommended in Steel-Fab I, I will further recommend that the Board consolidate this case with Steel-Fab I. Upon the foregoing findings of fact, conclusions of law, and upon the entire record considered as a whole, I make the following recommended: ORDER is Respondent, Steel-Fab, Inc., and its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Refusing to meet with Charles Valera as chairman of the Shop Committee. (b) Issuing warnings or reprimands to Charles Valera or other employees for engaging in concerted protected activi- ty, or because they have engaged in union activities or have given testimony under the Act. (c) Refusing to offer overtime to Charles Valera or to any other employee because they have engaged in union activi- ties or have given testimony under the Act. (d) Demoting employees because they have engaged in union activities or because they have given testimony un- der the act. (e) Interfering with, restraining, or coercing employees in any manner or by any means in the exercise of rights guar- anteed to them by Section 7 of the Act. (f) Discouraging membership in the United Steelworkers of America, AFL-CIO, or any other labor organization, by any discrimination of any kind in the hire or tenure of employment or any term or condition of employment, ex- cept as such may be lawfully affected by an agreement 17 F W Woolworth Company, 90 NLRB 289 is 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. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD containing a union-security clause as a condition of employ- ment as authorized in Section 8(a)(3) of the Act. (g) Discriminating against any employee because he has filed charges or given testimony under the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act: (a) Restore Charles Valera to the classification and pay of'a Fitter A, and notify him in writing that Respondent has no objection to meeting with him as chairman of the Shop Committee. (b) Offer to Charles Valera overtime when it is available. (c) Make whole Charles Valera, in the manner set forth in the section hereof entitled "Remedy," for any loss of earnings suffered by reason of the withholding of overtime from the said employee and by reason of the demotion of said employee. (d) Remove from the personnel file of Charles Valera the letters of warning and reprimand of April 6, 1973, and April 27, 1973, and remove from the personnel files of the six employees reprimanded in April 1973 any written repri- mand for engaging in a protest walkout, and notify in writ- ing each of the aforesaid employees that such letters or statements have been removed from their respective person- nel files. (e) Post at its premises in Fitchburg, Massachusetts, cop- ies of the attached notice marked "Appendix." 19 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's author- ized representative, shall be posted by it immediately upon receipt thereof, and shall be maintained by it for 60 consec- utive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 1, in writing, within 20 days from the receipt of the Decision, what steps the Respondent has taken to comply herewith. I FURTHER RECOMMEND that this case be consolidated with Steel-Fab, Inc, Case 1-CA-8560 (JD-271-73). 19 In the event the Board's Order is enforced by a Judgment of the 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 "