Skrl Die Casting, Inc.

SKRL DIE CASTING 85 Skrl Die Casting, Inc. and Rufus Guy. Case 8-CA-8969 January 9, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On September 15, 1975, Administrative Law Judge Herzel H. E. Plaine issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board-has delegated it au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as herein modified.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below, and hereby orders that the Respondent, Skrl Die Casting, Inc., Eastlake, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified. 1. In paragraph 1(b) substitute the words "in any other manner" for "in any like manner." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. i In his recommended Order the Administrative Law Judge uses the nar- row cease-and-desist language, "in any like manner." The discharge of em- ployee Rufus Guy for engaging in protected concerted activities is an unfair labor practice which goes to the very heart of the Act. We shall, therefore, modify the Administrative Law Judge's recommended Order to require Re- spondent to cease and desist from in any manner infringing upon the rights guaranteed to its employees by Sec. 7 of the Act. N.L R B. v. Entwistle Mfg Co, 120 F 2d 532, 536 (C.A. 4, 1941) after a hearing, that we violated the National Labor Relations Act: WE WILL NOT discharge you, lay you off, or otherwise discipline you because you protest in concert with fellow employees our repudiation of the policy or promises to pay bonuses, or be- cause you engage in any other protected con- certed activity under Section 7 of the National Labor Relations Act. WE WILL NOT in any other manner interfere with your right to engage in protected concerted activities, or to refrain therefrom. WE WILL offer Rufus Guy his former or like job, and WE WILL give him backpay with interest from the time of his discharge on February 25, 1975. SKRL DIE CASTING, INC. DECISION HERZEL H.E. PLAINE, Administrative Law Judge: Re- spondent, Skrl Die Casting Inc., a manufacturer of alumi- num die castings, has been charged with violating Section 8(a)(1) of the National Labor Relations Act, as amended (the Act), by discharging one of its die-cast machine opera- tors, the Charging Party Rufus Guy, in February 1975 al- legedly because he protested, in concert with his fellow employees, Respondent's failure and refusal to pay the Christmas 1974 bonus.' Respondent contends it discharged employee Guy in the course of a legitimate reduction in force as the least pro- ductive die-cast machine operator and the most injury prone employee. Respondent further contends that, even if the discharge had some connection with the, employee pro- test of the nonpayment of the Christmas bonus, the protest was not protected concerted activity under Section 7 of the Act because Respondent's bonuses of, the past had been mere gratuities and not part of wages, and hence the pro- test was outside the umbrella of protected activity. The case was heard in Cleveland, Ohio, on May 28, 1975. Counsel for the General Counsel and Respondent have filed briefs. Upon the entire record of the case, including my obser- vation of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT 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, 1. JURISDICTION Respondent is an Ohio corporation with its principal place of business in Eastlake, Ohio, where it is engaged in the manufacture of high pressure aluminum die castings. Annually, in the conduct of its business, Respondent ships goods and materials valued in excess of $50,000 from i The complaint, issued on April 10, 1975, was founded on a charge filed on February 25, 1975. 222 NLRB No. 22 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its place of business in Ohio directly to points outside Ohio. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE UNFAIR LABOR PRACTICES A. Respondent's Business Operations Respondent has been in business approximately 8 years producing aluminum-die castings largely for use in the au- tomotive industry. Respondent operates its plant on a three-shift, round- the-clock basis, each shift comprising approximately 14 to 16 employees. From the testimony of first-shift Foreman George Harris and several employees, there are four basic working jobs: (1) die-cast machine operator, which is the job requiring the most skill and experience, and is the highest paid of the jobs; (2) die-cast operator helper, also called finger puller because the employee pulls inserts from casting for reuse; (3) metal tender or furnace tender, who provides the die- cast machine operator with aluminum to make the cast- ings; and (4) hot inspector, who gives the castings a second visual inspection, and sands and packs or bands them on a skid or pallet for removal and shipment. On some jobs there is also the need for a punch press operator or opera- tors. - Each of the three shifts is made up of employees doing these several jobs and is under the immediate supervision of a foreman. Foreman for the first or daytime shift (7 a.m. to 3 p.m.) is George Harris, who has been a foreman for Respondent since it began operations in 1967. Foreman Harris has an assistant foreman, Hamby. Management above the foreman level, in order of com- mand, comprises Stanley Skrlj, who is president and owner of the company; Rollin Graham, a vice president and son- in-law of President Skrlj; Gene Szuch, general manager, and also a son-in-law of President Skrlj; Al Nason, plant manager; Edward (Eddie) Hainrihar, assistant plant man- ager, who, according-to Foreman Harris, is being groomed to succeed Plant Manager Nason when he leaves; and Frank Pellegrini, plant superintendent or supervisor. Plant Superintendent Pellegrim is the immediate supervisor of Foreman Harris. All of the foregoing, from president through foremen, are supervisors within the meaning of the Act. In addition, President Skrlj's daughter Sandra Szuch, wife of General Manager Gene Szuch, performs the duties of controller of the company. B. The Bonus Protest Respondent's plant is not unionized, and the-employees have no collective-bargaining representative. The case in- volves a protest of Respondent's failure to pay an employ- ee bonus at Christmas 1974 and thereafter. -Employees -Rufus Guy and Melvin Thomas, both of whom began their employment in 1969, and Foreman Har- ris, who began his employment as a foreman with the company's beginning in 1967, testified without contradic- tion that in each year of their employment Respondent paid the men a bonus twice a year, at vacation time and Christmas time. Employee Thomas testified that when he was hired he was told it was a nonumon job, that the com- pany would pay a bonus twice a year, but would pay no pension and no benefits. Foreman Harris testified that President Skrlj had a habit of waiting until the last minute to direct payment of the bonuses, but nevertheless they were paid, and though he (Hams) questioned this last-min- ute practice in the early years he gradually accepted it without question. However, on Christmas Eve, December 24, 1974, instead of receiving a bonus, the employees were told, in a locker room meeting of first- and second-shift employees, by General Manager Gene Szuch and Assistant Plant Manag- er Eddie Hainrihar, that Respondent's customer Lancaster owed a lot of money and Respondent could not pay the Christmas bonus now. When asked when the bonus would be paid, General Manager Szuch replied he could not be specific but it would probably be paid at the end of Janu- ary 1975. According to Foreman Harris, the men were re- lieved and accepted General Manager Szuch's statement. Neither Szuch nor Hainrihar, both of whom testified, nor anyone else for Respondent denied or contradicted this testimony regarding the December 24 meeting. At the end of January 1975, Foreman Harris was in- formed by third-shift Foreman Tekovich that the time for payment of the bonus had been moved to February 14, 1975, Valentine's Day, by General Manager Szuch. Fore- man Harris relayed the information to the employees on his shift. Again this information and promise to the em- ployees was not denied or contradicted by anyone in Respondent's management .2 On the morning of February 14, 1975, Foreman Harris ascertained from the third-shift foreman, Tekovich (whose shift winds up at 7 a.m.), that his men had not received the bonus and nothing had been said to Tekovich about it. Nor was anything said by management to Harris. Sometime during the early morning President Skrlj came through the shop. He asked employee Paul Wilson (a metal tender on the first shift, with Respondent since 1968) how he was doing, and Wilson replied he'd feel better if Skrlj told him about the bonus he usually received. Skrlj responded that there was no bonus money. Wilson said he'd have to -get another job. According to Wilson, Skrlj became angry and walked away. Employee Wilson said he passed the word of his encoun- ter with President Skrlj, and the no bonus money response, around the shop. As a result, said employee Wilson, em- ployees Rufus Guy and Melvin Thomas, both die-cast ma- chine operators, got together a meeting of all of the first- shift employees. According to employee Guy, the employ- ees met in the locker room and decided to shut down the machines and go home at 11 a.m. Word of the decision to walk out was passed to Foreman Harris who asked the men not to shut down and he would 2 Indeed, the only testimony from Respondent's management on this as- pect of the bonus came from Controller Sandra Szuch, who confirmed that Respondent paid a bonus twice yearly, but offered the opinion that it wasn't considered by Respondent as a part of wages but "more of a gratuity " SKRL DIE CASTING 87 try to get an explanation. Word of the decision apparently also reached Vice President Rollin Graham who, according to employee Guy, came by and asked employees Guy and Thomas to keep the employees from going home and to meet with management. So instead of the walkout at the prearranged hour of 11 a.m., Guy and Thomas had the men assemble in the lunchroom for a meeting with man- agement at I1 a.m. Meanwhile Foreman Harris had gone to Plant Manager Nason and Assistant Plant Manager Hainrihar telling them they faced a shutdown at 11 a.m. if there was no explana- tion to the men concerning the bonus. A hastily called office meeting of President Skrlj, Plant Manager Nason, Assistant Plant Manager Hainrihar, Foreman Harris, and Assistant Foreman Hamby was held. Foreman Harris testified that President Skrlj screamed at him that the men were trying to force Skrlj to pay money he didn't have. Harris replied that the men were only trying to find out what was going to happen with the bonus. Ac- cording to Harris, Skrlj yelled at him to go and collect the unpaid money due the company. -Vice President Rollin Graham, Skrlj's son-in-law, joined the meeting and discussion at this point, said Foreman Harris. President Skrlj refused to talk to the men, who were now assembling, and Vice President Graham agreed to talk to them. At 11 a.m. the employees of the first shift had assembled in the lunchroom, and Vice President Graham, Plant Man- ager Nason, Assistant Plant Manager Hainrihar, and Fore- man Harris joined ,them. According to the testimony of employee Guy and others, including Assistant Plant Man- ager Hainrihar, Vice_ President Graham told the employees that Respondent didn't have money for the bonus yet, that (customer) Lancaster owed a great sum of money that Re- spondent hadn't received, and when Lancaster paid, the bonus-would be paid. Employee Guy asked, how do we know when,Lancaster is going to pay you, and Graham replied, when we get the money you will be paid. Guy countered by saying, you made a promise before and didn't stick to it. According to Guy, Graham didn't answer this and talked of something else. Foreman Harris asked when would, the men know Lancaster had-paid, and Gra- ham responded, if you see a Lancaster die back in the machines you'll know. There were one or two other ques- tions asked, according to Harris, without identifying them, and the employees returned to work.3 However, at the time of hearing, about 3-1/2"months later, the bonus had not been-paid. - 3 Assistant Manager Haindhar was in' substantial agreement with this account of the meeting; 'except that he claimed he couldn't remember whether employee Guy asked questions or spoke up_ (Vice President Gra- ham and Plant Manager Nason did not testify.) On the other hand, employ- ee Melvin Thomas was quite clear that employee Guy spoke up and asked the questions of Graham at the meeting,-and that he, Thomas, did not speak up and remained silent . Due to feelings that Hainrihar revealed-that he had or developed about employee- 3uy; discussed infra, I am inclined to believe that Hainnhar's claimed lack of memory was self-serving and feigned, that he was well aware of Guy's challenge to Respondent at the, meeting, and that his awareness coritributed'to the feelings of antipathy that he -developed towards employee Guy C. The Discharge of Employee Guy 'About an hour after the employees of the first shift re- turned to their machines on February 14, 1975, according to employee Guy, he was told by Foreman Harris that there was going to be a layoff, without Harris saying who was to be laid off. Foreman Harris testified that, following the employee protest on February 14, he was asked by General Manager Szuch, Plant Manager Nason, and Assistant Plant Manag- er Hainrihar for a list of the three "worst"-least compe- tent-operator helpers on his shift. Foreman Harris sub- mitted three names (employees Brown, Almus, and Easly) that afternoon, and they were laid off. Foreman Harris testified that he was not consulted, how- ever, on the subsequent layoff or change in employee sta- tus that followed the layoffs of the three helpers. On February 25, employee Guy was told by Assistant Plant Manager Hainrihar, in the presence of Foreman Hams, that he was laid off.5 Hainrihar told Guy there was a cutback in employment and handed him a termination slip. Guy asked why he was being dropped when there were others with less seniority being retained. Hainrihar replied they were making more pieces than Guy was. Guy said this was the first time anyone had told him that, and Hainrihar responded that he was telling Guy now, and he had to be laid off. Guy said he had a family, that Hainrihar knew he could do any job in the shop, and he would take a cut in pay and any lesser job, and go on second or third shift; but Hainrihar was adamant and refused the offer. Foreman Harris corroborated, and Assistant Plant Man- ager Hainrihar did not contradict, employee Guy's testi- mony or any of the testimony concerning the termination discussion. Foreman Harris testified that he did not under- stand, and was upset by, the discharge of Guy because Guy was one of the better employees who could do any job in the shop, and he let Hainrihar know it then and there by suggesting that Hainrihar lay him (Harris) off too. Hainri- har said he could not do that. At the same time that employee Guy was discharged, employees Curtis Hinton and Melvin Thomas, both fellow die-cast machine operators with Guy on the first shift, were reduced to helper jobs, Thomas to finger puller and Hinton to hot inspector. Foreman Harris testified that employee Hinton had not been a hot inspector before, but had start- ed as a metal tender, whereas employee Guy had started as a hot inspector, and worked in all of the jobs in the shop, and was better at the helpers jobs than two or three of the five helpers retained on the first shift. Moreover, in Harris' opinion, not only was Guy a superior all-around employee, but he was, also a better producer as a die-cast machine operator than employee Hinton, and compared favorably 4On February 24, at the suggestion of employee Guy, a group of employ- ees accompanied by Foreman Harris visited the Board's Regional Office seeking advice on the bonus and alleged employer harassment of the em- ployees, but there was no evidence that any of Respondent's supervisors other than Foreman Harris was aware of the visit i While the-terminology was "laid off," the meaning and action was final separation from employment or discharge, as the total pertinent testimony indicated. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with any of the die-cast machine operators on any of the three shifts 6 Employee Guy was the only one of the die-cast machine operators on any of the three shifts to be discharged or laid off, as distinct from the temporary demotion of several die-cast machine operators under the policy, enunciated by General Manager Szuch, of dropping helpers in favor of retaining the skilled operators on the payroll in the lesser jobs until the time when they would be moved back as operators. D. Respondent's Justification of the Discharge General Manager Gene Szuch testified that, though cal- endar 1974 was a good year for Respondent (measured by production in pounds of finished aluminum products, no sales or dollar figures were given, see testimony of Control- ler Szuch), there was a sharp reduction in production in December 1974 with some carryover of this reduction in early 1975, attributed to cutbacks in parts orders by auto- mobile companies and curtailment of allotments of natural gas used by Respondent in its furnaces. Initially, according to the testimony, Respondent went from a 6-day to a 5-day workweek (and a few 4-day weeks) and then, said General Manager Szuch, it was decided to reduce the size of the work force. As a result, according to Szuch, between the end of January and the end of Febru- ary 1975, there was a layoff (meaning discharge) of 14 or 15 employees, Respondent dropping those employees with the least to offer, he said. In this connection it had been decided to drop least skilled employees first, and to retain the most skilled-the die-cast machine operators-with some temporary demotions of some of these to the lesser helpers jobs and pay until the time when they could resume their operators jobs and pay. Foreman Harris testified that before February 14, 1975, the day of the first-shift bonus protest, there was only one layoff (discharge) of a helper per shift, or a total of three helpers discharged from the whole plant work force. There also appears to have been three temporary demotions be- fore February 14 of three die-cast machine operators who were restored to operator jobs after 2 or 3 weeks. Employee Guy was not one of these, although General Manager Szuch claimed that he and Plant Manager Nason and As- sistant Plant Manager Hainrihar had decided to do some- thing about employee Guy around January 1, 1975. Szuch further claimed that the decision to lay off (discharge) Guy on February 25 was made about a week before his layoff, which was a few days after the February 14 bonus protest. General Manager Szuch and Assistant Plant Manager Hainrihar testified that employee Guy was discharged be- cause he was the lowest producer in 1974 among the die- cast machine operators and because he was deemed to be a physical hazard to himself by reason of his injury record in 1973 and 1974. In the matter of production, both managers recognized 6 No one disputed Foreman Harris' claim that he knew all of the ma- chine operators on all of the shifts and knew their abilities. Moreover, Gen- eral Manager Szuch conceded that employee Curtis Hinton was not a good die-cast machine operator (the job he worked at before demotion) and was not a good hot inspector (the job to which he was demoted), but claimed that he kept Hinton because he was a good metal tender that employee Guy had been a top producer in 1973 and prior years, but claimed that their statistics of pieces pro- duced in 1974 showed him to be the low producer in 1974. Supporting this claim was a not very informative one sheet summary (Resp. Exh. 3) purporting to show Guy at the bottom of several columns of figures and close to the bot- tom of one column. Significantly these figures and the pa- per were put together after the discharge; in fact, said As- sistant Plant Manager Hainrihar, they were prepared for delivery to a Board agent -investigating the case. Against this alleged paper record was the testimony of employee Guy's immediate supervisor, Foreman Harris, who had supervised and observed Guy daily for over 6 years and appraised him as: a good operator, not as fast as some, but having more knowledge of the machines and the work than others; one of the better employees who could do any job in the shop, and who compared favorably with any of the die-cast machine operators on his shift or the other shifts; prior to 1974 a kind of super employee who usually went over quota, in 1974 he made quota and on a piece-work basis compared favorably with the other first shift machine operators, and was clearly superior in pro- duction to his colleague Curtis Hinton. Hinton was one of the retained operators temporarily demoted to a hot inspector's job when Guy was discharged, and General Manager Szuch, in his testimony, agreed with Foreman Harris' appraisal that Hinton was not as good a machine operator or all-around employee as Guy. Employee Guy's injury record comprised five instances in 1973 and five in 1974, when he was given medical exami- nation or simple treatment for minor burns or contusions or fume inhalation. Assistant Plant Manager Hainrihar tes- tified that none of the injuries caused any loss of produc- tion time, no claims for workmen's compensation were made against Respondent, and the medical cost in each instance was in the range of $10, $12, or $15 (one case was $39), see Respondent Exhibit 1. Hainrihar further testified that Respondent's concern with injuries, when the employ- ee was a machine operator, was the time lost by the injured man that hurt production. He conceded that, whereas em- ployee Guy lost no production time in connection with his injuries, there were some employees (including Hainrihar himself, who suffered two major injuries in 1974) who lost considerable time, such as machine operator' Stanley who was out injured for a month and a half. Both managers, Szuch and Hainrihar, confirmed em- ployee Guy's testimony that he had not been warned or talked to in the course of his employment about his pro- duction or the 1973-74 injuries, and Szuch testified that he did not ask Guy's supervisor, Foreman Hams, to talk to him or warn him.7 In fact, neither Szuch nor any other manager consulted Foreman Harris nor sought his views on whether employee Guy should have been discharged or assigned to other work in the shop. In deciding to discharge Guy rather than temporarily assign him to other work (as Respondent did with the other machine operators rather than discharge them), General Manager Szuch and Assistant Plant Manager Hainrihar 7 Hamnhar sought to excuse his failure to discuss with employee Guy, or warn him of, any of his alleged shortcomings by saying, "Rufus was a hard guy to talk to so I didn't bother talking to him." SKRL DIE CASTING 89 disclaimed having considered Guy's participation and role in the employee bonus protest. However, I find this diffi- cult to accept when their further explanations are exam- ined. Szuch said he did not consider employee Guy for the other work, not because Guy could not do it, but because Guy didn't want to do it. It will be recalled that Guy plead- ed for the opportunity to do any work on any shift rather than be dropped. Hainrihar said he was afraid of the static it would cause on the floor if employee Guy was not work- ing as an operator on a machine due to Guy's possible agitation of other employees. Hence, along with his injury record and production record, 'management decided against assigning Guy to other work and to discharge him. E. The Concerted Activity Respondent contends that the protest by the first-shift employees on February 14, 1975, concerning Respondent's failure to pay the Christmas 1974 bonus, was not protected concerted activity under Section 7 of the Act because the employees were not protesting a wage or term or condition of employment but were protesting the failure to pay a mere gratuity. Hence, says Respondent, even if employee Guy's discharge were related to his role in the protest, Guy was not protected by the Act. - Without passing on the correctness of this proposition even if its assumptions are correct, it should first be noted that, while the parties did not fully litigate whether the Christmas bonus was a part of wages or a gift, there was considerable evidence that could lead to a finding (were the matter litigated) that the bonus was a part of Respondent's wages to its employees and not a gift. The testimony indicated that, from the beginning of the company operations in 1967, Respondent paid two bonus- es each year, a vacation bonus and a Christmas bonus, that hiring was done with that information given to prospective employees, and that they were informed the bonuses were paid in lieu of a pension and other benefits. While amounts and certain other data relevant to determining that the bo- nuses were part of wages 8 were not supplied, in this record, the only contrary evidence was the mere assertion by the company controller that the bonus was a gratuity. As was aptly said in N.L.R.B. V. Niles-Bement-Pond Company, 199 F.2d 713, 714 (CA. 2, 1952), regarding Christmas pay- ments of the employer: "It does, of course, merely beg the question to call them 'gifts' and to argue, however persua- sively, that gifts per se are not a required subject for collec- tive bargaining. But if these gifts were so tied to the remun- eration which employees received for their work that they were in fact a part of it, they were in reality wages and so within the statute." Moreover, the evidence was unrefuted that when the Christmas 1974 bonus was not paid at Christmas (and this was the first time a bonus was not paid) the employees were promised by management it would be paid at the end of Janury 1975, and when not paid then, were promised it would be paid on February 14, 1975. On February 14, 8 See Radio Television Technical School, Inc, t/a Ryder Technical Institute v. N.L.R.B., 488 F.2d 457 (C A. 3, 1973); N L R.B v. Wonder State Manu- facturing Company, 344 F.2d 210 (C A 8, 1965). Respondent's President Skrlj repudiated that promise. Accordingly, when the first-shift employees, led by em- ployees Guy and Thomas, left their machines on the morn- ing of February 14 and threatened to walk out, they were engaged in concerted activity to protest the company's re- pudiation of its bonus policy and bonus promise; and they continued to engage in such concerted activity when, in- stead of walking out, they met with Respondent' s manage- ment representatives and sought to obtain restoration of, and reassurance on, the bonus policy and promise of pay- ment. As set out in N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 12-15 (1962), such conduct of the employees was protected under the provision of Section 7 of the Act which guarantees that "Employees have the right . . . to engage in . . . concerted activities for the purpose of col- lective bargaining or other mutual aid or protection," and a discharge of a worker in that connection is an unfair labor practice under Section 8(a)(1) of the Act, which forbids an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7." Em- ployees having no bargaining representative and no estab- lished procedure for presenting their grievances may take this direct action to spotlight their complaint and obtain a remedy, and the walkout or other direct action grows out of a "labor dispute" within the plain meaning of Section 2(9) of the Act, which includes "any controversy concern- ing terms, tenure, or conditions of employment." Ibid The protection of the protected activity does not depend upon the merit or lack of merit of the grievance, for, as said in N.L.R.B. v. Guernsey-Muskingum Electric Cooperative, Inc., 285 F.2d 8, 12 (C.A. 6, 1960), "It is sufficient to con- stitute concert of action if from all the facts and circum- stances in the case a reasonable inference can be drawn that the men involved considered that they had a grievance and decided, among themselves, that they would take it up with management." See approval and adoption of this principle in Hugh H. Wilson Corporation v. N.L.R.B., 414 F,2d 1345, 1349 (C.A. 3, 1969), cert. denied 397 U.S. 935 (1970), holding a protest, by unrepresented employees, of diversion of employee contributions from a profit sharing plan, to be concerted protected activity; and see Polytech, Incorporated, 195 NLRB 695, 696 (1972), and First Nation- al Bank of Omaha v. N.L.R.B., 413 F.2d 921, 925 (C.A. 8, 1969), where work stoppages by unrepresented employees to protest overtime policies of the respective employers were each held to be protected concerted activity. In the circumstances developed in this case , the griev- ance over Respondent's repudiation of the bonus policy and of its promises for payment of the Christmas 1974 bonus, "was a proper subject for `concerted action"' by the employees, N.L.R.B. v. Guernsey-Muskingum Electric Cooperative, supra, 285 F.2d at 12. F. Section 8(a)(1) Finding Employees have a legitimate interest in acting concerted- ly to make known their views to management without being discharged for that interest, N.L.R.B. v. Washington Aluminum Co., supra, 370 U.S. at 12-13, 17; N.L.R.B. v. Phoenix Mutual Life Insurance Company, 167 F.2d 983, 988 (C.A. 7, 1948), cert. denied 335 U.S. 845. And, the protec- 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion accorded by the Act, "does not allow the employer to substitute `good' reasons for `real' reasons when the pur- pose of-the discharge is to retaliate for an employee's con- certed activities." Hugh H. Wilson Corporation v. N.L.R.B., supra, 414 F.2d at 1352. In my view the foregoing quote describes what Respon- dent has done here. It has discharged employee Guy and, as a pretext, invoked reasons that it would not have in- voked to discharge him but for his having engaged in the concerted activities in leading the employees in their abort- ed walkout and protest of Respondent's repudiation of its bonus policy and promises. The weakness of Respondent's alleged reasons for the discharge of employee Guy accentuates their pretextual na- ture. His alleged poor work performance in, 1974 is a dubi- ous paper record, put together after the discharge occurred when it appeared that the Board was investigating the dis- charge, and sharply contradicted by Foreman Harris, the supervisor most qualified to know about the employee's performance, from daily observance over a period of 6 years. There was no challenge of Harris' credibility, but the fact that, when testifying, he was-in the employment of Respondent, and put himself in the vulnerable position of testifying adversely to his employer and management supe- riors, lends added support to his credibility, Georgia Rug Mill, 131 NLRB 1304, 1305, footnote 2 (1961); Wirtz v. B.A.C. Steel Products, Inc., 312 F.2d 14, 16 (C.A. 4, 1963); Cavender Oldsmobile Company, 181 NLRB 148, 151 (1970). In Foreman Harris' opinion, Guy was a good die-cast ma- chine operator whose production compared favorably with the production of other operators in the shop and who was a well qualified, all-around performer in any job in the shop. Respondent's reference to employee Guy's injury record as a reason for discharge is also a weak reed and an ob- vious afterthought. While there were 10 incidents in 1973 and 1974 of minor burns, contusions, and fume inhalation, in total they cost Respondent no loss in production time (loss of production time was admittedly Respondent's ma- jor concern with injuries to a die-cast machine operator), as compared to some serious losses of time by other injured operators, and cost Respondent about $150 total for the 2 years in medical fees (if Respondent rather than its insurer paid). The last of these injuries occurred in August 1974, yet nothing was ever said on the subject of injuries to em- ployee Guy or to his foreman at any time during Guy's employment,-and was called to his attention for the first time when alleged as a cause for discharge at the hearing, several months after his discharge. The alleged reason was clearly an afterthought and,did not represent the true moti- vation of Respondent for the discharge, compare N.L.R.B., v. The Hertz Corporation, 449 F.2d 711,-713 (C.A. 5, 1971). Likewise, Respondent's management never talked to em- ployee Guy or his supervisor, Foreman Harris, about Guy's alleged poor production record. It was mentioned for the first time when Assistant Plant Manager Hainrihar told Guy he was discharged, on February 25, 1975. Respondent began to experience a drop in business in' December 1974 and started planning a reduction in force in January 1975 which it set in motion at the end of Janu- ary and completed at the end of February. While Respon- dent claimed it began its consideration of dropping em- ployee Guy around January 1, he was not among those in the discharges that began at the end of January. Respondent's decision to discharge Guy concededly did not come until a few days after the employee bonus protest of February 14, which in my view was also the more likely first time any consideration of dropping him arose. A clue here is the fact that, prior to the discharge of employee Guy, the views of Foreman Harris were sought by manage- ment on first-shift layoffs or discharges; but he was not asked about, or informed beforehand, concerning the dis- charge of employee Guy. On the morning of February 14, 1975, after the promise of payment of the bonus was repudiated by President Skrlj, employees Guy and Melvin Thomas, both die-cast ma- chine operators on the first shift, initiated and led the tem- porary shutdown of the machines by all of the first-shift employees and their planned walkout, that was to follow. Vice President Rollin Graham was aware of the leadership of Guy and Thomas because he asked them to persuade the employees not to walk out but to meet with manage- ment, and Guy and, Thomas complied. At the employee meeting with management that- followed, employee Guy openly criticized Respondent for its breach of promise to pay the bonus and expressed skepticism of the new contin- gent promise to pay given-by Vice President Graham. Em- ployee Thomas was silent. Foreman Harris sought to ob- tain conciliatory assurances- from management to head off an open breach, and a walkout. The walkout wasf,averted apparently as a result - of Vice President Graham's re- sponses. - Ten days later employee Guy was fired and employee Thomas was demoted from die-cast machine operator to helper, pulling fingers.9 In its reduction of force, though Respondent had adopted- the policy of first discharging helpers (the less skilled employees) and- retaining its opera- tors (the more skilled employees) in some cases on tempo- rary demotions to jobs, as helpers until they could be used as operators again, it refused to consider reassigning and retaining employee Guy in any one of the several types of helper jobs on any shift,, notwithstanding his plea_ to be reassigned rather than discharged, and notwithstanding the knowledge of management, including those who took re- sponsibility for his discharger that Guy was one of the most highly qualified employees in the shop for any of the vari- ous jobs in the shop.10 Guy was the only machine-operator in the plant who was discharged rather than reassigned to other work. - As Assistant Plant Manager, Hainrihar explained, Re- spondent was concerned with employee Guy's-possible agi- tation of his fellow employees if he was retained. This feel- ing by Respondent was obviously , derived from Respondent's February 14 experience with Guy and his 9 While the demotion was temporary, Thomas was not restored to his former job as first-shift operator but to operator on the third,shift when the demotion was lifted 10 Moreover, it was conceded by Respondent that employee Guy was more qualified as an operator or helper than his first-shift colleague Hinton, who was, at the time of Guy's discharge, temporarily reduced to a helper's job -- - _ SKRL DIE CASTING fellow employees. There was no other apparent history." This discriminatory departure by Respondent from its reduction in force policy as explained -by Assistant Plant Manager Hainrihar was a clear expression of the true moti- vation behind the discharge of employee Guy,, and helps demonstrate that the other assigned reasons-poor work record and injury record-were not the real reasons for the discharge. Nonetheless, even if Guy's discharge was moti- vated only in part by his engagement in protected concert- ed activities, the discharge was illegal notwithstanding there may have existed justifiable cause for firing him. Wonder State Mfg. Co. v. N.L.R.B., 331 F.2d 737, 738 (C.A. 6, 1964); N.L.R.B v. Solo Cup Company, 237 F.2d 521, 525 (C.A. 8, 1956). Respondent, by its discharge of employee Guy because he engaged in protected concerted activities, violated Sec- tion 8(a)(1) of the Act. CONCLUSIONS OF LAW By discriminatorily discharging employee Rufus Guy on February 25, 1975, because he engaged in protected con- certed activities with his fellow employees in protesting Respondent's repudiation of its bonus policy and of its promises to pay the Christmas 1974 bonus, Respondent committed an unfair labor practice within the meaning of Section 8(a)(1) of the Act. The unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act.12 u Of course, a discharge motivated by the employer's belief or suspicion that an employee was engaging in protected concerted activities also vio- lates the Act N.L R B. v. Clinton Packing Co., Inc., 468 F.2d 953, 955 (C.A. 8, 1972). The fact that there may have been other known or suspected activists who were not discharged is no defense to the violation of the Act in employee Guy's case. Rust Engineering Company v. N.L.R.B., 445 F.2d 172, 174 (C.A 6, 1971). 12 Respondent complains in his brief that there was no evidence produced or received in the record of the case that Respondent 's action in discharging employee Guy "in any way adversely affected commerce as alleged in the Complaint." The complaint followed the statutory language, after alleging that Respondent's conduct in discharging Guy was an unfair labor practice with- in the meaning of Sec. 8(a)(1) of the Act (now established), by stating, among other things, that Respondent's (unlawful) conduct in connection with its operations in commerce had a close and substantial relation to commerce among the States and tended to lead to labor disputes burdening and obstructing commerce and the free flow of commerce , and constituted an unfair labor practice affecting commerce within the meaning of Sec. 8(axl) and Sec. 2(6) and (7) of the Act. Respondent misunderstands the burden on the General Counsel in prov- ing, and on the Board in determining and remedying , an unfair labor prac- tice. As pointed out in N L R B. v. Reliance Fuel Oil Corporation, 371 U.S. 224, 226 (1963), the Act establishes a framework within which the Board is to determine whether proscribed practices would in particular situations adversely affect commerce when judged by the full reach of the constitu- tional power of Congress. "Whether or not practices may be deemed by Congress to affect interstate commerce is not to be determined by confining judgment to the quantitative effect of the activities immediately before the Board. Appropriate for judgment is the fact that the immediate situation is representative of many others throughout the country, the total incidence of which if left unchecked may well become far-reaching in its harm to com- merce " Ibid There was therefore no obligation on counsel for the General Counsel to provide evidence of the individual adverse effect of employee Guy's dis- charge on interstate commerce, and the finding herein that Respondent's unfair labor practice affects commerce within the meaning of the Act is adequately supported by the relationship of this case to the many other unfair labor practice cases throughout the country. THE REMEDY 91 It will be recommended that Respondent: - 1. Cease and desist from its unfair labor practice, and from in any like manner infringing upon the rights guaran- teed by Section 7 of the Act. 2. Offer to reinstate employee Rufus Guy with backpay from the time of discharge, backpay to be computed on a quarterly basis as set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), approved in N.L.R.B. v. Seven-Up Bottling Co., 344 U.S. 344 (1953), with interest at 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), approved in The Philip Carey Manufac- turing Company, Miami Cabinet Division v. N.L.R.B., 331 F.2d 720 (C.A. 6, 1964), cert. denied 379 U.S. 888. 3. Post the notices provided for herein. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 13 Respondent, Skrl Die Casting, Inc., Eastlake, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharge, layoff, or other discipline of employees who in concert with fellow employees protest Respondent's repudiation of its policy, or of its breach of promise, to pay bonuses, or who engage in other protected concerted activ- ity 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 neces- sary to effectuate the policies of the Act: (a) Offer to employee Rufus Guy immediate and full reinstatement to his former job or, if the job no longer exists, to a substantially equivalent position, without preju- dice 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 earn- ings incurred by him as a result of his discharge on Febru- ary 25, 1975. (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to ascertain the backpay due under the terms of this recommended Order. (c) Post in its plant at Eastlake, Ohio, copies of the at- tached notice marked "Appendix." 14 Copies of said notice 13 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. 14 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 Continued 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on forms provided by the Regional Director for Region 8, secutive days thereafter, in conspicuous places, including after being duly signed by Respondent's authorized repre- all places where notices to employees are customarily post- sentative, shall be posted by the Respondent immediately ed. Reasonable steps shall be taken by the Respondent to upon receipt thereof, and be maintained by it for 60 con- insure that said notices are not altered, defaced, or covered by any other material. to a Judgment of the United States Court of Appeals Enforcing an Order of (d) Notify the Regional Director for Region 8, in writ- the National Labor Relations Board." ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith.