Columbia Corrugated Container Corp.

COLUMBIA CORRUGATED CONTAINER CORP. 147 Columbia Corrugated Container Corp . and John W. Stallworth. Case 29-CA-4358 September 27, 1976 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On April 26, 1976, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions 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 of the Administrative Law Judge and to adopt his recommended Order. The credited testimony reveals that employee Stallworth refused to sign a waiver of certain work- sharing rights under the collective-bargaining agree- ment. He was therefore scheduled to work the week of January 6, 1975, and was scheduled to be laid off for an indefinite period after that week. Stallworth did not report to work on January 6, and, on January 8, Respondent President Serwitz sent him a letter stating that, because Stallworth did not report to work or notify the Respondent, Serwitz assumed he had quit. In March, Respondent's business had improved and, at the request of Respondent Foreman Mc- Cloud, Stallworth was called back to work. When Stallworth -reported for work on March 3 or 4, 1975, Serwitz told him that, because Stallworth had given Serwitz a hard time with regard to the refusal to sign the waiver of the work-sharing provision of the col- lective-bargaining, agreement, he no longer had a job with Respondent,. The Administrative Law Judge found that the ter- mination of Stallw/orth on Janaury 8 and the failure to reemploy him in early March constituted unlawful discrimination in' violation of Section 8(a)(1) and (3) of the Act. Although we agree with his ultimate con- clusions, we believe that the Administrative Law Judge placed undue emphasis on the fact that Ser- witz personally signed the January.8 letter, and that. Stallworth had,_ never been reprimanded or disci- plined during his employment. In the absence of any evidence of disparate treatment, these facts are of little or no significance. However, it is clear that, although Stallworth did violate the plant rules by not notifying Respondent of his absence, the discipline for such violation is dis- cretionary. Serwitz' statement in early March that Stallworth was no longer working for Respondent because of the protected activity of refusing to sign the waiver demonstrates that Stallworth's failure to report for work on January 6 was not the true reason for his discharge, but was utilized as a pretext to al- low Serwitz to discharge Stallworth because he had given Serwitz a "hard time." For these reasons, we agree with the Administrative Law Judge that Re- spondent violated Section 8(a)(1) and (3) of the Act when it discharged Stallworth on January 8, 1975, and when it refused to reemploy him on March 3 or 4, 1975. 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 and hereby orders that the Respondent, Columbia Corrugated Container Corp., Syosset, New York, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. i Member Penello agrees with the Administrative Law Judge's rationale for denying Respondent's motion for deferral to arbitration Members Fan- ning and Jenkins would not in any event defer to arbitration in this proceed- ing for the reasons set forth in their dissents in Collyer Insulated Wire, A Gulf and Western Systems Co, 192 NLRB 837 (1971), and subsequent cases DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Administrative Law Judge: This case was heard on February 2, 3, and 4, 1976, upon a com- plaint issued by the Regional Director for Region 29, of the National Labor Relations Board on September 12, 1975, which complaint was based on a charge filed on May 16, 1975, by John W. Stallworth, an individual, herein called Stallworth or the Charging Party. The complaint alleges, in substance, that the Respondent, Columbia Corrugated Container Corp., herein called the Respondent or the Company, violated and is violating Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, herein called the Act, by discnminatonly discharging Stallworth and refusing to reinstate him to his former or substantially equivalent position because Stallworth refused to sign a waiver-of certain provisions of the collective-bargaining agreement between the Respondent and Folding Box, Cor- rugated Box and Display Workers Local No. 381, United 226 NLRB No. 31 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Paper Workers International Union, AFL-CIO, herein called the Union. The Respondent, in its duly served answer and amended answer, admits certain allegations of the complaint, but denies the commission of any unfair labor practices and affirmatively pleads that the Board should defer the mat- ters with which this case is involved to arbitration. At the hearing herein, the parties were given full oppor- tunity to be heard, to present evidence, and make oral ar- gument. After the close of the hearing herein, the parties submitted briefs. Upon the entire record herein,' and upon my observa- tion of each witness appearing before me, and upon due consideration given to the contentions and arguments and positions of the parties in their respective briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a New York corporation, maintains its principal office and place of business in the village of Syos- set, county of Nassau, State of New York, where it is en- gaged in the manufacture, sale, and distribution of corru- gated shipping containers, displays, and related products. During the year immediately preceding the issuance of the complaint herein,, a representative period, Respondent manufactured, sold, and distributed at its Syosset, New York, plant products of a value in excess of $50,000, of which products valued in- excess of $50,000 were shipped from said plant directly to customers in States of the Unit- ed States other than the State of New York. It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Folding Box, Corrugated Box and Display Workers Lo- cal No. 381, United Paper Workers International Union, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts 1. The contract provisions involved, the Company 's rules, and the layoff Stallworth originally began working for the Respondent in 1965, but left to go into military service. He returned to Respondent's employ sometime thereafter, but subsequent- ly quit. On January 10, 1972, Stallworth returned to Respondent's employ. Thus, his seniority and latest period of employment would be computed from that date; The Respondent, as noted above, is in the business of manufac- turing corrugated boxes and packaging. Among the several ' There being no opposition, the Respondent's motion to correct the tran- script is granted in all respects. departments in Respondent's plant is the Printing Depart- ment in which Stallworth worked in the classification of headsetter. During Stallworth's employment with the Re- spondent he was a member of, and represented by, the Union. The Respondent and the Union have had a collective- bargaining relationship for a period of some 20 years. Their most recent collective-bargaining agreement, effective Sep- tember 1, 1974, to September 15, 1977, contains the follow- ing provision in article VII: When it becomes necessary to lay-off any employee due to slack of business, the Company shall confer with the Shop Delegate in order to attempt to share the available working time as equally as practicable among the employees in the same job classification working for the Company at least 1 year prior to any such layoff. Should a layoff due to slack of business continue beyond 30 days, then permanent layoffs shall be based on seniority. No permanent layoff, or layoff of a week or more shall be made without 3 working days' prior notice to the affected employee, if the af- fected employee, has had one year or more of service. [Emphasis supplied.] Additionally, the Respondent published and maintained and republished for a number of years, and distributed to each employee, its rules and regulations, among which are listed possible causes for discharge, a violation of any of which may result in immediate discharge. Among these causes for discharge is No. 21, "Absence for more than a 48-hour period or longer without notifying the Company." In addition to all of the foregoing, it has been customary for the Respondent to have two plant shutdowns each year, one during the summer period and the other normally at the end of the year during the Christmas holiday season. In accordance with this custom, in October 1974 Respondent distributed to its employees a notice that the plant would be closed from December 22, 1974, through January 5, 1975, for the yearend shutdown. Shortly after the notice to the employees concerning the yearend shutdown was dis- tributed, Charles Serwitz, president of the Respondent, re- alized that it would be necessary to "go into a layoff pro- gram." Thereafter, the Respondent began to lay off individuals on approximately November 15. Every employ- ee laid off in November had less than 1 year's seniority. However, business continued to fall off and the Respon- dent's officials realized that they would have to go further than laying off merely the 1-year people and would have to make additional layoffs. In order to conform to the above- quoted section of the collective -bargaining agreement re- garding the sharing of work, the Respondent realized that it would have to go into a work-sharing program for at least 30 days. In order to put this program into effect, the Respondent determined the number of, individuals who would have to be placed on layoff status in order to reduce the staff to the number that would be needed to operate the business as it was at that point. They determined to fix the number to be laid off at approximately 50 or so ofthe least senior people and retain approximately 25 to 29 individuals in normal work status. Accordingly, the Respondent divid- ed the approximately 50 least senior people into two COLUMBIA CORRUGATED CONTAINER CORP. - 149 groups, according to seniority. These were the individuals who, were going to share the work for the next 30 days. As noted, the people to be placed in the work-sharing program were to be divided into two groups, the 25 of whom were the least senior of the 50, and in which less senior group Stallworth was included. It was determined that under the work-sharing plan Stallworth's group would not work the week of December 16, 1974, and would have been scheduled to work the week of December 23, but, nevertheless, would not work due to the end of the year shutdown and would be rescheduled to commence work on January 6, 1975. When, how, or if this information was imparted to any of the employees in the group, which in- cluded Stallworth, is not revealed by the record. In any event, a number of the employees evidently learned of the planned work-sharing and layoff programs. As a result, the night shop steward, R. L. Ridgeway, spoke to President Serwitz and asked if the men in the least senior group, the group in which Stallworth was included, could be laid off on December 13 without returning on January 6 for a period of approximately only I week and then going on indefinite layoff, so that they could immediately apply for unemployment after December 13. Thus, they would benefit from their unemployment insurance and would re- alize more money thereby than if they were to be laid off, rehired for 1 week, and then be laid off again due to the lack of business. Upon receiving this request, Serwitz stated that he would be agreeable to such a plan- so long as the Union would agree to it, inasmuch as such a plan would directly contro- vert the-work sharing section of the collective-bargaining agreement heretofore recited. The following evening Ridgeway reported back to Serwitz that the Union had no objection if the men had no objection. Pursuant to the foregoing information, Serwitz called the Union and spoke to a Mr. Cianciulli, who verified what Ridgeway had told Serwitz. Cianciulli told Serwitz that the men were the only ones who could waive that part of the contract. Upon the suggestion of Cianciulli, therefore, Ser- witz distributed a waiver, herein after set forth, in order to protect both the Company and the Union. The waivers were, given to Ridgeway for distribution. They read as fol- lows: December 11, 1974 To: Columbia Corrugated Container Corporation Dear Sirs: I have been advised that I am being laid off after work on Friday, December 13, 1974. Please note that I wish to waive my rights as stated in Article VII of the labor agreement between Columbia Corrugated Container Corporation and the Folding 'Box, Corrugated Box and Display Workers Local-381. Rather than share the work for the first 30 days, I am willing to remain on layoff until work is available and 'I can return. This waiver form was given to Stallworth on or about December I1 by his supervisor, Foreman McCloud. Mc- Cloud requested Stallworth to read the waiver, sign it, and return it to him. Later the same day, or possibly the follow- ing day, McCloud returned to Stallworth and asked the latter for the signed waiver. Stallworth informed McCloud that he was not going to sign the waiver. This information was imparted to President Serwitz who then approached Stallworth at the latter's work-station and asked.Stallworth why the latter refused to sign the waiver. Stallworth re- sponded that he could not see any reason -to sign for a layoff. Serwitz then explained to Stallworth that it was to the latter's advantage to sign the waiver and accept a layoff by reason of the increased monetary return that this action would give to Stallworth. Nevertheless, Stallworth, who was understandably upset at the idea of a layoff by reason of the fact that at that time his wife was pregnant, re- mained adamant and refused to sign. The conversation then turned to seniority, Stallworth maintaining that he was not the least senior man in his department. At one point during the conversation, Serwitz told Stallworth that if Stallworth did not sign the waiver Serwitz did not know what to do with him inasmuch as every other employee in Stallworth's category had signed the waiver in order to re- ceive the benefits of unemployment compensation.2 Final- ly, Serwitz told Stallworth that he would be laid off but could return on the original return date of January 6? On December 13, 1974, despite his protestations, Stall- worth was given a layoff slip along with his pay for that week and the prior week along with a week's vacation pay. The so-called layoff slip in no way indicated when Stall- worth was to return to work, but was merely an identifica- tion paper-to be used in applying for unemployment com- pensation. - - It should be noted, that nowhere does the Respondent contend, nor is there any testimony or other evidence in the record to show, that Stallworth was in any way a trou- blesome or incompetent employee, nor is there any evi- dence to the effect that Stallworth had ever been repri- manded for disobedience of any of the Respondent's rules or regulations or for producing faulty product. Also, of some importance is testimony by Stallworth to the effect that one of the reasons he refused to sign the layoff slip was that he had more seniority than other indi- viduals who he claimed were not being laid off in his par- ticular department. However, even assuming that there were individuals who had less seniority in the same depart- ment than did Stallworth at the time of the layoff, there were no individuals laid off who had less seniority then did Stallworth in Stallworth's job classification. In connection therewith, the collective-bargaining agreement between the Respondent and the Union which provided for layoff and 2 Up to this point, all of the foregoing facts are more or less not in dispute. 3 This verbal instruction to return on January 6 is denied by Stallworth in his testimony; he claims that no, such instruction was ever given to him. Counsel for the General Counsel contends that Stallworth'sdenial that he was instructed to return on January 6 is supported by the testimony of employee Fred Nelson, who was standing approximately 20 feet away dur- ing the conversation However, Nelson, in testifying, was asked whether he remembered any more of the conversation after testifying that he did not hear any instruction to Stallworth to return on January 6. Nelson answered that there was more to the conversation but he did not recall it. For this reason, and other reasons hereinafter set forth, I do -not credit Stallworth in this respect and do credit Serwitz to the effect that he did verbally instruct Stallworth to return to work for 1 week on January 6, 1975 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work-sharing stated, in effect, that seniority in layoff shall be observed by department and that, in the event of busi- ness slack, the work-sharing, shall be made as equally as practicable among employees in the--same job classifica- tion. In connection therewith, at the hearing it was stipulat- ed that Stallworth's most 'recent hire was on-January 10, 1972, that his classification was a headsetter, and that he was laid off on December 13, 1974. Further stipulated were the hiring dates and classifications of the other individuals in the department at the time of Stallworth's layoff., This stipulated matter reveals that no one in the department lower in seniority than Stallworth, with Stallworth's job classification, was retained. 2. Stallworth's discharge and Respondent's failure to recall or reinstate him January 6, 1975, came and went and Stallworth did not report for work. Finally, by letter dated January 9, 1974, Serwitz,'the Respondent's president, addressed a letter to Stallworth, which Stallworth duly received, stating as fol- lows: Following your layoff, you were to return to work on January 6, 197-5. You did not return, nor have we heard from you for a period exceeding 72 hours. Com- pany rules call for notification within 72 hours. We therefore assume that you have quit your job. This letter was personally signed by Serwitz . It refers to the rule heretofore set forth which stated that absence of more than 48 hours or longer without notifying the Company may result in immediate discharge. Upon receipt of the letter, Stallworth proceeded to the Respondent's premises in order to speak to Serwitz. Ac- cording to Stallworth, when he arrived at the Respondent's premises and asked to speak to Serwitz , he was told that Serwitz was not present, that Serwitz was in Florida. How- ever, Serwitz testified that he did speak to Stallworth at that time, which was but a few days after the date- Stall- worth received the letter, and explained to Stallworth that the reason for the letter was that Serwitz had told Stall- worth in December to report for work on January 6 inas- much as Stallworth would not sign the waiver offered to him .4 4 Stallworth's testimony with regard to the date and the content of the conversation with Serwitz was quite confused On direct examination he testified, as noted above , that he was told that Serwitz was in Florida How- ever, on cross-examination Stallworth stated that the first time he spoke to Serwitz ' after the 'receipt of the notice that he was regarded as a quit was in February Upon being further questioned, however, Stallworth admitted that when he received the letter he did see Serwitz and spoke to him Final- ly, counsel for Respondent presented Stallworth with the latter's hearing investigatory affidavit which stated that Stallworth had spoken to Serwitz immediately after he received the January 8 letter, in fact, the day after he received, the January 8 letter. Additionally, the same affidavit, shown to Stallworth upon his cross-examination, revealed that a statement wherein he had told the Board agent that Serwitz never told him to report back to work on January 6 was stricken Stallworth maintained that he did not tell the Board agent to strike that portion The fact that this statement was stricken would indicate that Stallworth was told to report on January 6 and this, in addition to the other factors heretofore mentioned , is -the reason I have heretofore credited Serwitz' testimony to the effect that he instructed Stall- worth to return to work on January 6 , inasmuch as Stallworth would not sign the proffered waiver Additionally, shortly after Stallworth received the letter informing him that the Respondent assumed that he had quit, Stallworth spoke to John, Danetra, the union vice president. Danetra testified that Stallworth admitted to -him that Serwitzhad told Stallworth to report back to work on January 6. Additionally, Stallworth admitted on cross- examination that he told the union official that he should have received a written notice to return to work and not a mere verbal notice. This would be consistent with the con- clusion, that Stallworth must have received a verbal notice from Serwitz to return to work on January 6. Stallworth also adnutted_thathe was informed by a union official (it is not clear whether this was Danetra or another official) that the Respondent was acting within its contract rights to consider Stallworth a quit and that, presumably, Stallworth had no recourse insofar as the Union was concerned. On approximately the first of March, Respondent' s busi- ness had regained sufficient momentum to warrant recall- ing a number of the individuals 'who had been laid off either in December or after the week of January 6. At that time, McCloud, Stallworth's foreman, having been in- formed that Stallworth was unemployed, informed one of Stallworth's fellow employees to inform Stallworth to re- port for work at the Respondent's plant. This information was.given' to Stallworth, who, on the next workday, report- ed to McCloud for work. However,, Stallworth's pun- chcard 5 was not in place and Stallworth asked McCloud where the card was. McCloud then told Stallworth toy wait. Finally, McCloud then evidently spoke to Serwitz and re- turned to the cafeteria where'Stallworth'was waiting. He informed Stallworth that he, McCloud, had- made ,a mis- take in calling Stallworth back. According to Stallworth, McCloud,then toldStallworth, upon Stallworth asking Mc- Cloud how the mistake had been made, that Stallworth should speak to Serwitz, who told him that because Stall- worth had given'Serwitz a hard, time with regard, to the refusal to sign the waiver in December, Stallworth was no longer working for the Company.' ' B. Discussion and Concluding Findings From the contentions made at the hearing and in the briefs of counsel for the General Counsel and for the Re- spondent, the two basic issues in the case are (a) the usual one of credibility and (b) in this instance, whether Stallworth's refusal to sign the, waiver 'in December consti- 5 Punchcard evidently meant timecard 6 Although I" have not in other respects credited Stallworth because I found his testimony to be somewhat contradictory and confusing, I credit his testimony in this respect and do not credit Serwitz' denial that he told Stallworth that the latter had given him a hard time and that, therefore, as far as Serwitz was concerned, Stallworth was no longer working. for the Respondent. Serwitz, initially, on his direct examination was asked whether, after his conversation with Stallworth in January 1975, he had another con- versation with Stallworth Serwitz answered that it must have been March 3 or 4, which would be the 'date that Stallworth' came to report to work and was told by McCloud that the call had been a mistake Then, after further questioning as to whether he had had a conversation with Stallworth at that time in March, Serwitz denied that he had any conversation with Stallworth at that time Accordingly, I credit Stallworth in this respect This is based on the evidentary rule that it is not uncommon "to believe some and not all of a witness' testimony." N L R B v Universal Camera Corp, 179 F 2d 749, 754 (CA 2). - COLUMBIA CORRUGATED CONTAINER CORP. 151 tuted protected union or concerted activity , and whether he was separated from employment because of such activi- ty. With regard to credibility, as noted above, I have cred- ited Stallworth only to the extent of the conversation he had with Serwitz on March 3 or 4, 1975, during which Serwitz told Stallworth that there was no work for him because Stallworth had given Serwitz a "hard time" by re- fusing to sign the waiver of the work -sharing provision of the collective-bargaining agreement. Additionally, I have also concluded that Stallworth was informed at the time of his layoff that he was to return to work for 1 week begin- ning January 6. This is supported to an extent by the stipu- lation entered into between counsel and received in evi- dence that a more senior headsetter, in the department in which Stallworth worked, was laid off at the end of the week of Janaury 6. This supports Serwitz' testimony to the effect that he told Stallworth , when the latter refused to sign the waiver, that Stallworth would come back on Jan- uary 6 and work for 1 week and then be laid off. Finally, regarding the last conversation between Stall- worth and Serwitz on either March 3 or 4 , there remain certain inconsistencies. McCloud, the foreman, testified that he informed Stallworth that the latter could return as a new employee because there was work available.? Howev- er, Serwitz denied that this was so and testified that there was no work for Stallworth . Accordingly, logic dictates that Stallworth was truthful in stating that Serwitz in- formed him that he could not work for the Respondent because of his refusal to sign the waiver. In sum, I conclude that the original layoff of Stallworth on December 13, 1974, was lawful and necessitated by business and economic problems. I further conclude that Serwitz adhered to the Respondent's rules and regulations when, on January 8, 1975, he informed Stallworth that the latter was regarded as having quit by reason of his failure to report to work on Janaury 6 and his further failure for a period of 72 hours to inform the Respondent as to the reasons therefor. I- further find and conclude that Stall- worth was refused employment or, rehire or reinstatement or recall, as the case may be, on March 3 and 4 and was told by Serwitz that the reason for the refusal was Stallwort'h's initial adamancy with regard to the refusal to sign the waiver in December: There remains a question , however, as to whether Stallworth's failure to report to work on January 6 was the true reason for Serwitz' letter of January 8 or whether Ser- witz seized upon the failure to report as an opportunity to rid the Respondent of an individual who had , indeed, given Serwitz a difficult time . I have noted, above, that there is completely lacking any record testimony or evidence that, prior to the refusal by Stallworth to sign the waiver, Stall- worth had ever been at any time a troublesome or an inef- ficient employee or one who had,received any reprimand or any form of discipline whatsoever. Moreover, I note that the letter of Janaury 8 informing Stallworth that he was considered a quit was signed not by someone lower in the Respondent's hierarchy but, rather, by Serwitz himself. If this was merely a routine application of Respondent's rules, always uniformly applied, in view of the size of the Respondent's plant, it would seem to be unusual, indeed, for the president of the firm to take the time , the trouble, and effort to write to one of the Respondent 's many em- ployees that the employee was considered having quit. Ad- ditionally, I note the very wording of Respondent's rules and regulations, which sets forth the possible causes for discharge, states that violations may lead to discharge. This would indicate that the application of the rule was discre- tionary. I note also, and the record establishes, that Stall- worth was the only employee who was scheduled to be laid off and was requested to sign the waiver who refused to do so. Accordingly, by reason of all of the foregoing, I find and conclude that despite the fact that Stallworth did, in- deed, violate a published rule, such violation was utilized by Serwitz as a means of retaliation against Stallworth for his refusal to sign the waiver. Although counsel for the Respondent argues that this could not really be and that the Respondent, principally Serwitz, could not have been annoyed or frustrated with Stallworth's behavior in refusing to sign the waiver be- cause, in fact, the waiver was for the benefit of the employ- ees and not for the Respondent. However, there is no ques- tion that Respondent at, that time was encountering economic problems and was, indeed , in position to be grateful to any employee who would voluntarily cease his employment to the extent of accepting an indefinite layoff. Further, the remark to Stallworth by Serwitz in March to the effect that Stallworth could have no work because he had given Serwitz a hard time solidifies and bolsters the foregoing conclusions . Accordingly, I find and conclude that beginning January 8, 1975, the Respondent discharged Stallworth and thereafter has refused consistently to rein- state him to his former or equivalent position by reason of Stallworth's insistence upon maintaining and enforcing his contractual rights. I come now to the question of whether Stallworth's re- fusal to sign the waiver of the work-sharing provision of the collective-bargaining agreement between the Respon- dent and the Union constituted protected concerted or union activity . Before discussing and making conclusions in this regard, however, it is necessary to dispose of the Respondent's contention that this entire matter should be deferred, under the Collyer doctrine,8 to arbitration, inas- much as it involves contract interpretation and also be- cause an arbitrators award could-resolve the dispute in- volved. I find no merit in this contention for the reason that undisputed on the record is testimony to the effect that Stallworth was told by an official of the Union that the Respondent was correct in considering that he had quit. Thus, the Union has already decided, in effect, that Stallworth could not seek redress because he was wrong in assuming that he was incorrectly regarded as having quit. I find for this reason alone that arbitration in this particular instance, pursuant to the Collyer rule, would not be in con- formity with Board deferral practice .9 - 7 I credit McCloud in this respect. McCloud did not learn that Stallworth 8 Collyer Insulated Wire, 192 NLRB 837 (1971). had been regarded as a quit by Serwitz on January 8 until it was discovered Although there is no evidence of union hositlity toward Stallworth, in on March 3 or 4 that there was no timecard for Stallworth . Continued 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We come now to the final question of whether Stall- worth engaged in protected union or concerted -activity. General Counsel contends that a single individual insisting upon an employer's compliance with collective-bargaining provisions is, indeed, a protected concerted and union ac- tivity. Respondent, on the other hand, contends, in effect, that the case here presented is not one where an'employee insisted upon an employer's, strict compliance with con- tractual provisions for the benefit of himself and all other employees. Rather, Respondent argues that here the fact that all the other employees situated the same as Stallworth consented to waive the contractual rights results in the nec- essary conclusion that Stallworth was acting only on his own behalf and, therefore, he was acting neither in concert with other employees nor enforcing the Union's contract with the Respondent for his benefit and the benefit of the other employees involved. In support of its argument, Re- spondent discusses a number of the cases cited by the Gen- eral Counsel.1° Respondent seeks to show that in each of the cases relied on by counsel for the General Counsel there was activity specifically by either more than one em- ployee or that the subject matter the single employee was complaining about affected the rights of all other employ- ees in the unit. Counsel for Respondent argues that in the case at bar the contractual provision Stallworth was seek- ing to enforce by refusing to waive did not affect the rights of all other employees in the unit because the other em- ployees had waived that provision. I find the distinction made by Respondent's counsel to be a distinction without a difference. It might well be that the other employees did waive and that Serwitz did inform Stallworth to that effect. However, in one case, at least, the Board held contrary to finding of the Trial Examiner that an employee attempting to enforce the provisions of a col- lective-bargaining agreement, even acting alone and for himself alone, engaged in concerted activities in seeking to obtain what he viewed as the benefits of a collective-bar- gaining agreement during the period preceding the employ- ees discharge." Furthermore, it should be noted that when Serwitz approached the Union to ask about whether em- ployees could be laid off without sharing work, the Union refused to give him complete authority and refused to waive on behalf of the employees, but insisted that Stall- worth receive individual waivers. Accordingly, there was no concession by the Union of waiver and, therefore, Stallworth's insistence upon what he considered to` be his contractual right was, indeed, insistence not only on his behalf, but on behalf of all of the employees covered by the collective-bargaining agreement. And this is true ' even though, as testified by Serwitz, Serwitz explained that the waiver was for one time only and was not, in effect, an alteration in the terms of the collective-bargamingj agree- ment: Accordingly, I find that the cases cited by counsel for the General Counsel are dispositive of the question here view of Danetra's testimony, it would seem the Union could not, in good faith, represent Stallworth before an arbitrator Additionally, there is no record showing that Respondent waives the time limitation provisions of the contractual grievance and arbitration procedures. 10 N Y Trap Rock Corp, 148 NLRB 374 (1964); Modern Motor Express, Inc, 129 NLRB 1433 (1961) 11 See EEE Co, Inc, 171 NLRB 982, In. 1 involved. I, therefore, find, and conclude that although Stallworth may have caused Serwltz some problem, never- theless, Stallworth was engaged in protected concerted and union activity when he insisted upon the employer's strict compliance with'the work-sharing provision of the collec- tive-bargaining agreement. It follows, therefore, that Stallworth's discharge and the continuous refusal on the part of the Respondent to reinstate him, constituted unlaw- ful discrimination in violation of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found, as set forth above, that the Respondent has engaged in certain unfair labor practices, it will be rec- ommended that it cease and desist therefrom and take cer- tain affirmative action set forth below designed to effectu- ate the policies of the Act. It having been found that the Respondent discriminato- rily discharged John W. Stallworth, I shall recommend that the Respondent offer Stallworth immediate and full rein- statement to his former or substantially equivalent posi- tion, ,without prejudice to his seniority or other rights and privileges. In addition, I shall recommend that the Respon- dent make Stallworth whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he would normally have earned from the date of his discharge, less net earnings during said period. Backpay shall be computed, with interest on a quarterly basis, in the manner described by the Board in F. W. Woolworth Com- pany, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). On the basis of the foregoing findings of fact and upon the entire record I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 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 discharging and then refusing'to reinstate John W. Stallworth because' he refused to sign a waiver of a provi- sion of the collective-bargaining agreement between the Respondent and the Union, the Respondent has engaged in unlawful activity within the meaning of Section 8(a)(3) and (1) of the Act. COLUMBIA CORRUGATED CONTAINER CORP. 153 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(b) of the Act, I hereby issue the following recommended: sonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any material. (d) Notify the Regional Director for Region 29, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. ORDER 12 Respondent, Columbia Corrugated Container Corp., Syosset, New York, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discouraging membership in Folding Box, Corrugat- ed Box and Display Workers Local No. 381, United Paper Workers International Union, AFL-CIO, or any other la- bor organization, by denying any employee work or dis- charging any employee because such employee insists upon the Respondent's strict compliance with the collective-bar- gaining agreement between the Respondent and the afore- said labor organization, or discriminating against any em- ployees in any manner in regard to their hire and tenure of employment or any term or condition of employment for like reason. (b) In any other manner interfering with , restraining, or coercing its employees in the exercise of their rights to form, join, or assist, or be represented by the aforesaid labor organization, or any other labor organization , to bar- gain collectively through representatives of their own choosing or to engage in other concerted activity for the purposes of collective-bargaining or other mutual aid or protection, or to refrain from any and all such activities except as provided in Section _8(a)(3) of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer immediate reinstatement to John W. Stall- worth to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privi- leges he might enjoy, and make him whole for any loss of earnings he may have suffered by reasons of the discrimi- nation against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant at Syosset, New York, copies of the attached notice marked "Appendix." 13 Copies of said no- tice on forms provided by the Regional Director for Re- gion 29 of the National Labor Relations Board , after being duly signed by Respondent's representative, shall be post- ed by Respondent immediately upon receipt thereof and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to , employees are customarily posted. Rea- 12 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. 13 In the event that 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT lay off, discharge, or in any other man- ner terminate the employment of any of our employ- ees because such employees insist upon our full com- pliance with the terms and conditions of the collective-bargaining agreement between our Compa- ny and Folding Box, Corrugated Box and Display Workers Local Union No. 381, United Paper Workers Internationl Union, AFL-CIO, or any other labor or- ganization representing our employees, nor will we discriminate in any other manner against any of our employees for engaging in any protected union or con- certed activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to form, join, or assist or be represented by Folding Box, 'Corrugated Box and Display Workers Local No. 381, United Paper Workers International Union, AFL-CIO, or any other labor organization representing our employees, to bargain collectively through representatives of their own choosing, or to engage in other concerted or protected activity for the purpose of collective bargaining or any other mutual aid or protection or to refrain from any or all such activities. WE HAVE unlawfully discharged and refused to rein- state John W. Stallworth for insisting upon full com- pliance with the provision of the collective-bargaining agreement with the Union and WE WILL reinstate John W. Stallworth with backpay for any loss he may have suffered by reason of our unlawful discharge of him. COLUMBIA CORRUGATED CONTAINER CORP.