ARO, Inc.

ARO, INC. ARO, Inc. and Mary Marvleen Williams . Case 26- CA-5876 December 13, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On July 19, 1976, Administrative Law Judge Russell M. King, Jr., issued the attached-Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the, record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge recommended dis- missal of the allegation that Respondent ARO, Inc., violated Section 8(a)(1) by refusing to rehire Mary Marvleen Williams because of her complaints about the order of a layoff. He found that she was not engaged in protected concerted activity. We find merit in the General Counsel's exception to this finding. Mary Marvleen Williams started working for the Respondent on January 15; 1975,1 as a janitor- cleaner. Three additional janitor-cleaners were hired around this time: David Tipps on January 13, Margaret Lawson on January 14, and George Propst on January 16. Tipps, Lawson, and Williams were hired as temporary employees; Propst was-hired to fill a permanent position. A collective-bargaining agreement exists between the Respondent and the Air Engineering Metal Trades Council and Affiliated Unions, AFL-CIO, with the job classification ofjanitor-cleaner designat- ed therein.2 Williams was given a copy of this agreement the day she started work. The contract requires all employees without any distinction be- i All dates refer to 1975 unless otherwise indicated. 2 This agreement will be in effect until February 28, 1978. 3 Bishop and Crutchfield, who also supervised Williams on occasion, were not called as witnesses. 4 E. A. Sons, business manager of the Union, stated that Williams complained to him about the layoff in April. He informed her that he was unable to file a grievance for her. 5 In the meantime Tipps and Lawson were rehired in June. s The parties stipulated that Williams was not terminated nor refused recall because of any shortcoming in her work performance. 7 The Administrative Law Judge in in. 22 of his Decision made the gratuitous comment that he was "mindful of the problems that Section 10(b) of the Act would impose had the General Counsel attempted to revert back to the termination date [April II ] in the alleged violation." He went on to 227 NLRB No. 43 243 tween permanent and temporary to serve a 90-day probationary period; at its completion the employees' seniority rights begin and revert to their starting date. Williams, Tipps, and Lawson were laid off-on April 11 before completion of their probationary period. Williams had heard rumors of the layoff which were confirmed by her supervisor, James Bishop,3 on April 4. Williams asked Bishop why Propst was not being laid off since he had been the last to start work. She then made a similar inquiry of Supervisor Crutch- field, again relying on, at least her understanding of, the contract. On the night of the layoffs, Williams complained to Shanks, Respondent's employment administrator, about the order of layoff; she again mentioned the contract .4 After this discussion Shanks informed Rutland, his supervisor, that Williams was a complainer. Williams thereafter called Shanks monthly inquir- ing about the possibility of reemployment.5 On or about October 22, Williams discovered Lawson had left a permanent janitor-cleaner position, and called Shanks requesting Lawson's job. Shanks told Wil- liams she would not be rehired because of her complaining; 6 he told her that her complaints had created a disturbance and that she had no right to question the order of layoff.? The Administrative Law Judge found Williams had no seniority status or rights under the contract, and that the motivation for her complaints stemmed from a lack of understanding of the contract and her desire for personal gain. As such he concluded Williams was acting for herself only and was not engaged in protected concerted activity. With these findings we disagree. The Administrative Law Judge did not view this case as involving the question of whether or not Williams' complaint had merit. We agree since the Board has long held that the merit of the employee's complaint is irrelevant to the issue of whether the employee is engaged in protected concerted activity.8 Nonetheless he went on to find that Williams did not understand the contract and had relied on rights specifically abrogated by the contract.9 Whether she understood the contract is irrelevant; Williams' remark that "the General Counsel concluded , for reasons unknown, that the Respondent decided to October not to rehire Williams because of her inquiries or `complaining.' " The obvious answer to this remark is that no violation was alleged to have occurred in April since the unfair labor practice was committed when Respondent decided not to rehire Williams and told her on October 22 that her continuous complaints about the layoff was the reason for this decision ; until then there was no reason to allege that an unfair labor practice had been committed. 3 Mushroom Transportation Co, Inc., 142 NLRB 1150, 1158 (1963), reversed on other grounds 330 F.2d 683 (C.A. 3, 1964); Interboro Contractors, Inc., 157 NLRB 1295, 1298 (1966), enfd. 388 F.2d 495 (C.A 2, 1967). 9 The record shows not only that Williams had read those provisions of the contract dealing with seniority and probationary status , but was relying on them in voicing her objections to the order of layoff 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reliance on its provisions brings her actions within the realm of protected concerted activity.10 We also disagree with the Administrative Law Judge's conclusion that Williams' only concern was retentionof her jab and, this being the case, that there was an absence ' of concerted activity. It is not necessary for employees to band together and overtly manifest by physical action their discontent before it will be found that their activity is concerted. In Hugh H. Wilson Corporation 11 the Board held that if the matter at issue concerns the group of employees and is brought to management's attention by a volunteer acting in their interest this will be deemed sufficient to invoke the Act's protection. Even individual protest which redounds to -the group's benefit is protected concerted activity.12 Williams discussed the layoff with a fellow employee, a union representative, and several of Respondent's supervisory personnel. If her contention was correct it would have immediately benefited another employee, not Williams. Individual complaints of this sort are similar to grievances, and since they will have- an effect on all employees, the Board has taken the position that such conduct is protected by the Act.13 The Administrative Law Judge found and Respon- dent's employment administrator stated that Wil- liams was not rehired because of her complaints. Having determined that these complaints constitute protected concerted activity within the meaning of Section 7 of the Act, we find Respondent violated Section 8(a)(1) by refusing to rehire Mary Williams. REMEDY Having found that the Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act, we shall order the Respondent to cease and desist therefrom and°from in any other manner infringing upon its employees' Section 7 rights, and take certain affirmative action, including reinstate- ment and backpay, designed to effectuate the policies of the Act. The backpay shall be computed on a quarterly basis in the manner set forth in F. W Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. ARO, Inc., the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By refusing to rehire Mary Marvleen Williams on October 22, 1975, because of her protected concerted activities, the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the mean- ing 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 Relations Board hereby orders that the Respondent, ARO, Inc., its officers, agents, successors, and assigns, shall: - 1. Cease and desist from: (a) Refusing to -recall or rehire employees for engaging in protected concerted activities. (b) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of, rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Mary Marvleen Williams immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any earnings she lost, plus interest, as a result of Respondent's failure to recall heron October 22, 1975. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its facilities in Tullahoma, Tennessee, copies of the attached notice marked "Appendix." 14 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous, places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken 10 Merlyn Bunney and Clarence Burney, d/b/a Bunney Bros Construction 14 In the event that this Order is enforced by a Judgment of a United Company, 139 NLRB 1516 (1962). States Court of Appeals, the words in the notice reading "Posted by Order of 11 171 NLRB 1040, 1046 (1968), enfd. 414 F.2d 1345 (C A. 3,1969). the National Labor Relations Board" shall read "Posted Pursuant to a 12 Id at 1046. - Judgment of the United States Court of Appeals Enforcing an Order of the 13 Interboro Contractors, supra. National Labor Relations Board." ARO, INC. by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a, hearing, that we violated Federal law by refusing to recall an employee for engaging in protected concerted activities, we hereby notify you that: The National Labor Relations Act gives all employ- ees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all these things. WE WILL NOT refuse to recall or rehire you for engaging in protected concerted activities. WE WILL NOT in any other manner interfere with you or attempt to restrain or coerce you in the exercise of the above rights. WE WILL offer Mary Marvleen Williams imme- diate and full reinstatement to her former job or, if that job no , longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and we will make her whole for any earnings she lost, plus interest, as a result of our refusal to recall her on October 22, 1975. ARO, INC. DECISION STATEMENT OF THE CASE RUSSELL M. KING, JR., Administrative Law Judge: This case was heard by me in Manchester, Tennessee, on February 12, 1976. The charge was filed by the individual (Williams) on October 22, 1975,1 and the complaint was 245 issued on December 4, 1975, alleging that ARO, Inc., (Respondent) violated Section 8(a)(1) of the National Labor Relations Act, as amended (the Act) by refusing to recall or rehire Williams because of her protected concerted activities.2 Upon the entire record, including my observation of the witnesses and their demeanor,3 and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS OF FACT I. JURISDICTION The Respondent is a corporation engaged in aeronautical research and development at its facilities in Tullahoma, Tennessee. As such and during the past 12 months, the Respondent has purchased and received products valued in excess of $50,000 directly from points located outside the State of Tennessee, and during the same period, the Respondent has sold or shipped products valued in excess of $50,000 directly to points located outside of Tennessee. The Respondent admits, and I fmd, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find, as admitted, that Air Engineering Metal Trades Council and Affiliated Unions, AFL-CIO (the Union), is a labor organization within the meaning of Section 2(5) of the Act .4 II. ALLEGED UNFAIR LABOR PRACTICE Summary of Evidence Mr. Robert Fred Shanks is employed by Respondent as an employment administrator, working in the personnel office. In that capacity, Shanks receives employment applications and requisitions, arranges for employment interviews, and makes employment offers. During 1975, Shanks was supervised by James M. Rutland who was manager of the personnel relations branch 5 Shanks indicated that the unit employees were paid hourly and that Williams was hired on January 15 as a "temporary" janitor-cleaner at $4.26 per hour in accor- dance with the wage scales set for in the union contract .6 1 All dates are in 1975 unless otherwise stated. 2 Williams had been laid off or terminated April 11. The parties are in agreement and-admit herein that the termination was not violative of the Act. 3 The facts found herein are based on the record as a whole upon my observation of the witnesses. The credibility resolutions herein have derived from a review of the entire testimonial record and exhibits with due regard for the logic of probability, the demeanor of the witnesses, and the teaching of N.LR.B. v. Walton Manufacturing Company & Loganvtlle Pants Company, 369 U.S. 404, 408(1962). As to those witnesses testifying in contradiction to the findings herein, their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record. 4 The Union, not a formal party in this case, represents the Respondent's operations, maintenance, repair, modification, and service employees. Williams was not a union member but her job fell within the unit. However, she was a "temporary" employee and that term, and the standing of a temporary employee in the unit, will be discussed later herein. 5 Rutland, who testified at the hearing, retired in January 1970. 6 The contract was introduced into evidence and in Appendix A thereof (Continued) 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Three other employees were also hired during the same period as follows: a. On January 13, David M. Tipps, temporary, janitor-cleaner. b. On January 14, Margaret Neal Lawson, tempo- rary, janitor-cleaner. c. On January 16, George S. Propst, "permanent" 7 janitor-cleaner. Shanks further testified that the "probationary" period for all 4 employees was 3 months and that Williams, together with employees Tipps and Lawson, were all hired as "temporary" (as opposed to "permanent") janitor-cleaners, were terminated on April 11, and before the expiration of the 3-month probationary period. Sometime prior to the terminations and on or about April 11, after the terminations had apparently been announced, Shanks testified that he and Williams had a conversations wherein Williams, according to Shanks, did not mention the union contract but did bring up "seniority" and inquired as to why employee Propst was not also being laid off. Shanks testified that he thought Williams was talking about "[s]emority, per se" without reference to the union contract. Shanks attempted to explain to Williams that Propst was kept because he was "hired as a permanent employee," but Williams, according to Shanks, did not understand (or was not satisfied with) the explanation.9 Sometime thereafter Shanks reported to Rutland (person- nel relations branch manager) that Williams "was a complainer," presumably because she had, in effect, com- plained of her termination in absence of that of employee Propst.10 Shanks indicated -that both Tipps and Lawson were later rehired, on June 2 and 24, respectively, and went on to receive or obtain "permanent" status with the Respondent.11 Shanks also testified that Williams contact- ed him "approximately monthly" after her termination seeking reemployment, to which he would reply that "she would be considered . . . if the job came open." 12 Lawson voluntarily resigned on October 10 and according to Shanks, her job was thereafter "posted." Shanks testified that Williams again contacted him "during [the] month of October" regarding reemployment and filling Lawson's "permanent janitorial position," whereupon he informed her that her "complaining . . . was the reason that she was not going to be rehired." 13, Williams initially testified that she was laid off on April 11, for "lack of work." 14 Her immediate supervisor was James Crutchfield and according to Williams, they both had a conversation together "on or about" the termination date 15 and wherein Williams again asked (or complained) about the fact that Propst was remaining although he had less seniority. According to Williams, Crutchfield replied that "he didn't know why that was, that he didn't know that he [Propst] was really on a permanent basis, how they based it." 16 Williams further testified that in the conversa- tion with Crutchfield she mentioned the contract, pointing the job classification does appear with a salary of $4.26 per hour for the first 6 months. However, records introduced in the case indicated that Williams made $3.90 per hour The discrepency was explained in later testimony A wage increase went into effect subsequent to the hiring of Williams and the new scale appears in the contract r The significance of "probationary" and "temporary" or "permanent" employees will be discussed later. A new "permanent" employee, or new employee filling a "permanent" position is yet a "probationary" employee for 3 months, but once he has worked 3 months. his seniority date reverts back to his origmal date of hire and he is no longer a probationary employee The union contract does not define the term "temporary" employee except to indicate that they "may be hired to perform temporary-work " The contract further provides that termination of "probationary" employees shall not be subject to the contract's grievance preceduies. "Temporary" employees are hired, as Respondent's written employment procedures state, "for temporary work or to fill jobs during the absence of regular employees " However, and according to Shanks, the 3-month probationary period also applies to "temporary" employees (new employees filling "temporary"jobs) and it thus appears that a temporary employee who works longer than 3 months becomes a "permanent" employee (regardless of his job designation or classification) and receives credit, for seniority purposes, for the probation- ary period while a "temporary" employee, thus and thereafter obtaining full and permanent status in the unit. The contract applies these principals unquestionably to new employees hired as "permanent" employees. Shanks further, and in testimony, defined "temporary employment" as "any short term employment for an indefinite period . to perform temporary work." Under the union contract, and according to Shanks, when a temporary job lasts more than 3 months, it then becomes (and is designated as) permanent, and is thereafter "posted " I conclude that if a new and temporary employee is initially hired to fill a "temporary " position or job, at or near the end of a 3- month period the Respondent is faced with the decision (and result) of either terminating the employee (and thus the job) or retaining the employee, thereafter in a "permanent" (or nonprobationary) status, and if in the same job, having created a permanent and lasting formal position subject to "posting" and being subsequently filled through and by the seniority procedures as set out in the union contract. The creation of additional "permanent" jobs or positions would, of course, have far-reaching effects in and on labor-management relations. Management would of course be hesitant in the creation of such new positions while the Union would encourage the same although here, by contract , the Union has in effect acknowledged the Respondent's unilateral right and choice in the matter s- Williams, in testimony, denied this conversation prior to her layoff. 9 Here again looms the difficult distinction between "temporary" and "permanent" employees or positions. I take Shanks' reference here to "permanent employee" to mean that the position employee Propst was filling was a permanent position, while Propst himself was still a "probationary" employee io As earlier recited Williams was hired January 15 as a "temporary" janitor-cleaner Propst was hired January 16 as a "permanent" janitor- cleaner. i1 Lawson, according to Shanks, was again laid off bacause of a "reduction in force" on June 27 (after obtaining permanent status on June 26), but was later rehired on August 25. The record does not reflect whether or not any other temporary or permanent janitor-cleaners were hired or recalled during the period between the termination date (April 11) and the date of the charge (October 22). 12 It is uncertain as to whether Shanks referred here to Williams' former and specific job or any insular type of job. I also note here that, according to Shanks, the job that Lawson was recalled to or in itself became designated as "permanent" after Lawson's reemployment in June. Propst's job or position itself was "permanent" at the time of his initial employment on January 16. i3 Again I conclude that the term "complaining," as used here by Shanks, refers to their conversation regarding "seniority" which took place just before the termination in April , and further to the fact that the subject was (at least inferentially) brought up with each subsequent and monthly reemployment inquiry by Williams. 34 It was stipulated by the parties that Williams "was not terminated because of any shortcoming in her performance . . [and that the Respon- dent ] did not refuse to rehire her because of it " 15 In cross-exanunation Williams placed this conversation on April 4 and after a conversation with another supervisor (Bishop ) on the same date. 16 The employment letters of Williams, Tipps, Lawson, and Propst were introduced into evidence and reflect that, out of the four, only Propst was designated as "permanent," the remaining letters indicating "temporary" employment. I again here conclude that these two terms so used referred to the actual position, and that all were "probationary" employees at the outset ARO, INC. 247 out that "all new employees [were] on 90 days proba- tion."17 Williams also testified that she had two conversa- tions regarding her layoff with Supervisor J. H. Bishop.18 The first conversation was on April 4, when, according to Williams, she was initially informed of the layoff by Bishop. Williams also related that she then asked Bishop who else was going to be laid off and upon finding out that Propst was to remain, she asked Bishop why, to which he replied that "he was hired permanent." The second conversation with Bishop took place on April 11 (the date of the layoffs), whereupon, according to Williams, Bishop told her "that he'd almost guarantee us 19 we'd get called back to work." Williams also acknowledged that she called and talked to employment administrator Shanks periodically after she left, mentioning on at least one occasion the retention of Propst, and that during the last call on October 21 or 22, Shanks indicated that she would not be recalled because she had "caused a disturbance ... because [she had] questioned why they kept Propst and laid Lawson, Tipps, and [herself] off." Williams conceded, on cross-examina- tion, that all of her inquiries (or complaints) were on her behalf only and that she understood that no employee had any seniority until after 90 days. James M. Rutland retired on January 31, 1976, after almost 20 years with Respondent. He had held the position of manager of the personnel relations branch prior to retirement and in testimony, he summarized the Respon- dent's history with the Union, which he indicated had been virtually continuous (and by contract) throughout his employment. In Rutland's position with Respondent, he had been involved with labor relations and he had been "in all the negotiations from 1953 forward." In his testimony, Rutland appeared to make a distinction between "proba- tionary" and "temporary" employees, confining "proba- tionary" employees to those filling only "permanent" positions. Rutland would also label an employee holding a permanent position as a "permanent employee, regardless, apparently, of whether or not the 3-month probationary period had been completed. Rutland further indicated that permanent employees (those hired into "permanent posi- tions) were given "pretty strict pre-employment checks," as opposed to temporary employees, and that temporary 17 Sec. 3 of the contract provides, in part, as follows: A new pennanent employee shall be considered a probationary employ- ee for the first three (3) calendar months of employment in a single seniority group . . . and at the end of this period, if he is retained, his name shall be placed on the seniority list .... [Emphasis supplied.] Sec. 8 of the contract further provides as follows When decreasing the work force, probationary employees, apprentices and trainees in the affected seniority group shall be the first to be laid off. When it becomes necessary to lay off employees in any job classification within a seniority group, the employees having the least seniority shall be laid off first 18 Neither Bishop nor Crutchfield testified at the hearing According to Williams, Bishop was Crutchfield's supervisor 19 The term "us" meaning, presumably, Williams, Lawson, and Tipps, the threejanitor-cleaners who were all laid off on April 11. 20 This view was also expressed in testimony by Mr. E A Sons, the Union's business agent Sons had talked to Williams "about the time that she was laid off" and advised her that the Union could not file a grievance under the terms of the contract, indicating that she should "check with the National Labor Relations Board." employees were "the first to go" in the case of a layoff or reduction in the work force. Further and according to Rutland, neither "temporary" or "probationary" employ- ees have seniority rights with the Respondent and under the terms of the contract 20 Evaluation of Law and Evidence and Initial Conclusions of Law The General Counsel charges herein a violation of the Act "on or about October 13," 6 months after Williams' termination. This date comes in approximate concert with the voluntary resignation of Lawson and the final telephone inquiry by Williams to Shanks and wherein Shanks indicated that her "complaining ... was the reason that she was not going to be rehired." Employees Tipps, Lawson, Williams, and Propst had originally been hired within 4 days of each other and on January 13, 14, 15, and 16, respectively. On April 11, Tipps, Lawson, and Williams were terminated and during the 6 month period which followed, Williams had seen Propst remain and Tipps and Lawson rehired. Williams' only concern I find was her own retention or reemployment. Her initial inquiries were naturally directed towards Propst, the only one in the group with a starting or employment date subsequent to hers.21 In October, when Williams discovered that Lawson had resigned, she understandably called Shanks again. By starting the alleged violation in October I can only infer that the General Counsel concluded that Williams had no actual rights under the contract (at least until after Lawson resigned in October).22 The Respondent, I find, had in reality three categories of employees; 23 namely, permanent, permanent-probation- ary, and temporary-probationary. A permanent employee is one that merely has worked for the Respondent for more than 3 months. A permanent-probationary employee is one that holds or fills a "permanent" position but has not yet worked for 3 months. A temporary-probationary employee is one who is filling a temporary position and who has not worked for 3 months. Once a temporary-probationary employee remains longer than 3 months he becomes a permanent employee by virtue of a system of credit, and whereby his initial 3-month period as a temporary employ- 21 The General Counsel argues that Tipps would have been the potential beneficiary of Williams' inquires about Propst. The record and evidence does not support this contention 22 I am mindful of the problems that Sec. 10(b) of the Act would impose had the General Counsel attempted to revert back to the termination date (April 11) in the alleged violation. However, such would not have been the case if the violation was started with the rehiring of either Tipps or Lawson in June Williams' inquiries were continuing during this period. Thus, it appears further that the General Counsel concluded, for reasons unknown, that the Respondent decided in October not to rehire Williams because of her inquiries or "complaining." 23 There were also two types of positions; namely, permanent and temporary. It appears that the type of position had no actual affect on seniority rights under the general framework of the contract, the key being whether or not the employee worked more than 3 months, regardless of the type of position held. Propst was initially hired into a permanent position. There is no evidence in the record to indicate whether or not Propst's position was "posted" prior to his employment or why it was not filled internally The contract, however, required posting and since the position was permanent, it is understandable that the Respondent would want the position filled over that of temporary positions because of the need for the work product or to avoid an additional posting process, or both. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ee is credited and the probationary period required perma- nent-probationary employees is waived.24 I find in this case that Williams had no seniority status or rights under the contract and that her inquires" or comp- laints were thus regarding rights that did not exist. I do not view this case as involving the question as to whether or not Williams' complaint had merit. Although it did not, as I have concluded above, I find that the Respondent did attempt an explanation on several occasions through Supervisors Shanks and Bishop. I am also mindful that Williams did mention the contract (or the "book") in her complaint but it is the contract itself that, while ambiguous in many areas, clearly denies seniority and its grievance procedures to all employees during the first 3 months of employment. Williams was never, asked whether she had read and understood the contract. However, it is clear that she did not understand Propst's_retention over her termination and, as I found earlier, she was only concerned with retaining or getting her job back. Williams' conduct was motivated by her lack of understanding and her personal desires to be employed. The very authority she cited on her behalf (the contract) was the same authority that clearly denied her the seniority right she sought to enforce. I find it impossible to stretch -the facts of this case to meet the Board's judicial precedents defining and encompassing protected concerted activity. The actions of Williams in this case I thus find and conclude were not concerted activity and were purely personal. CONCLUSIONS OF LAW 1. Respondent is an employer , engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent did not violate Section 8(a)(1) of the Act by its actions as alleged in the complaint and reflected in the record in the case. [Recommended Order for dismissal omitted from publi- cation.] 24 The union contract mentions "temporary employees" only once and in Temporary employees may be lured to perform temporary work; sec. II entitled "Job Posting." The clause reads as follows- however, if the job continues for a period of three (3) months, the position will be posted in accordance with this section.