Union Mining Company of Allegany County, Inc.

UNION MINING COMPANY Union Mining Company of Allegany County, Inc. and Donald L. Uber. Case 6-CA-13929 September 29, 1982 DECISION AND ORDER BN, CHAIRMAN VAN DI: WATIR AND MlMBnHIRS FANNING AND HL'NTER On March 29, 1982, Administrative Law Judge Burton S. Kolko issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs, and Respondent filed a brief in opposition to the exceptions filed by the General Counsel. 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, find- ings,' and conclusions of the Administrative Law Judge, as modified herein. I. In his complaint the General Counsel alleges that Respondent violated Section 8(a)(l) of the Act when its official. John Chambers, told employee Uber that he was "too strong a union man." Cham- bers denied having said this, while Uber testified that Chambers used these words during a discus- sion of Uber's grievance filing. The Administrative Law Judge found that Chambers did not use the quoted words, in effect discrediting Uber's version of his conversation with Chambers. The Administrative Law Judge never- theless found that Uber's testimony indicated that "there was some discussion of his having filed the grievance." He concluded that Chambers unlawful- ly intended to communicate to Uber Respondent's displeasure with Ulber's filing of a grievance and to discourage other employees from such activities. We cannot agree w ith the Administrative Law Judge. Absent the version of the conversation of- fered by Uber, which the Administrative Law judge discredited, there is no basis other than spec- ulation for concluding that the conversation violat- ed the Act. Accordingly, we shall dismiss this alle- gation of the complaint. 2. Employee Ralph Corbin testified during the first day of the hearing in the instant case. The day after he testified, Plant Superintendent Keebler I Respondeltt hais cxcclte to I eri l trcdihbilit findings nmade h) the Adninliustratilc 1.a1s I Judge It s, the hoard's established pollhc not to oxerrule ,tt adnintirail\i 1 Iu. plext I otsotliltno i is Aith respect to credi- bilits unles,, the Ll[tar prepn Jdtcra.ltce f ill of the relesant ceidenr e ,coI- rinces u, thatl Ihe IL' -o luli tlls i re ilcorrectl Silutad rd [DrI (l//l ProducLt, hIra, )I1 NI Ri3 544 t l*(I) .unl1 I]S I 2d 3i(2 (<d Or IgSl) We hase c;Itll'l'll C\.ItlillnL'd hC I t'L'tL. t1 J tII d I ll11 1 sis I l 1j I ret\tcr ig hl fijlldlings 264 NLRB No 52 called Corbin into his office twice. Keebler interro- gated Corbin about Corbin's testimony, and ac- cused him of lying at the hearing. Additiohally, during the course of these interrogations concern- ing Corbin's testimony, Keebler transferred Corbin away from his job as "pusher" in Respondent's bagging department, and gave him a written disci- plinary warning for alleged misconduct assertedly revealed during his testimony on the first day of the hearing. The facts concerning these conversations are ba- sically not in dispute and were largely conceded by Keebler when he testified later in the hearing. Ac- cordingly, we find that Keebler's conduct was clearly interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act.2 In spite of the foregoing, the Administrative Law Judge found only the interrogation of Corbin by Keebler to be unlawful. He made no finding as to the warning slip and demotion since he found that an unfair labor practice charge filed during the hiatus in the hearing concerning this conduct had been withdrawn. In this connection he relied on a copy of a letter from the Regional Director to Re- spondent dated November 3, 1981, attached to Re- spondent's brief, in which the Regional Director informed Respondent that a charge had been with- drawn. This charge was attached to Respondent's brief, and it states that Respondent had violated Section 8(a)(4) and (1) by giving Corbin the warn- ing slip and by demoting him. Contrary to the Administrative Law Judge, these alleged violations were properly before him and it was incumbent upon him to make findings regard- ing them. In this regard, the General Counsel moved to amend the complaint to include these al- legations in a timely3 fashion, and the Administra- 2 See. e.g.. Sreel-Fab. Inc., 212 NLRB 363. 377 (1974); Brown . Root- Northrop, 174 NLRB 1048 (1969): and The Paymaster Corporation. 165 NLRB 381 (1967). We find it unnecessary to pass on the General Counsel's contention that this conduct also violated Sec. 8(a)(4) of the Act since the Adminis- trative Law Judge found, as reflected in the transcript, that the General Counsel did not allege that it constituted a violation of Sec 8(aX4) when he moved to amend the complaint at the hearing. : We find no denial of due process to Respondent in the General Counsel's amendment of the complaint at the hearing. In this regard, the subject matter of the amendment was reasonably related to that contained in the original charge since it grew out of the very proceedings initiated by the charge. See, for example, Steel-Fab. Inc.. supra. where, like the in- stant case, the violation occurred during a hiatus in the hearing: and lowa Beef Processors, 226 NLRB 1372 (1976), enfd. 597 F.2d 1138 (8th Cir. 1979), where the violation found consisted of remarks made by the re- spondent's attorney during the hearing. In the latter case, although the violation found was never the subject of a charge and the complaint was never amended to include it, the Board and the court found no denial of due process since the issue was litigated and briefed before the Board en. surinlg that the compan) was apprised of the issue. In the instant case, the complaint was specifically amended to include the allegations at the be- ginning of the second day of the hearing, October 19. 1981, and the issue ras litigated both on the second and the third and final day of the hear- irig At no time did Respondent request a continuance. Accordingly, we find ito prejudice to Respondent in the amendment of the complaint. 275 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive Law Judge properly granted the General Counsel's motion. The subsequent withdrawal of apparently parallel charges, for whatever reason, is clearly outside the record and irrelevant to the dis- position of the amended complaint here.4 In view of the foregoing, we find that Respond- ent violated Section 8(a)(l) of the Act by demoting Corbin, and by giving him a written disciplinary warning slip in retaliation for his testimony given at the hearing herein. We shall modify the recom- mended Order accordingly.5 AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 1: "1. By coercively interrogating Ralph Corbin about his testimony at the hearing for this case, by issuing him a warning slip, and by demoting him, Respondent has violated Section 8(a)(l) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Union Mining Company of Allegany County, Inc., New Galilee, Pennsylvania, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about testimony given in Board proceedings and giving them warn- ing slips or demoting them in reprisal for that testi- mony. (b) Discharging employees because they utilize the grievance procedure or engage in other union or other protected activities. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of rights guaranteed them in Section 7 of the Act. 4Moreover, the Board has long held that withdrawal or dismissal of a charge without prejudice does not bar a finding of a violation in a sepa- rate proceeding based on essentially the same allegations. See, e.g., Ad Art, Inc., 238 NLRB 1124, 1130, 1132 (1978); Terminal Equipment. Inc., 219 NLRB 261, 262 (1975); and McCloskey and Company, Inc., 116 NLRB 1123, 1124 (1956). 5 Since we are finding that the warning slip issued to Ralph Corbin on September 16, 1981, was unlawful, we shall order Respondent to expunge from the personnel records of Ralph Corbin all references to that warn- ing slip. Similarly, we shall order Respondent to expunge from its records any reference to the unlawful discharge of Uber and to provide written notice to Corbin and Uber that Respondent's unlawful conduct will not be used as a basis for future personnel actions. See Sterling Sugars, Inc., 261 NLRB 472 (1982). Additionally, the Administrative Law Judge neglected to include a general "cease-and-desist" provision in his recommended Order. Accordingly, we shall order that Respondent re- frain from in any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Sec. 7 of the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Offer Donald L. Uber immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings, with interest, 6 he may have suffered as a result of the discrimination against him in the manner described in the section of the Administra- tive Law Judge's Decision entitled "The Remedy." (b) Post at its facility in New Galilee, Pennsylva- nia, copies of the attached notice marked "Appen- dix." 7 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's representative, shall be posted 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. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Expunge from the personnel records of Ralph Corbin all references to the unlawful warning slip, expunge from its records any reference to the un- lawful discharge of Donald L. Uber, and inform Uber and Corbin, in writing, that its unlawful con- duct will not be used as a basis for future personnel actions against them. (d) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 See. generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962). In the event that this 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPI OYFES POSTED BY ORDI R OF THE NATIONAL. LABOR REIATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions. the National Labor Relations Board found that we have violated the National Labor Relations Act. as amended, and has ordered us to post this notice. WE WII. NOT discharge employees because of their union or other protected concerted ac- tivities. 276 UNION MINING COMPANY WE WILL NOT interrogate employees about any testimony given in National Labor Rela- tions Board proceedings, or give them warning slips or demote them in reprisal for that testi- mony. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed by Section 7 of the Act. WE WILL offer Donald L. Uber immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his se- niority or other rights and privileges, and WE WILL reimburse him for any loss of earnings he may have suffered because we discharged him, together with interest. WE WILL expunge from the personnel records of Ralph Corbin all references to the unlawful warning slip, expunge from our records any reference to the unlawful dis- charge of Donald L. Uber, and inform Uber and Corbin, in writing, that our unlawful con- duct will not be used as a basis for future per- sonnel actions against them. UNION MINING COMPANY OF ALLE- GANY COUNTY, INC. DECISION STATEMENT OF THE CASE BURTON S. KOLKO, Administrative Law Judge: The complaint in this case alleges that Union Mining Compa- ny of Allegany County, Inc. (Respondent), engaged in unfair labor practices under Section 8(a)(1) and (3) of the Act by attempting to discourage Donald L. Uber from filing union grievances and by discharging him on Octo- ber 6, 1980, because Uber "engaged in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection."' The complaint was amended on October 19, 1981, to include violations of Section 8(a)(1) and (3) of the Act in regard to Respondent's actions concerning Ralph A. Corbin, Sr. 2 The amendment alleges that Respondent had interrogated Ralph about his Board testimony, de- moted him, and issued him a warning slip because of his testimony. Respondent denied the unfair labor practice allegations in the original complaint and objected to the addition of other charges on October 19. Its objection was over- ruled. I The initial charge was filed by Uber in Region 6 on October 14. An amended charge was filed on October 22. The complaint issued on March II, 1981. The hearings were held on September 15 and October 19 and 20, 1981 2 Ralph Corbin will be referred to as Ralph. His son, Kenneth Corbin, also testified He will be referred to as Kenneth. Upon the entire record, particularly my observation of the demeanor of the witnesses, and after consideration of the post-hearing briefs, I make the findings and conclu- sions that follow.3 Respondent admits that it is an employer engaged in the manufacture and nonretail sale of refractory products and that during the calendar year ending September 30, 1980, it sold and shipped from its New Galilee. Pennsyl- vania, facility goods and materials in excess of $50,000 directly to points outside the Commonwealth of Pennsyl- vania. Thus, Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. Re- spondent also admitted in its answer the supervisory status of John Chambers, acting superintendent. The labor organization involved, Laborer's District Council of Western Pennsylvania, on behalf of Local Union No. 1058, affiliated with the Laborers Internation- al Union of North America, AFL-CIO, herein called the Union, falls within the meaning of Section 2(5) of the Act. 1. EVENTS LEADING TO UBER'S DISCHARGE Donald Uber, employed as a mechanic at the Union Mining plant in New Galilee, suffered an injury to his knee while at home on Sunday, November 18, 1979. He called in sick the next day, and later found out that the knee would have to be operated on. He took a leave of absence from Union Mining. After approximately 7 months, in May, Uber reported back to work with a note from his doctor. The Company would not let him resume his job, however, because the doctor had only re- leased Uber for light work, and according to company officials there was no light work at the plant. Uber had another examination by his doctor in June, and was pro- nounced fit for work with no restrictions. He returned to the factory on June 9 to begin work, but this note from the doctor was also rejected. The Company told Uber he would have to be examined by another doctor, and that the Company would arrange the visit. More than a month passed. On July 21, Uber was informed that an appointment with a doctor had been arranged for July 24. During this time, Uber filed a grievance against the Company for not allowing him to return to work, the first grievance filed under the new union contract. 4 Uber did return on August 13, 1980. John Chambers, a management official, informed Uber that there was not enough work in the garage for another mechanic, and that Uber would have to work in the bagging room on the carbon line.5 (In fact, the garage force had been re- duced from four to two, and Uber did not have enough seniority to bump either of the two men working there.) The five jobs in the bagging room were to be done on a rotation basis, the men switching stations after 16 or 17 pallets had been filled. The Company expected that at I The General Counsel has moved to amend the transcript of this case. I grant the unopposed motion. with certain exceptions 4 The Union was certified as the bargaining representative at the New Galilee plant on February 12. 1979. ' Respondent's bagging room operation consists of fine jobhs: hagging. gluing. sewing, palletizing, and driving the forklift There were also a "pusher," who was not a supervisor but did oversee the production, and a front-end loader. 277 DECISIONS OF NATIONAL LABOR RELATIONS BOARD least 50 pallets or skids would be filled each day. In actu- ality, the rotation was not a perfect one. One man, John Lauthan, did not operate the forklift; Kenneth Corbin did not sew; and Donald Uber did not palletize. The pusher allowed this arrangement, believing that the only requirement the Company had was to get out 50 skids a day. On September 22, 1980, Donald Uber filed the Union's second grievance. He alleged that the Company was dis- criminating against him by using a truckdriver to do me- chanic's work when he, a mechanic, was doing produc- tion work. He also complained that Respondent had been sending its garage work to a nonunion facility since the Union had been certified. Sometime between the September 22 grievance and the October 6 discharge, Chambers informed the bagging room that they would have to work overtime to fill a rush order. He relayed this information just as the men were about to leave for the day. Uber complained to Chambers that, according to the union contract, employ- ees were to receive advance notice when they would be required to work overtime. The work was performed, but the next day Chambers told Ralph Corbin, "Donnie had me this time but it won't happen again." On or about September 30 Uber caught influenza and was out of work until October 6. On October 6 he was called into Moe Keebler's office with John Chambers. Keebler, the plant superintendent, told Uber that he was being discharged because he would not palletize and be- cause an employee complaint had been received by them regarding his refusal to palletize. On October 14 Uber filed a charge with the Board. On or about October 24 Ralph Corbin was relieved of his job as a pusher. Respondent replaced him with Charles (Chuck) Gorbey. Within 1 week thereafter, Gorbey an- nounced to the bagging room employees that it had become mandatory that each employee rotate to each of the bagging room jobs. II. THE DISCHARGE OF DONALD UBER A. Rotation in the Bagging Room Testimony elicited at the hearing indicates that for at least 4 years prior to October 1980 the bagging room employees, in an informal and unstructured manner, moved randomly from one job to another each day. As these employees rotated from one job to another, some of them avoided certain jobs which they either could not or did not like to perform. Ralph Corbin stated that, as pusher, he permitted the bagging room employees to do whatever they wanted to do or were good at doing. As Ralph understood it, the Company seemed concerned only about daily production levels-50 skids a day. James Keebler (also called Moe), the superintendent of the plant, testified that, as far as he knew, the company policy was that every man rotated to every job each day. He indicated that he asked the pusher if everyone was doing his job, and the pusher replied affirmatively. Keebler said that the only person he knew of who was not doing his job was Donald Uber. He had asked Uber how the palletizing was coming and Uber had replied that he could not do it. Keebler also testified that Ralph Corbin had complained to him about Uber, a charge that Ralph denies.6 Kenneth Corbin, Ralph's son, stated that Moe Keebler knew he did not sew while in the bagging room. After learning during a conversation in the bagging room that Kenneth did not sew, Keebler never mentioned it again to Kenneth. I credit Kenneth's testimony. Kenneth, Ralph, Uber, John Lauthan, and Gary Ridg- ley all testified that John Lauthan had not run a forklift prior to Uber's discharge. Lauthan further testified that he had told John Chambers about his fear of driving the forklift, and that nothing further had been said about it. So, we have a company policy that says that everyone must rotate among the five jobs in the bagging room. The policy, however, is not enforced. Both Keebler and Chambers knew that some men were not rotating to all five jobs. As will be discussed, their knowledge flies in the face of their reason for discharging Uber, making such reason mere pretext. B. The Union Grievance First, the Union Mining employees' relationship with their Union, Laborer's Union, Local 1058, is not ideal. A shop steward, Harry Miller, had talked to his brother-in- law, a lawyer, to get the Union decertified. The Union's organizer, Joseph DeFrank, was defensive on the witness stand and there were allusions to the fact that the em- ployees were not happy with his representation. Nevertheless, the Union had been in place at the plant since February 12, 1979. Between that time and October 6 when Donald Uber was discharged, only two written grievances had been filed against Union Mining. Both had been filed by Donald Uber. Uber testified that, on or about August 18 while Uber was visiting Chambers in his office, Chambers told Uber that Uber's problem was that he was "too strong a union man" and that Uber's whole problem was having filed the first grievance on June 24. Chambers denied making the "too strong a union man" remark and, although I found Uber general- ly a credible witness, in this instance I believe his memory may be somewhat exaggerated. I believe that Chambers did not make such a remark. On the other hand, I do believe that the conversation did in some way touch upon Uber's filing a grievance. On September 22 Uber filed the second grievance ever filed under the union contract, this time alleging that the Company was using a truckdriver to do mechanic's work while he, a mechanic, was doing production work. The grievance also dealt with the Company's alleged new practice of sending out garage work. Sometime during the following week, Uber verbally raised with Chambers a contractual issue relating to overtime work. This was followed by an exchange be- tween Chambers and Ralph Corbin. Ralph testified that Chambers said "Donnie had me this time, but it won't happen again." Although Chambers took the stand at the I I credit Ralph Corbin's testimony over Keebler's Keebler was defen- sive on the witness stand and, as he indicated. he stood to lose his job if his case comes out "wrong" Ralph Corbin, on the other hand, impressed me as objective and credible. 278 UNION MINING COMPANY hearing, no evidence was presented that he refuted this statement. C. The October 6 Discharge On October 6 Uber was called into Keebler's office and was told that he had received complaints from others about Uber's refusal to palletize and that Uber had to palletize, that if he did not he would have to leave. Uber told Keebler and Chambers that he could not pal- letize. He went back to the bagging room. Upon enter- ing, Ralph Corbin told Uber that Chambers had told him not to let him work. Ubcr left to find his brother. The two Ubers then talked to the other men in the bagging room. No one admitted complaining about Uber. Keebler and Chambers, at the hearing, stated that Ralph Corbin had told them about the complaints. Ralph Corbin, al- ready credited earlier, denies having made such a com- ment. All of the bagging room employees testified that they had never complained to anyone that Uber did not palletize. All testified that the Company did not require its employees to perform all jobs in the bagging room. 111. DISCUSSION AND FINDINGS A. The "Too Strong a Union Man" Charge The General Counsel alleges that Respondent violated Section 8(a)(l) of the Act by telling Uber, through John Chambers, that he was "too strong a union man." As mentioned earlier, Chambers denies having said this. I believe that Chambers did not use those exact words, but Uber's testimony indicated that there was some discus- sion of his having filed the grievance. I find that Cham- bers, as a supervisor, violated the Act. His statements to Uber were intended to communicate Respondent's dis- pleasure with his filing the grievance and to discourage other employees from engaging in such activities. 7 B. The Charge of Illegality in Donald Uher's Discharge The General Counsel contends that Donald Uber was discharlged because he continued to use the grievance process to protest Respondent's conduct relative to work assignments and overtime, thus resulting in a violation by Respondent of Section 8(a)(l) and (3) of the Act. Re- spondent has presented many defenses to this charge, none of which are persuasive. They are as follows: 1. Donald Uber was not engaged in any concerted ac- tivities within the Section 7 compass. Respondent cites Ontario Knife Co. v. N.L.R.B., 637 F.2d 840 (2d Cir. 1980), as authority for its assertion. However, the facts in Ontario are quite different from those before us. In On- tario, the employee had shut off her machine and punched out of work in protest of a change in policy. The Second Circuit found that, because the employee had acted alone, her walkout was not protected concert- ed activity In the instant case the factors leading to the discharge-the filing of grievances and the conversation about overtime as a union contract provision-are clear- ly protected concerted activities within the meaning of the Act. 7 & H Pr,/, & di (i'ompipn'l Irb'. 244 N.RH 11 28 (1979) 2. The carbon line policy had been in force for 28 years. and if the policy had been violated it was done surreptitiously between the pusher and the employees. Keebler testified that the policy had been in effect for 28 years. David Livingston, an employee who had worked as a pusher for some time, testified that, as far as he knew, the policy had been in effect for 12 years. Liv- ingston, however, is not a competent witness regarding Ralph Corbin's practice as pusher. Even if the policy had been written down somewhere for that long, it became clear at the hearing that the policy was not en- forced while Corbin was pusher. Keebler knew that Kenneth Corbin did not sew and both Keebler and Chambers knew that John Lauthan did not drive the forklift. It becomes obvious that Keebler allowed such "bending" of the policy because, as Ralph Corbin testi- fied, his only concern was getting out a certain amount of production. It was only when it became clear that Uber was going to continue to hold the Company to its union contract commitments, and would protest if the Company transgressed, that Keebler and Chambers de- cided to enforce the company policy. This is discrimina- tory action and clearly a violation of Uber's Section 7 rights. Ralph Corbin's testimony was certainly the most dam- aging to Respondent. In an effort to dispute Ralph's tes- timony, Respondent has proffered some implausible pre- sumptions. First, Respondent indicates that Ralph may have been confused in his testimony because of his age. I noted no such confusion. Secondly, Respondent states that Ralph may have refused to admit at the hearing that he had told Keebler that men were complaining about Uber because Uber and his brother William, also a plant employee, were sitting in the hearing room at the time. Respondent further hypothesized, "the entire staff of em- ployees live in the same area, in a small town, and are afraid to start arguments with each other." (Resp. br., p. 27.) Although this is a plausible argument, it is not per- suasive. Ralph Corbin did not appear to be an easily in- timidated man. If he were, one might say that it made more sense to lie against his coworkers than against his employer, who provides his paycheck. Respondent indicates that "no special discriminatory rules or conditions of employment were made and put into effect for Donald Uber." (Resp. br., p. 25), yet at the hearing John Chambers testified that he told Uber that he had 6 weeks to work into the jobs in the bagging room. He further stated that Uber was the only employ- ee transferred from a different plant location to whom Chambers gave such a warning. Chambers noted that he made this special exception because he was concerned about Uber's health. However, Chambers' remarks to Uber do not evince a concern for Uber's health. This conversation, which took place after Uber had filed the first union grievance ever filed against the Company, warrants a different view when coupled with Chambers' conversation about filing union grievances and his remark to Ralph Corbin about Uber having "gotten him" when the crew had to work overtime, as described earli- er. It becomes obvious that Uber had been singled out 279 DECISIONS OF NATIONAL LABOR RFI' AT IONS BOARD from the beginning of his return to Union Mining followc- ing his accident. 3. Respondent also argues that the Company promised the Union it would treat all employees equally and thus was forced to fire Donald Uber, who wanted special treatment. This argument carries no weight-Uber did not ask for treatment different from that already being given to Kenneth Corbin and John Lauthan. 4. Respondent's last argument states that its actions were in accordance with the Union's contract. Even if this were the case, Respondent's action may be defined nevertheless as an unfair labor practice under the Nation- al Labor Relations Act. Respondent has stated several times that discharging an employee who will do only the work he or she desires and no more is not an unfair labor practice. This is true. I find, however, that Donald Uber was discharged because he repeatedly sought to hold Respondent to its union contract with its employ- ees, through the formal grievance process and through informal conversation within the context of protected concerted activity. I find that Respondent's actions would tend to chill any employee's desire to file a griev- ance, however valid the grievance might be, and that Respondent used Uber's refusal to palletize as a pretext to cover its illegal action." C. The Charge Concerning Changes in the Bagging Room Operation Subsequent to October 24 The General Counsel alleges that Respondent further violated Section 8(a)(1) and (3) of the Act in attempting to conceal its unlawful discharge by changing its bagging room operation subsequent to Donald's discharge. I cannot agree with the General Counsel's contention. Re- spondent did not attempt to conceal anything by chang- ing its policy. Rather, one may surmise that, after receiv- ing the charge Uber filed with the Board, Respondent recognized a need to clean up its policy enforcement. The Board will not find a violation simply because the employer changed its policy. The change must somehow involve a denial of Section 7 rights.9 There was no such denial here. No violation can be found for this charge. I recommend dismissal. D. The Charges Regarding Ralph Corbin The charge by which Ralph Corbin alleged a violation of the Act with regard to Keebler's demoting him and issuing him a warning slip was withdrawn. A memo to that effect was signed by Region 6's Regional Director on November 3, 1981. Counsel for the General Counsel appears to be unaware of this development, since the issue was fully briefed in the document I received dated November 23, 1981. Respondent's brief has provided me with a copy of the withdrawal notice, therefore we need not discuss the demotion or the warning slip episode. Since the withdrawal did not mention specifically the two interrogations that were performed on Ralph Corbin Since I ha\.e found the discharge prelextual. there is no need to conl plilc t' right Lin, ullanalysis. Li,tnevone Appurel Corp., 255 NI Ri 722 (1981 !- See Pilot IFreithl (Crrieis, mI(, 221 NtLRB 10(26 1975) by Moe Keebler that same day, we will consider that charge still active. The day after Ralph and the other employees testified at the hearing in this case,' ° Keebler summoned Ralph to the office and, in a very emotional and hostile tone, accused both Ralph and the others who testified of lying. He wanted to know why they all had lied, he told Ralph. When the hearing resumed, Keebler appeared still to harbor resentment. At one point, in responding to a question put to him by the General Counsel about whether he was bitter concerning Ralph's prior testimo- ny, Keebler said, "You're damn right I was upset. I chewed him out." Keebler had every reason to be aware of the sequestration order put on the witnesses and of Ralph's inability to talk about the proceeding. Moreover, such an interrogation is inherently coercive and inter- feres with the type of free and uncoerced testimony sought by the Board.' I find a violation of Section 8(a)( 1 ). CONCL USIONS OF LAW 1. By attempting to discourage Donald Uber from filing union grievances, and by coercively interrogating Ralph Corbin about his testimony at the hearing for this case, Respondent has violated Section 8(a)(1) of the Act. 2. By discharging Donald Uber because he filed griev- ances with the Union and voiced complaints arising under the collective-bargaining agreement, Respondent has violated Section 8(a)(1) and (3) of the Act. 3. The unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act. TIrE REMEDY Having found that Respondent has engaged in certain unfair labor practices. I recommend that it cease and desist from engaging in such practices and take affirma- tive action designed to effectuate the policies of the Act. I shall recommend that Respondent be required to offer Donald L. Uber immediate and full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of such discrinlinationl by payment of a sum of money equal to that which he normally would have earned as wages from the date of his discharge on October 6, 1980, to the date of his offer of reinstatement, less his net earn- ings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and with interest thereon as set forth in Florida Steel Corpora- tion, 231 NLRB 651 (1977). Respondent shall make avail- able to the Board, upon request, all payroll and other I here xas ihiat l hl.I. cln Ihe first and second days of the hearing I Ili, epi-ode ticok plaie Ihell. a tlld I glillllned he General Ciounsel'. nmotion henl the hea.ilig resumed ti LI, LaeIId tile impn laint to inctlUdC this epi- "I (t l:uri Kuhn; d tha/. Ilrlihi" . 247 NLRU 1212 (I98i0l. :alid %If- ,p tih Irlruickig Sterie. Itrn 24(i NL RB 1225 (1q1794 280 UNION MINING COMPANY 281 records to facilitate checking the amount of earnings due. [Recommended Order omitted from publication.]