Columbus Foundries, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Columbus Foundries, Inc. and Willie Griffin. Case I 0- CA-12231 April 18, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHIY On January 5, 1977, Administrative Law Judge Stanley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 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 1 and has decided to affirm the rulings, findings,2 and conclusions 3 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Columbus Foundries, Inc., Columbus, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I Respondent's request for oral argument is hereby denied because the record, the exceptions, and the brief adequately present the issues and positions of the parties. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dr), Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. : At the hearing and in its exceptions, Respondent urged deferral of this matter in accordance with the policies enunciated in Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971). Based on Respondent's unwillingness unconditionally to proceed to arbitration, among other reasons, the Administrative Law Judge concluded that deferral is not appropriate. In accordance with the views expressed in General American Transportation Corporation, 228 NLRB 808 (1977), and elsewhere, Chairman Fanning and Member Jenkins would not in any event defer this matter. Similarly, in accordance with the views expressed in her concurring opinion in General American Transportation Corporation, supra, Member Murphy would not in any event defer this matter to arbitration. DECISION PRELIMINARY STATEMENT; ISSUE STANLEY N. OHLBAUM, Administrative Law Judge: This proceeding under the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq., herein the Act), based upon complaint issued by the Regional Director for Region 10, dated October 22, growing out of a charge filed on September 1 by the Charging Party, Willie Griffin, was heard by me in Columbus, Georgia, on November 23-24, 1976,1 with all parties participating throughout by counsel, who were afforded full opportunity to present evidence and arguments. Posthearing brief and letter from counsel were received on December 27 after time extension. The principal issues, fully litigated by both sides, are whether Respondent Employer, Columbus Foundries, Inc., violated Section 8(aX3) and (1) of the Act by terminating the employment of its employee Willie Griffin on May 1, 1976, because he endeavored to assist and represent two fellow employees, at their request, at a disciplinary interview involving suspected or alleged work misconduct, resulting in the discharge of one of the employees; and whether Respondent acted lawfully in refusing to permit Griffin to act in that capacity. Record and brief having been carefully considered, upon the basis thereof and my observation of the testimonial demeanor of the witnesses, I make the following FINDINGS AND CONCLUSIONS I. JURISDICTION At all material times, Respondent Columbus Foundries, Inc., a Georgia corporation, has been and is engaged in the manufacture and sale of cast iron fittings and moldings in and from its place of business in Columbus, Georgia. During the representative year immediately preceding issuance of the complaint, in the course and conduct of those business operations, Respondent sold and shipped, directly in interstate commerce to customers in places outside of Georgia, finished products valued in excess of $50,000. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; and that at all of those times United Steelworkers of America, AFL-CIO, has been and is a labor organization within the meaning of Section 2(5) of the Act. I Dates are 1976 throughout, unless otherwise specified. 229 NLRB No. 14 34 COLUMBUS FOUNDRIES, INC. II. ALLEGED UNFAIR LABOR PRACTICES A. Facts as Found Respondent is a Columbus, Georgia, manufacturer and marketer of cast iron fittings and moldings. On Saturday morning, May 1, 1976, work was being done at the foundry, with a hand-shovel crew removing dirt, coal dust, or sand from under a 30-40 feet long pouring platform.2 The work crew included laborers Jenkins, Jackson, and Griffin, each classified as a "dumper" or "weight shifter," and also Pouring Foremen Richardson and Jones. Griffin has been in Respondent's employ continuously for over 2 years. Around midmorning, Foreman Richardson, remarking that he smelled something funny or like marijuana or "pot," shone his flashlight under the platform, where he observed Jenkins-who was working close to Jackson- smoking. When Richardson asked Jenkins what he was smoking, or whether he was smoking marijuana or "pot" or a "reefer," Jenkins snuffed out his cigarette and replied he was smoking a "Kool" (a mentholated cigarette). Indicat- ing he thought it was a "reefer," and remarking to Griffin-who was on the platform itself-that "any guy . . .would jeopardize their job smoking reefer," Richard- son walked away and soon returned with fellow-Foreman Jones (who was further away on the platform), to whom he had narrated the foregoing. The two foremen ordered Jenkins and Jackson to accompany them to the office.3 Meanwhile, Griffin-who was one of several elected union4 grievance committeemen, with his name posted on the Company bulletin board(s) and known to the Compa- ny5 and the unit members as such-had reminded Jenkins and Jackson that he was their union committeeman and would represent them in view of the potential seriousness of the charge. Jenkins and Jackson told Griffin that they wished Griffin to represent them and would tell this to the Company. Jackson added that he did indeed want Griffin to be there since "1 [Jackson] think there's going to be some junk going on." On the way to the office-with one foreman pairing up with one of the accused or suspected laborers, followed by the other foreman and laborer-Jenkins told Foreman Jones he wanted Griffin to represent him.6 In the office, the two foremen began questioning the two laborers as to whether there had been marijuana, "pot," or "reefer" smoking-a dischargeable offense-going on under the platform. Jenkins continued to deny he had been smoking anything other than a "Kool" cigarette. Jackson insisted he did not know what Jenkins had been smoking. The foremen prodded Jenkins to confess that he had indeed been smoking a "reefer," but Jenkins declined to do so. They also prodded Jackson to inform on Jenkins, also to no avail. 2 There were perhaps 30 or 40 employees at work on that Saturday. 3 I.e., the microsample room or "sand lab." 4 I.e., United Steel Workers of America, AFL-CIO, exclusive bargaining representative of these and all other of Respondent's Columbus. Georgia, production and maintenance employees. I Foreman Jones also conceded at the hearing that Griffin had previously intervened as a union grievance committeeman on behalf of another unit employee, unrelated to the instant episode. 6 Although Jones denies Griffin told him this, nevertheless, on the basis While Jenkins and Jackson were thus being questioned by Foremen Richardson and Jones, with Jenkins being urged to confess guilt to an offense which could cost him his job, and Jackson being prodded to inform on Jenkins, union grievance committeeman Griffin entered the office7 and-after asking and being told by Foreman Richardson that the men were accused of smoking "pot" on the job-in the clearest of terms indicated he (Griffin) was there to assist and represent the accused men in his capacity as union grievance committeeman. Although Jenkins and Jackson in no way denied or disputed this or indicated to the contrary or expressed any disagreement with what Griffin was saying, nevertheless Griffin was told by Foremen Jones and Richardson that it was none of Griffin's business, that nobody had sent for him, that he was not needed there, to "go back out and go to work, if we need you, we'll call you," and that the foremen would "send for you if we need you"; and the two foremen resumed their accusations to the men and demanding that they confess. Griffin continued to indicate that he was the Union's spokesman for the accused men and was there to assist them, as was their desire, as well as his right and duty. When Jenkins and Jackson were asked whether they wanted Griffin to represent them, they both indicated they did. Nevertheless, Griffin was again told that he had no business there and was ordered to leave. Another union grievance committeeman, Peter Averett, who had mean- while also come into the office, was likewise ordered to leave, and did so. Griffin, however, persisted that he had the right and duty to stay. Jones thereupon left, returning within a few minutes with Company Foundry Superinten- dents Hardy Clemens Hudson, Jr., and Wesley J. Estes. According to testimony of Hudson, Foreman Jones informed him that he had two men in the office they were "discussing a problem with" and that Griffin "started intervening." In the office, when Estes or Hudson asked Jenkins whether he had been smoking "pot," Jenkins continued to deny it. When-according to Respondent's witness, Foreman Richardson-Hudson asked the fore- men, "What kind of trouble [are you] having," they told him that Griffin insisted he had a right to be there although they had directed him to return to his job. Estes thereupon ordered Griffin, "Go on back to your job. If we need you we'll get you." Griffin continued to insist that he had a right to be there to represent the accused men and-according to testimony of Respondent's own witnesses Jones, Richardson, Estes, and Hudson-asked Jenkins whether he wanted Grifin there and Jenkins said "Yes." Superintendent Estes-according to the testimony of Respondent's witness Foreman Jones said that the Compa- ny had the right to talk to the men without Griffin being there,8 and Superintendent Hudson said to Griffin, "I'm going to give you five minutes to go back to work, and if of testimonial demeanor comparisons within the framework of the record as a whole I prefer and credit the testimony of Jenkins, a witness who, while of limited capability in the communicative arts, nevertheless stood by his testimony on sharp cross-examination, and impressed me as truthful under oath here. Griffin had entered a "few minutes" before, looking or ostensibly looking for a shovel or other tool or equipment, but had been referred elsewhere by his foreman. 8 According to Foreman Jones. either Superintendent Estes or Hudson (Continued) 35 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you don't, I'm going to fire you." Since Griffin continued to indicate the men had the right to have him there, he was summarily fired by Hudson, who then left. Thereupon, when Richardson reiterated to Estes that he had seen Jenkins "with a cigarette in his hands" and Estes asked Jenkins and Jenkins denied he had been "smoking pot," Estes indicated to Richardson that Jenkins was the "only one you can discipline," and Estes then left. Jones thereupon discharged Jenkins, and Jackson was told to return to work, which he did. It was in essence conceded by Foremen Jones and Richardson at the hearing that Griffin's described brief visit to the office-to which he would in any event have had to go to seek out his foreman (Richardson) to obtain permission to absent himself from his work 9 did not "inconvenience or handicap" Respondent's operations. Union Representative Strunk, appearing as Respondent's witness, likewise conceded that at no time did the Company assert that Griffin's temporary absence from work handicapped its operations. Several weeks after the described May I terminations of Jenkins and Griffin, a "3d step" grievance meeting was held between the Union and the Company concerning the termination, as a result of which, with the concurrence of the Company, Jenkins was reinstated with full seniority and backpay for the reason that the allegations of "reefer" smoking had not been sustained; but the Company refused to reinstate Griffin on the ground that he had been "insubordinat[e]" and "fail[edl to follow instructions of a supervisor" to return to work under the described circum- stances. The Union did not carry the matter to the "fourth" or arbitration step. 10 Respondent refuses to reinstate Griffin, continuing to maintain that his discharge was lawful and proper. B. Resolution and Rationale Under the circumstances described, I find and hold that Respondent's discharge of Griffin was not lawful or proper, since it was only because he sought to assist and represent two fellow-employees at an investigatory-disci- plinary interview fraught with peril to their jobs. Inasmuch also told Griffin that there was "no grievance 'cause no one was fired.' " I do not agree that the employees had no right to have their representative present until after they had been fired. See N.L.R.B. v. J. Weingartern Inc., 420 U.S. 251 (1975). 9 Cf. collective agreement, G.C. Exh. 4, art. Ill, sec. I. See also "Resolution and Rationale, " infra. "' The collective agreement (G.C. Exh. 4, art. V ("Fourth")) provides that if the Union and the Company "fail to reach a mutually satisfactory settlemen t of the grievance, the dispute may be referred" to arbitration at the desire of either side. (Emphasis supplied.) According to Union Representa- tive Jack Strunk, who testified as Respondent's witness at the instant hearing, he did not recommend arbitration because he had previously been unsuccessful in arbitrations in cases he regarded as similar or even "stronger." His testimony fully persuades me that his "investigation" into the circumstances of this case was woefully inadequate. II Cf. Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837(1971). 12 Especially where, as here. its alleged "investigation" of the facts has been woefully deficient. Thus, Union Representative Strunk conceded that although during the third-step grievance discussion Jenkins told him, not under oath, that he had not requested representation by Griffin, Strunk did not even ask Griffin that question, much less the foremen or others present in the described office discussion on May I. It will be recalled that all of the witnesses here-including Respondent's own two foremen and foundry as the employees were entitled to have Griffin present there as their union representative, and Griffin had the right to be there in that capacity, and Respondent denied the two accused employees as well as Griffin and the Union that right, Griffin's discharge for seeking to assert and insist on that right was plainly in violation of the Act. N.L.R.B. v. Weingarten, supra. Respondent raises a number of contentions in support of its discharge of Griffin. To begin with, it urges that the issues are beyond the reach of the Board since the Union failed to proceed with arbitration as it had the right to do under the collective agreement; and that the Board should defer to an arbitration "requirement" I in which, however, Respondent is now unwilling unconditionally to partici- pate. But the fact that a union does not proceed to arbitration under a collective agreement with regard to the discharge of an employee, even assuming it is "required" to do so, does not oust the Board of its jurisdiction and duty to administer and enforce the requirements of the Act. See Act, Section 10(a). Certainly the fear-so advanced by the Union here, appearing as a witness for Respondent Employer-that it might not succeed in such an arbitra- tion 12 does not oust the Board of its statutory enforcement obligations, which are for the protection of all employees and the public as well. It is noted that the fourth step or arbitration provision of the grievance procedure of the collective agreement (G.C. Exh. 4, art. V, "Fourth"), merely indicates that if a "mutually satisfactory settle- ment" of a grievance is not reached, "the dispute may" be arbitrated. (Emphasis supplied.) Thus, the arbitration step is not required or mandatory; and the contract does not provide that if that step is not pursued all rights and remedies-under the Act or otherwise-are extinguished or erased, doubtful as the legality of such a provision would be.' 3 Moreover, the right here involved is that of the employee Griffin, and the statutory vindication that of his fellow employees too as well as that of the public. Finally, Respondent and the Union were unwilling even at the hearing unconditionally to proceed with arbitration.' 4 Under all of the circumstances shown, I reject Respon- dent's contention that the arbitration provision of the superintendents-conceded the contrary under oath in this proceeding; namely, that Jenkins had indeed asked Gnffin to represent him. Jenkins' explanation, under oath here, that he said this to Strunk (while not under oath) at the third-step grievance discussion because he (Jenkins) felt "under pressure" to get his job back, rang true to me. (Furthermore, as already stated, even Respondent's witnesses conceded under oath here that Jenkins did in fact in their presence in the office on May I indicate he wished Griffin to represent him.) 13 Thus, if, for example, under an "elective" arbitration provision such as here, the union did not wish to press ahead with arbitration because it considered it too expensive, but instead relegated the employee to his cost free remedies before the Board under the Act, would the employee's charge or complaint be required to be dismissed no matter how meritorious and the Act's policies and provisions pushed aside? 14 At the hearing, Union Representative Strunk indicated that in view of what he now knows (i.e., testimony heard by him at the instant hearing), the Union would be willing to proceed with arbitration. Although such a procedure would be an egregious waste of time and money, in any event Respondent declined to agree to arbitration at this time in view of the fact that its potential backpay exposure had meanwhile increased in the interim between the third-step grievance discussion and this hearing. Respondent thereupon elected, as it indicated it did at the outset of the hearing, to proceed with this litigation. 36 COLUMBUS FOUNDRIES, INC. collective agreement is a bar to this proceeding. Cf. The Scam Instrument Corporation, 163 NLRB 284 (1967), enfd. 394 F.2d 884 (C.A. 7; 1968), cert. denied 393 U.S. 980 (1968); Tulsa-Whisenhunt Funeral Homes, Inc., 195 NLRB 106 (1972), enfd. 84 LRRM 2300 (C.A. 10, 1973); United Parcel Service, JD- 172-76, p. 9, fn. 20 (unappealed); Local 771 v. RKO General, Inc., 93 LRRM 2228, 2233-35 (U.S.D.C., S.D.N.Y., 1976). The Board has recently held or reiterated that it will not defer to a contractual grievance- arbitration machinery in a case involving an employer's alleged violation of the Act through suspension of a union committeeman because of his processing of employee grievances. Nissan Motor Corporation in U.S.A., 226 NLRB 397 (1976). See also concurring opinion of Board Member Penello in Columbia Corrugated Container Corp., 226 NLRB 147 (1976), declining to defer to arbitration where- as here-the union had already indicated that the dis- charged employee could not seek redress under the grievance-arbitration procedure because of the supposed merits of the particular situation in which the employer regarded the employee as having quit. Respondent next insists that Jenkins and Jackson-the two laborers faced with incipient loss of their jobs-did not request that Griffin assist or represent them. The short answer to this is that the facts are to the contrary. Not only did the two laborers each expressly so request, on the way to the office, but so did Griffin on their behalf in the office. Indeed, each of Respondent's own supervisory witnesses- its Foremen Jones and Richardson, as well as its Superin- tendents Estes and Hudson-explicitly conceded that the laborers stated in their presence, in response to a question by Griffin, that they desired Griffin to represent them. Respondent further contends that Griffin did not obtain permission from Respondent to leave his work or to remain in the office during the episode with the laborers. Addressing this contention, it is at the outset to be observed that Griffin's described activities were clearly in the exercise of protected concerted activities under the Act 15 and that, indeed, Respondent at the hearing conceded that he had the right to be there in his capacity as union grievance committeeman. Respondent nevertheless insists that Griffin was required to obtain its permission to leave his work station as well as to come to and remain in the office. It is noted that the collective agreement (G.C. Exh. 4, art. III, sec. I) provides that "Members of the Union Grievance Committee shall be granted permission to carry out their obligations by their foreman, providing their absence at the time will not inconvenience or handicap the operations of the department." 16 Here, as in Guerdon Industries, 199 NLRB 937 (1972), it was necessary and appropriate for the union committeeman to leave his work station to see his foreman-in this case Richardson- who was already in the nearby office. Where else could he be "granted [the] permission" which Respondent was required ("shall," supra) to allow? Furthermore, as shown, it was in essence conceded by all that Griffin's work (one of a IS Cf. N.LR.B. v. Washington Aluminum Company, Inc. 370 U.S. 9, 16-17 (1962): Time-O-Maic, Inc. v. N. LR.B., 264 F.2d 96, 101-102 (C.A. 7, 1959) (employees leaving work area, without permission, to speak to plant officials in office regarding grievance); N.LR.B. v. J. I. Case Company, Beltendorf Works, 198 F.2d 919, 921-922 (C.A. 8, 1952), cert. denied 345 U.S. 917 (1953). There is no indication here that Griffin's brief absence from the end group shoveling dirt or sand) was not of such a character that its brief interruption "inconvenience[d] or handi- cap[ped]" Respondent's operations. Respondent's conten- tion that Griffin did not obtain its permission to be in the office is in essence a semantical roundelay, since it was of course perfectly apparent (and indeed concededly known to Respondent's officials and supervisors) why Griffin was in the office-where his foremen had taken Jenkins and Jackson; namely, to carry out his responsibilities as union grievance committeeman and to assist Jenkins and Jackson in order to attempt to prevent their discharge. Further- more, Respondent's repeated statements to Griffin in the office that he was not needed there, would not be permitted to remain there, and that he leave and return to work, constituted of course a denial of permission for him to remain. Indeed Griffin did not obtain Respondent's "permission" to remain-but only because Respondent refused to give him permission to remain, although Respondent conceded at the hearing that he had the right to be there. Under these circumstances, it is little short of ludicrous for Respondent now to insist, as it did at the hearing, that the only reason it discharged Griffin was because he did not receive permission to be in the office, while at the same time conceding-as it also explicitly did at the hearing-that Griffin had the right to be there and that it would have given him permission to remain had he but asked for it. What else was he there for? And what else was he doing in vainly insisting that he had the right to be there? It is Respondent's refusal to permit him to stay which is the very violation here charged. Respondent's attempt now to justify his discharge upon the ground that he did not obtain the very permission which Respondent refused, while at the same time conceding he had the right to be there, thus sets the facts on their head. Respondent next contends that when Griffin entered the office there was no longer any need for his presence since the interview of Jenkins and Jackson had been completed or "virtually ... completed." I find this to be contrary to the facts as established at the hearing. To begin with, Jenkins and Jackson were still being questioned, and they continued to be questioned thereafter although Griffin was not permitted to participate in the process that was going on. Even according to the testimony of Respondent's witness, Foreman Jones, at the point when Griffin entered the office Jones and his fellow Foreman Richardson were "waiting on Jenkins to see what he would say"-thus, the foremen's interview of the laborers had not ended; indeed, it was still at a critical stage. And the simple fact is that neither Jenkins nor Jackson had been told the interview was over nor had they been told to leave. Furthermore, it was only considerably later, after Foundry Superintendents Estes and Hudson were called to the office and at least Jenkins was further questioned, that the nature of the discipline-i.e., discharge in the case of Jenkins-was determined and announced. Under these circumstances, not only is it plain that the interview had not been of his particular shovel involved any stoppage or interruption of the work of others or even significantly of his own. 16 The collective agreement (G.C. Exh. 4, art. V, sec. 3, "First") further stipulates that the first step of the grievance proceeding shall be "lbletween the employee affected, or a member of the Grievance Committee, or both, and the Foreman." 37 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concluded before Griffin entered the office, but it is clear that if Griffin had been permitted to participate as he desired he might very well have saved Jenkins the job to which he was subsequently reinstated with full seniority and backpay. Foreman Jones acknowledged that possibili- ty at the hearing by conceding that if Griffin had been permitted to remain and participate he could have presented a number of contingencies which would have saved Jenkins' job. Finally, Respondent's Superintendent Estes conceded that neither Foreman Richardson nor Foreman Jones indicated that they were finished talking to Jenkins and Jackson. Under these circumstances, I reject Respondent's contention that the interview of Jenkins and Jackson had been completed before Griffin entered the scene. Finally, near the close of the hearing, Respondent's knowledgeable Personnel Director Quinn indicated that it was not Respondent's contention that Griffin had no right to be there, but that if Griffin had requested "permission" to stay the Company could then have "cut off the investigation" or had none at all. While this observation betokens an astute reading of Weingarten, supra, it is wide of the mark in application to the facts here. To begin with, as already discussed, Griffin had repeatedly been denied permission to stay, even though he was obviously there for that and no other purpose and he as well as the two laborers had repeatedly pointed that out-the laborers on their way to the office, and the laborers as well as Griffin in the office. Under these circumstances, it was Respondent who elected to proceed with what Quinn characterizes as "the investigation" and who elected not to have none at all or to "cut [it] off." 17 Respondent's Foreman Jones, testifying as its witness, candidly acknowledged that although he knew Griffin to be a union grievance committeeman, he (Jones) was unfamiliar with and had never seen a copy of the collective agreement, and had never been told about and was therefore unaware of the requirement therein (G.C. Exh. 4, art. III, sec. 1) that Griffin "shall be granted permission to carry out [his union grievance committeeman] obligations by [his I foreman." Even if Jones' further candid testimony is true that he felt that Jenkins was "better" able to speak for himself than Griffin could-an estimate with which, after observing and listening to both Jenkins and Griffin, I am inclined to roundly disagree-and that Jones did not "need" Griffin since "On Jenkins speaking for himself, I believe he could have done it," it is not for an employer to make such judgments. Where he does, so as to exclude union representation, he violates the Act's requirement and the mandate of the Supreme Court in Weingarten-a statutory requirement that the Board in the underlying case (Mobil Oil Corporation, 196 NLRB 1052 (1972), enforce- ment denied 482 F.2d 842 (C.A. 7, 1973)), reversed, in effect, 420 U.S. 251 (1975)-indicated results in a "serious violation" where disobeyed, and one which the Supreme 17 I also disagree with Quinn's ultimate contention that a union grievance committeeman has no role whatsoever to play on the issue of what discipline is to be meted out in the context of such an ongoing investigatory- disciplinary interview as here described, with employees suspected or accused of work rules infraction sufficiently serious as to imperil their hold on their jobs, and with disciplinary implications and remarks interlarded with the investigatory questioning so as to make unfeasible any unscram- Court gave no indication it regards less seriously. To the contrary, the Court has emphasized that the right of employees to the kind of representation they here vainly sought "painly effectuates the most fundamental purposes of the Act" (Weingarten, supra, 420 U.S. at 261), and so it must be regarded here. It is accordingly concluded that by its described actions in refusing to permit its employees Jenkins and Jackson to be represented by their designated union grievance com- mitteeman Griffin at their described office interview of May 1, and by discharging Griffin for seeking to act as such representative, Respondent violated Section 8(a)(l) and (3) of the Act. Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW 1. Jurisdiction is properly asserted in this proceeding. 2. By refusing to accede to lawful requests of its employees William K. (Q.) Jenkins, Jr., and Adam S. Jackson, and said employees' duly designated union representative, Respondent's employee Willie Griffin, prior to as well as during Respondent's interview of said employees on May 1, 1976, concerned with their continued employment by reason of suspected or alleged inproprieties calling for discharge or other discipline, at times when the employees reasonably believed that said interview might result in discharge or other disciplinary action, under the circumstances detailed and found in "II," supra, Respon- dent interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of rights guaranteed in Section 7, thereby engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. 3. By terminating the employment of its employee Willie Griffin on May 1, 1976, and failing and refusing to reinstate him in his job since that time, because Griffin as the union grievance committeeman representative of said employees Jenkins and Jackson sought to represent them at said interview on May 1, 1976, Respondent has discriminated in regard to the hire and tenure of employ- ment and the terms and conditions of employment of employees so as to discourage membership in a labor organization, and continues so to do, in violation of Section 8(a)(3) of the Act; and has further interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of rights guaran- teed in Section 7, thereby engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. Said unfair labor practices have affected, are affect- ing, and unless permanently restrained and enjoined will continued to affect, commerce within the meaning of Section 2(6) and (7) of the Act. bling of the two. Under the circumstances here, at any rate, the underlying situation and the discipline if any to flow therefrom constituted a single, continuous, indivisible, and uninterrupted stream whose course and progress was not in fact bifurcated or separable, or dammed or diverted at any point. It is difficult to imagine what a disciplinary interview of an employee is if one which results in his summary discharge is not. 38 COLUMBUS FOUNDRIES, INC. REMEDY Respondent should be ordered to refrain from continu- ing to violate the Act in the respects found, as well as to reinstate Willie Griffin with full seniority and with backpay plus interest to be computed as set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), preserving and making available its books and records to the Board's agents for backpay computation and compliance determi- nation purposes. Since, as has been frequently reiterated,'8 the discharge of an employee for attempting to assert a right guaranteed under the Act strikes at the heart of the Act, the order should contain a provision requiring Respondent to cease and desist from infringing upon rights secured to employees under Section 7 of the Act. Respondent should also be required to post the usual notice to employees. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: ORDER19 Respondent Columbus Foundries, Inc., Columbus, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing or failing to accede to the request of any employee, made personally or through his agent or representative, to be represented by a labor organization at any interview or meeting held by the Employer with the employee where the employee has reasonable grounds to believe that the matters to be inquired into or discussed may result in his discharge or disciplinary action. (b) Refusing or failing to accede to the authorized request of any labor organization or its representative to be present and represent any employee of the bargaining unit, at any interview or meeting held by the Employer with any such employee where the employee has reasonable grounds to believe that the matters to be inquired into or discussed may result in his discharge or disciplinary action. (c) Requiring any employee to take part in such interview or meeting without the requested labor organization representative. (d) Discharging, terminating, laying off, suspending, disciplining, or refusing or failing to reinstate, rehire, or reemploy, or so threatening, an authorized employee acting or attempting to act at such interview or meeting as the labor organization representative of the employee being interviewed by the Employer. (e) In any other manner interfering with, restraining, or coercing any employee in the exercise of the right to self- organization; to form, join, or assist any labor organiza- tion; to bargain collectively through representatives of his own choosing; to engage in concerted activities for the purpose of collective bargainipg or other mutual aid or protection; or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to Willie Griffin immediate, full, and uncondi- tional reinstatement to his former or substantially equiva- lent position, without prejudice to his seniority and other rights, privileges, benefits and emoluments, including interim pay raises and also currently applicable pay scales; and make him whole for any loss of pay (including overtime, holiday, and vacation pay, and insurance benefits and reimbursements if any), together with interest, in the manner set forth in the "Remedy." (b) Forthwith expunge from the personnel and employ- ment records of Willie Griffin all statements, notations, entries, and references that he was terminated by Respon- dent, on or about May 1, 1976, for any work-related fault, deficiency, or reason, and refrain from any such communi- cation, written or oral, to any other employer or prospec- tive employer or agency. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, wage scale records and notations, social security payment records, timecards, personnel records and reports, and also all other records and entries necessary or appropriate to determine the amounts of backpay and other sums and benefits due under and the extent of compliance with the terms of this Order. (d) Post at its premises in Columbus, Georgia, copies of the attached notice marked "Appendix."20 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and 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 by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. '8 See, e.g., N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). 19 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. 20 In the event this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice "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 require any employee to take part in an interview or meeting without union representation if the employee requests it in the reasonable belief that the matters to be inquired into or discussed may result in his discharge or discipline. WE WILL NOT discharge, terminate, suspend, or discipline any union grievance committeeman or other 39 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union representative in our employ, or refuse or fail to reinstate or rehire him, or threaten to do so, for seeking to be present and represent any employee at any such interview or meeting, at the request of the employee to be interviewed, whether made personally or by the employee's duly authorized agent or representative. WE WILL NOT in writing or orally indicate to any other employer or prospective employer or agency that any such discharge occurred for any such reason. WE WILL NOT in any other manner interfere with, restrain, or coerce any employee in the exercise of his right to self-organization; to form, join, or assist any labor organization; to bargain collectively through representatives of his own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. WE WILL permit our employees to have their union representative present at any such interview or meeting if they so request. WE WILL offer Willie Griffin immediate, full, and unconditional reinstatement to his former or substan- tially equivalent job and seniority with us, and WE WILL pay him for any wages and benefits lost by him because of our discharge of him on May 1, 1976, plus interest; and WE WILL forthwith remove from our records all indications that Willie Griffin was discharged by us on or about May 1, 1976, for any reason due to his misconduct, misbehavior, or fault. COLUMBUS FOUNDRIES, INC. 40