The Mead Corp.

MEAD CORP . " 323 The Mead Corporation-Publishing Paper Division- Escanaba and United Paperworkers Internation- al Union Local 110, AFL-CIO-CLC. Case 30- CA-6270 30 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 13 June 1983 Administrative Law Judge Burton S. Kolko issued the attached decision. The Respondent filed exceptions and a supporting brief.' The Board has considered the record and the de- - cision in light of the exceptions and, brief and has decided to affirm the judge's rulings, findings,, and. conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent- violated Section 8(a)(1) and (3) of the Act by imposing.a 3- day suspension on Roger Sundling for refusing an order to work beyond, the end of his shift. The judge found that the Respondent's discipline was lawful both because it punished Sundling for en- gaging in protected concerted activity and because it entailed disparate treatment based on Sundling's activity as a union steward. The Respondent con- tends that it lawfully disciplined Sundling for in- subordination. We agree with the Respondent. Sundling was a tour millwright at the Respond- ent's Escanaba facility. The Union has represented millwrights and other maintenance employees at the facility since 1948.. In 1979 Sundling became the Union's vice president and chief steward. In this capacity, he filed over 100 grievances, 5 on his own behalf, and successfully brought several em- ployee complaints before Federal and state' agen- cies. Tour millwrights worked rotating schedules to assure the Respondent of the availability of round- the-clock maintenance and repair of its equipment. On 23 December 1980 Sundling was one of three millwrights working the 10:30 p.m. to 6:30 a.m. shift. Sometime around-.midnight,, he was. called from his normally 'assigned. area to another area where a.dryer on one of the plant's two paper ma- chines had, lost a bearing. This malfunction shut down the machine and created an emergency situa- tion with considerable . potential- loss • to the, Re- spondent. Because emergency repairs would take, at least 6 hours, the"Respondent's management decid- ed to minimize lost production time by moving up i The Respondent has requested oral argument The request is denied , as the record, the exceptions and the brief adequately present the issues and positions of the parties a scheduled maintenance shutdown of the paper machine from 26 December to 24 December. Shortly after midnight, -Supervisor Kroll informed Sundling, as steward, about the schedule change. - Sundling and tour millwrights Terry Scheene- man and Dan Sherman worked on the damaged dryer for approximately an 'hour before Sundling - was.called back to his original work area. Scheene- man -and. Sherman continued working on the im- paired machine. The Respondent called other mill- wrights to come in to, work, but it was unable to enlist a sufficient number to continue the repair work and to perform the rescheduled maintenance work during =the next shift. Supervisor Van Drese then sought out each millwright on the current shift to ask him' to continue working on the repairs beyond the end of his shift..Scheeneman 'volun- teered to continue working. Sherman declined to do so, but then Van Drese said he Was forcing Sherman -over. -Sherman stated he was ' working under protest, but he did continue to work. Van Drese contacted Sundling shortly before his shift was to-end: Sundling's relief, Ken Ziems, had already clocked in. When Van Drese asked Sun- dling if- he would continue working into the next shift, Sundling refused. Van Drese then told him he was forced over. Sundling argued that the collec- tive-bargaining' 'agreement precluded his being forced over once Ziems had clocked in. Van Drese warned Sundling . that disciplinary 'action could result if Sundling refused to work. 'Sundling re- plied; "Be my guest;" punched the timeclock, and left the plant. Late` that morning, 'Van Drese called Sundling at home and" again stated that Sundling' could be disciplined for his refusal to work. Sun- dling again answered,' "Be my guest," "and said he would file charges with the Board. Repairs on the dryer continued through the next shift. Approximately `l hour after Sundling left, plant supervisors discovered that the dryer's jour- nal had been damaged by the bearing and would have to be ' replaced. As a result, all of the sched- uled maintenance work could not be completed. Millwrights continued -to work on the dryer throughout the, morning of 24 December, but the paper machine remained inoperable that day. On 29 December Sundling met with representa- tives of the Respondent. He reiterated his interpre- tation of the contract that management, could not force over ,an employee whose relief had arrived. On 30 December the Respondent's officials gave Sundling a 3-day suspension for insubordination. - The Respondent had a , well-established policy governing insubordination.- A negotiated work rule provided' 'that 'discipline up 'to and' including dis- charge could result from insubordination. The Re- 275 NLRB No. 52 324 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD spondent's typical practice has been to suspend an insubordinate employee for-1 to 4 days. The policy with regard to forceovers -was equal- ly well established. All. tour millwrights had been- forced over when the Company changed wiring. Millwright 'Scheeneman had once been forced over to repair a crane: One-.of the Respondent's supervi- sors, in uncontroverted testimony, acknowledged that he had forced over tour millwrights even when their reliefs had' arrived. Sundling • was the only employee' who had refused. an order forcing- him over: , The judge found- Sundling's refusal to work to be an'assertion of a reasonably. based contractual right and as such was concerted activity against. which no discipline could be. imposed. Additionally, he concluded that - Sundling had been the victim, of discriminatory treatment _ in retribution: for his ac- tivities `as the Union's - steward. The judge based this. conclusion on findings that -the Respondent had no consistent policy for forcing over employ- ees and, no. longer had an emergency , situation when it attempted to force over Sundling., We need not decide whether Sundling's protest against the forceover was concerted or based on a good-faith. interpretation , of the contract. ' The means of protest is a_t issue here. Contrary to the judge, we, find that the Respondent disciplined Sundling • solely for unprotected insubordination. We further find that the suspension he , received . was not' discriminatorily motivated. ' - There is no, evidence. here that the Respondent disciplined '. Sundling for the content of his, com- plaint.. His manner. of complaining was' the sole, reason for his suspension .2 In this regard, we em- phasize that , Sundling .refused a direct' forceover order while still on the job. Had he.followed co-. worker Sherman's example and worked under,pro- test,, he could -have subsequently grieved the order.; Eschewing.thetgrievance.system or-other protected 2 Benjamin Electrical Engineering, 264 NLRB 1061 (1982) Member Dennis agrees that Sundling 's refusal to obey the forceover order was unprotected Art 7 of the collective-bargaining agreement- broadly forbids the Union or'any employee from "collectively, concer- tedly or individually induc[ing], engag[ing] or participat[ing], directly or ' ._, indirectly , in any strike, slowdown, stoppage or other interference of pro- duction or work , "' The -contractual. provision Sundling -relied -on ("At the end of a shift no tour worker shall leave his place to wash up and dress until his relief has changed his clothes atid 'reported to take on the responsibilities of the position ") is not reasonably susceptible to an interpretation-exempting Sundling's refusal to work overtime' from the - no-strike clause In-fact, the provision Sundling cited is wholly unrelated to-the question whether an employee has the right to refuse an overtime assignment ` • Member Dennis also finds that Sundling's conduct did not 'constitute concerted activity under NLRB v 1 City Disposal Systems, 104 S Ct 1505 (1984) The City Disposal Court held that "an honest and reasonable invo- cation of a collectively bargained right constitutes concerted activity " Id at 1507 Here, as stated above, Sundling's refusal to woik overtime cannot be considered a reasonable invocation of a right secured-by the collective-bargaining agreement forms of protest, however, Sundling sought to dic- tate the terms of his employment by refusing to honor the Respondent's mandatory forceover prac- tice. The Board has repeatedly held such conduct to be unprotected insubordination and legitimately subject to discipline.3 We also find insufficient proof of antiunion `dis- crimination. First, the record is devoid of any evi- dence of general union animus or-specific animus against Sundling's stewardship. His status as,. stew- ard certainly did not provide immunity from disci- pline for his= insubordinate refusal to obey a work order.4; Second, the Respondent had a legitimate need to force over millwrights to perform the emergency repair- work., It had been unable to secure the services of other millwrights not in the plant. Consequently, it needed all three millwrights then in the ' plant to work beyond their shift. Con- trary to the judge's erroneous factual finding, un- controverted testimony established that the emer- gency:repair situation continued well into the next shift and justified the forceover 'orders. -Finally, there is.'no evidence of disparate treatment. Re- spondent had a past practice of forceovers.' It--did not single out Sundling fora forceover. Although no employee had ever refused a direct forceover order, the Respondent had a well'-defined policy governing insubordination and it stayed within the bounds of that policy by suspending Sundling. Based= on the foregoing, we conclude that the Respondent lawfully suspended Sundling solely be- cause he engaged -in insubordinate conduct unpro- tected by the Act. - Accordingly, we shall dismiss the complaint. ORDER - The complaint is, dismissed. ' . See , e g , Yellow Freight System, 247 NLRB 177 (1980), Chevron Cheimcal Co , 191 NLRB'292 (1971) 4 G & H Products, 261 NLRB 298.(1982) DECISION .BURTON S. KOLKO, Administrative Law Judge. On January 12, 1981, Rodger Sundling filed a charge against his employer,' the 'Mead Corporation Publishing Paper Division (Respondent' or Mead), in Escanaba, Michigan. The charge was a result of a' 3-day suspension imposed on Sundling by the, Company for alleged' insubordination on Sundling's part _ Specifically, the complaint issued on M. 26 by the Regional Director for` Region 30 alleges that Respondent pondent had engaged in 'conduct, violative of Section 8(a)(1) and,( . 3) of the' National- Labor Relations Act (the Act). A hearing was held by me on July 14, 1982 in Escanaba, Michigan. Based on the hearing, the demeanor of witnesses during the hearing, and the post- MEAD CORP 325 hearing briefs, I find that Respondent has violated Sec- tion 8(a)(1) and (3) of the Act. Background In, 19801 Respondent 's facility' was divided into -five maintenance areas. Area consisted I of the -number I mill and number I paper machine. Area 2 housed the number 1 mill and number 3 paper machine. Area 3 was made up of the boiler -house, steam plant area, and outside areas including the sledge pond , wood area, and unloading . dock. Area 4 included the craft mill and lime kiln; and area 5 covered the truck garage There were approxi- mately 100 maintenance workers, including millwrights, pipefitters, welders; machinists , carpenters, painters, and mill grinders Of those, 52 employees were millwrights, who were responsible for maintaining and 'repairing the' various equipment in the five areas . Millwrights were di-. vided into different classes according to training and ability, with first class being the most experienced. Most of the millwrights were scheduled to work first shift, with tour 'millwrights providing extra coverage on -all three shifts. Tour millwrights had a rotating schedule _ around the clock (a typical tour, schedule would require the millwright to work 7 days on day shift , then time off, followed by a tour on midnight shift and eventually afternoon shift). Tour millwright coverage of the areas, varied slightly from the normal millwright's area. That is, there was one tour millwright for area 1, one for area 2 and one for areas 3, 4, and 5 . The maintenance employ- ees were and are represented by United Paperworkers International Union Local #I 10, AFL-CIO-CLC (Local 110),• which has had a series of collective-bargaining agreements with Respondent. The Incidents Leading to Sundling's Suspension On December 23, 1980, Rodger Sundling, a tour-mill- wright, arrived at work at 10:10 p.m., approximately 20 minutes before the start of his shift Even before he punched in, he helped put out a fire on the number 1 paper machine in area 1 . Sundling's normal area of work- was area 4, where he proceeded, after he punched in-at 10:30 p in Sundling remained in his area until approxi- mately midnight, when he received a call from the craft mill control room, saying that the machine he had previ- ously worked on had lost a bearing and he was to return, there When Sundling arrived at area 1, two other first- class tour millwrights , Dan -Sherman from area 1, and Terry Scheeneman from area 2, were already there as were management personnel,-John Kroll and Irv Hamil- ton Kroll was the mechanical plant maintenance superin- tendent. Sundling observed a bearing problem on the number 19 dryer fan of the number 1 paper machine.,' Sundling testified that he helped with the bearing for ap- proximately 1 hour. He noted that the work area is' only 3 feet wide between the gears thus enabling only a few people to work at a time. , - ' While Sundling was in area 1, in his capacity as union' steward he had a conversation with John Kroll concern- ing what procedure would be followed to deal with the i All dates refer to 1980 unless otherwise indicated bearing situation . Twice Sundling asked Kroll if he would be calling people out.2 Kroll responded that man- agement was going to start calling people at 5 am to come out at 7 a.m. so they would -get a jump on the down schedule (Tr. 68,, LL. 20-23). Kroll did not deny having this- conversation. Kroll's statement signified to Sundling that the sched- uled maintenance shutdown of December 26 (GC Exh 8) had been rescheduled to begin on December 24. Sun--' dling and all employees were aware that the number 1 paper machine had been scheduled to go down at 3:30 p.m. on December 24 for the Christmas shutdown, that there would be no production on December 25, and that maintenance . was scheduled on December 26. Kroll thus indicated that the maintenance would be started as early as 7 a.m. on December 24, suggesting to Sundltng that there would be no more production that ,day. Respo'id- ent witnesses Donald Whitens and Gary Van Drese con- firmed ,this change in plans, noting that as of midnight on, December, 23, the decision was made to move the 'shut- down schedule up (Tr. 28, LL. 10-15; Tr 156, LL. 5- 11). Van Drese pointed out that this would save lost pro- duction time, allowing production on December 26 After Sundling had worked on the number . 1' paper machine for an hour, at approximately 1:30 a.m .,` he re- ceived a call-on his pager` to return to area 4. A problem with lime kiln required his attention . Since Sundling had to notify his supervisor Gary Van Drese that) he was leaving the job; he tried on numerous occasions' to reach him, both through the maintenance office and on the phone (Tr. 67, LL. 6-11). Finally, Sundling left a mes- sage for Van Drese and returned to area 4. Sundling spent the remainder of his shift attending to a,problem at the lime kiln- and then looking ;for a , part for the reeves drive unit,' also in area 4. The reeves drive problem did- not actually come to fruition, however. Sundling did not return to nor hear anything - regarding 'area 1 after 1.30 - a:m. (Tr. 72, LL. 5-8). His -next contact with manage- ment came ' at 6.30 a.m., when he bumped into Gary Van Drese at ,the timeclock. ' - - Suhdling testified he left his work area at 6 .20 a.m, and drove the company .pickup to the timeclock alley, where he was relieved by his "relief' Ken Ziems (Tr. 72, LL. 19-25, Tr. 73, LL. 1-14). Sundling , explained to Ziems the activities of the evening and then went 'to punch out.- It was at this time that he encountered Van- Drese, who.asked if Sundling' wanted to work over into the next shift Sundling replied no; and Van Drese in- formed the employee that he was'forced over Sundling told Van Drese that there was no way he was going to be forced over, because his relief was in. Sundling point- ed out that'they had negotiated a contract, and specifi- cally put ' in the.-word relief for this reason-to 'be. re- lieved and go home. Van Drese'told Sundling he would be making a mistake if he punched out and he could re- ceive disciplinary action. Sundling kept walking, said "Be my-'guest" and then punched out (Tr. 74, CL.'8-14, 2 The call-out procedure is invoked when extra help is needed People are, called from the overtime list to come in, but they have a right to refuse 326 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD 19-24). Van Drese does not dispute these facts (Tr. 161, LL. 13-22). The Suspension Shortly after Sundling arrived home, he ate breakfast and went to sleep. He was awakened by a phone call ',from Gary Van Drese. There was a dispute at trial as to whether Van Drese initiated the call or whether Sun- dling left a message for Van Drese to call him , but this is an irrelevant point. There is no dispute as to what was said during the phone call. Van Drese told Sundling that he was not supposed to go home and that there would be disciplinary action because he did . Sundling again re- sponded, "Be my guest" and said he would file charges with the National Labor Relations Board. Sundling stated that there had been no emergency but that they were trying to force him over anyway. On December 29, Sundling - requested a meeting with management. He testified that he asked for the meeting because he knew he was going to get a reprimand and he wanted to avoid it. In addition to Sundling's conviction that he was enforcing the contract , he had found out ear- lier that Ken Ziems, his relief on December- 23, had never been asked to work on the-number 1 machine. In attendance at the December 29 meeting was John Kroll, Don Whitens, assistant maintenance superintendent, Wil- liam Brower, chief union steward, and Sundling. Sun- dling told Kroll that he would be breaking the contract if he issued a reprimand for the December, 23 incident. Sundling ' asked why his relief had not been asked to work if there was an emergency situation that morning. He also pointed out that although management had known about the breakdown at 11 p.m., the call out for workers to' come in and help was for 7 a.m.,, the next day. Kroll did not respond to Sundling's arguments. The, next day, December 30, Sundling was called into work early. He received a 3-day suspension for insubor- dination at that time . Although Van Drese's signature appeared on the disciplinary order, Van Drese did not participate in ' the December 29 or December 30 meet- ings. The 8(a)(1) and (3) Charges The General Counsel alleges that Respondent violated Section 8(a)(1) and (3) of the Act by issuing a 3-day sus- pension to Rodger Sundling. The charge is that Sundling was suspended as a result of discrimination against him for protected concerted activity. Respondent argues that the suspension was.based on insubordination, that is, re- fusing to follow the direct order of a supervisor. Much of the testimony at trial dealt with article 18 of the current collective-bargaining agreement. Article 18 is entitled, "Tour & Day Workers." The particular line dis- puted in this case reads: At the end of a shift no. tour worker shall leave his place to . wash up and dress until his relief has changed his clothes and reported to take on the re- sponsibilities of the position. Sundling indicated at trial that his understanding of the above clause was that once his relief had taken over, he could go home. His interpretation of this clause had strong support from the Union. Richard LaCosse, Local 110's president, credibly testified that they felt that Sun- dling had been properly relieved and he should not and could not have been forced over. The Union wrote to Dennis Shook (the manager of Labor. Relations at Mead at the time in question) on January 19, 1981, concerning the forceovers of tour workers and other subjects. The Company never responded to the forceover issue al- though the other major issue on the use of tools was re- solved. Later that year, a grievance was filed as a result of a forceover. on August 7. The grievance was settled. This information allows us to reach a conclusion on the first level of inquiry in this case-was Rodger Sun- dling engaged in protected concerted activity? The Board had long held that complaints made or action taken for the purpose of requiring compliance with the provisions of a collective-bargaining agreement, even if by a single employee acting alone, fall within the catego- ry of concerted activity which is protected by Section 7 of the Act.3 Sundling's action was based on the collec- tive-bargaining agreement ; he had a reasonable basis for believing that his understanding of the terms of the col- lective-bargaining agreement were those that had been agreed on (in fact the -Union agreed with his interpreta- tion); and his action had a clear impact on other employ- ees.4 1 It is irrelevant whether Sundling's interpretation was correct; the Board has long held that employees who pursue in good faith an alleged mistaken interpretation'of a collective-bargaining agreement are nonetheless still en- gaged in protected activity and do not forfeit the protec- tions of the Act.5 Without a doubt, Sundling's actions were protected concerted activity which were clearly defensible. Our second level of inquiry deals with whether Sun- dling was a victim of disparate, discriminatory treatment. A review of Sundling's record as chief union steward lends suspicion that he may have been such a victim. Rodger Sundling has been employed by Respondent for 13 years, 11 of those which were spent as first-class millwright on tour shift. In 1979, he was elected to the 2- year position of vice president and chief steward of Local 110. In this capacity, Sundling filed in excess of 100 grievances, proving himself to be one of the most active stewards in Local 110. He has also filed approxi- mately five grievances on his own behalf. In addition to his grievance activity, Sundling invoked the processes of numerous Federal and state agencies both in his capacity as an individual "and as a union official. Initially, Sundling contacted the U.S. Department of: Labor, Wage and Hour. Division in 1974 concerning an overtime problem. Sundling testified that he first brought the problem-to the attention of maintenance Superintendent John Kroll, 3 Schneider's Dairy Co, 248 NLRB 1093 (1980), Ernst Construction, 212 NLRB 78 (1974) , 4 NLRB v John Langenbacher Co, 398 F 2d 459 (2d Cir 1968), Schnei- der Dairy Co, supra 5 Outboard Marine Corp, 253 NLRB 486 fn 2 (1980), Standard Aggre- gate Corp, 213 NLRB 154 (1974) MEAD CORP but to no avail (Tr. 54,'LL-.- 16-18). As a result of his contact with the Wage - and Hour Division, Sundling was'- awarded overtime pay. Sundling also contacted the Department of Labor in 1979, this time on behalf of apprentices seeking overtime pay. On this occasion, Sundling informed both Supervi- sor Gary Van Dr`ese and Manager of- Labor Relations Dennis Shook of the action he was about to take (Tr. 55, LL 19-23). Regarding this contact, -the employees re- ceived $2000 in back wages (Tr. 56, LL, 3-4). As'chief. steward , Sundling also visited the State of Michigan's Occupational Safety and - Health Administration in, May 1979. There, Sundling complained about the speed and safety of a reel drum. Following his complaint and the subsequent investigation , Respondent was fined (Tr. 56, LL. 21-23). In addition to the instant matter Rodger Sundling filed three unfair labor practice charges with Region 30 in 1979. These charges all concerned Respondent's alleged failure to abide by the collective-bargaining . agreement. One of these charges is still -pending. Continuing his pur- suit in 1980, Sundling once again contacted the State of Michigan, at which time he represented an employee at an employment compensation hearing with Respondent. Sundling's efforts resulted in the employee receiving un- employment compensation (Tr. 60, , LL. 1-4). At is clear that Rodger Sundling has actively participat- ed in protected concerted activity throughout his em- ployment at Respondent , all of which Respondent was aware. It is equally clear that Sundling had a high suc- cess rate in his endeavors. If ever there was a target 'for potential discrimination, Rodger Sundling was one.,. - Other incidents lend credence to the finding that Sun- dling's suspension was in'violation of the'Act. Although the company insisted'that Mead was in an emergency sit uation when the number 1 ' paper machine had broken down thus necessitating Sundling 's forceover, Sundling's relief Ken Ziems, was` never asked 'to work on the ma-. chine. Further, the machine had been scheduled to -be shut down for maintenance work on December- 26. -By moving the maintenance date up to December-24, Mead was able to 'save most, if not all, 'of the machine's daily production. It is also obvious that the' Company does 'not have any clear policy on forcing tour workers to work overtime. Testimony was taken at 'trial over the objection of Re- spondent's attorney regarding incidents in 1976 and 1977 involving forceovers, since no instances closer in time could be found.' Cory Johnson, a repairman at Mead, who has been employed thee'for 13% years, cited a' con-" versation between Himself -(he was a union 'committee member at the 'time) and the assistant ' superintendent at the plant in 1976. 'Therei` had been an attempt -to- for- cedver a tour worker and the, worker had' contacted the Union, represented by' Johnson. The' =worker,'John John- son, had said that ' forceovers had: not' been the' past `prac-' tice and that it was against the contract . Johnson, the union committee member, 'agreed .- -After -a discussion with the assistant superintendent, John Johnson was' al- lowed to go home. He received no discipline. (Tr. 139.) In the winter of 1977, Edward Goodreau, a tour mill- wright at the time, was asked to work overtime after his 327 shift ended because a wire had been damaged on a drum stock washer. He refused to stay over . The foreman then said that he could not force Goodreau to stay over. Goo- dreau left when his relief showed up . (Tr. 143-146.) Testimony was elicited from Ken Ziems regarding an incident that took place sometime in January 1981 Ziems worked the 3 to 11 shift as a tour millwright . His super- visor Al Greau asked Ziems to-stay over. Ziems refused. He knew that his relief was in .. Greau did not pursue the ,, matter further that day. The next day or two Greau ap proached Ziems and told him that a supervisor had said that Ziems should have been forced over and that that was, the way it was to be from ' that day forward. (Tr. 103-104.) . Respondent - has tried to ' argue that Mead did have a policy in effect. John Kroll testified that the forceover policy had been in effect since 1969 or 1970 (Tr. 187). Yet the evidence clearly 'shows that not enough people knew about the policy for it to be enforced evenhanded- ly: Although Kroll could not think of another person who had refused a forceover, clearly there had been some . None received discipline, certainly not a 3-day sus- pension . Just as, Sundling's activism should not excuse in- subordinate behavior, it should not be used as a way to punish him either. It was not insubordinate to protest a policy that would undermine a, right the Union and its members felt they had won in the collective -bargaining agreement.- In light of this, and the fact that the break- down of the number. 1, paper machine no longer, was'an emergency situation at 6:30, a.m. the day following its breakdown,, I must find that Rodger Sundling was treat- ed in a discriminatory manner in violation of the Act. Respondent tries to argue that Sundling's refusal to work overtime was ' unprotected because it violated the no-strike clause in the collective -bargaining agreement. However, the Board has found such a refusal unprotect- ed only when the intent of the refusal was to embark on some kind of strikes Such was not the case with Sun- dhng. While protection in-a case - like this is not absolute, the Board would only withdraw 'it if 'there was an open and continuous defiance of the orders of'management.7 There was no indication of that kind of defiance at trial. In fact Sundling has a -clean work record 'except for this insubordination charge. Respondent " further argues that Sundlin`g's- action " vio- lated- the Board's obey-and-grieve rule- This may have been the case if Sundling was not engaged in protected concerted activity' However, since F have found that he was- engaged in 'such;-his protest precludes the duty to obey and grieve: ' ' ' ' ' CONCLUSIONS OF LAW i. - Respondent is "an . employer engaged in, commerce within the meaning of 'Section 2(6) and (7) of the Act.8 6 Valley City Furniture Co,,110 NLRB71589 (1954), John H Swift Co, 12,4 NLRB 394 (1954), Polytech, Inc, 195 NLRB 695 (1972) 7 Compare Bechtel, Inc, 248 NLRB. 1222 (1980), with this case 8 Respondent 'admits that during'the calendar ' year ending December 31, 1980, in the course and conduct of its business operations, it sold and shipped from its Escanaba , Michigan facility , products, goods, and mate- rials valued in excess of $50.000 directly to points located outside the 7, 1 State of Michigan .; ., . ' - 328 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By suspending Rodger Sundling on December 30 for 3 days, Respondent committed an unfair labor- prac- tice within the meaning of Section 8(a)(1) and (3) of the Act: 4. This unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in an unfair labor practice, I recommend that it cease and desist therefrom and take certain affirmative action necessary to effectuate . the policies ^ of the Act. I recommend that Respondent be,ordered to make Rodger Sundling whole for any loss of earnings incurred as a.result of being sus- pended on December 30 with backpay to be computed as prescribed in F. W. Woolworth ,9 and with interest as set forth in Florida Steel Corp.10 I further recommend that Respondent be required to preserve and make avail- able to Board - agents, on request, all' pertinent records and data necessary in analyzing and determining what- ever backpay may be due. I also recommend that Re- spondent be required to post appropriate notices, at its Escanaba plant. [Recommended Order omitted from publication.] 9 90 NLRB 289 (1950) 10 231 NLRB 651 (1977)