Grand Rapids Die Casting Corp.

662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grand Rapids Die Casting Corp . and Thomas Hogan and Sheila Washington. Cases 7-CA-22956-1 and 7-CA-22956-2 29 April 1986 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND STEPHENS On 12 October 1984 Administrative Law Judge Michael O. Miller issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Grand Rapids Die Casting Corp., Grand Rapids, Michi- gan, its officers, agents, successors, and assigns, shall take the action set forth in the Order. i The Respondent has excepted to some of the judge 's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950 ), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The judge inadvertently omitted reference to Sec 8 (a)(3) in his ulti- mate finding of unlawful discrimination by the Respondent His Conclu- sions of Law, recommended Order, and notice indicate that he intended such a finding and the record supports it In finding that Plant Manager Johnston threatened employee Washing- ton with discharge for filing charges with the Board , we note that John- ston's repeated references on the day in question to filing charges with the Board would reasonably convey the message to Washington that filing charges and not leaving the shop was the focus of Johnston's anger when he originally made the statements in question Dwight R. Kirskey, Esq., for the General Counsel. William H. Fallon, Esq., and John W. Cummiskey, Esq. (Miller, Johnson, Snell & Cummiskey), of Grand Rapids, Michigan, for the Respondent. DECISION STATEMENT OF THE CASE MICHEAL O. MILLER, Administrative Law Judge. This case was heard on May 9, 10, and 11, 1984, in Grand Rapids, Michigan, based on unfair labor practice charges filed by Thomas Hogan and Sheilla Washington on De- cember 28, 1983, as amended on January 6, 1984, and a complaint issued by the Regional Director of Region 7 of the National Labor Relations Board, on February 21, 1984. The complaint alleges that Grand Rapids Die Cast- ing Corporation (Respondent) violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act by threatening to discharge and discharging Sheilla Wash- ington and Thomas Hogan because of their union activi- ties and because they filed or stated their intention to file charges under the Act. Respondent's timely answer denies the commission of any unfair labor practices. All parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and the Re- spondent Based on the entire record, including my observation of the witnesses and their demeanor, I make the follow- ing FINDINGS OF FACT 1. RESPONDENT'S BUSINESS AND THE UNION'S LABOR ORGANIZATION STATUS-PRELIMINARY CONCLUSIONS OF LAW Respondent, a subsidiary of Park Electrochemical Corp., is a New York corporation with plants located in Walker and Grand Rapids, Michigan, where it is en- gaged in the manufacture, sale, and distribution of metal and plastic castings and other components for use in the plumbing, automotive, and appliance industries. Only the Grand Rapids plating plant is involved in these proceed- ings. The complaint alleges, Respondent admits, and I find and conclude that Respondent is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and I find and conclude that the International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America (UAW) and its Local No 159 (the Union) are labor organizations within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background-Collective-Bargaining History, the Contract, and Shop Rules The Union has been the collective-bargaining repre- sentative of the production and maintenance employees at Respondent's plating plant for more than 20 years. At the time of these events, a collective-bargaining agree- ment was in effect, which ran from June 1981 through June 1984 That agreement, in articles on representation and grievance procedures, provides for a four-member plant committee whose members act as stewards, repre- senting the employees in designated departments It fur- ther provides that employees with grievances may con- sult with their stewards, on request to their foremen, within 30 minutes of such a request being made. In leav- ing his or her department, a steward is required to obtain permission from his or her foreman and to report to the foreman of the department to which he or she is going. After discussions with the employee, the steward is then to discuss the matter with the foreman and, if unable to resolve the dispute or grievance, the steward is permitted 279 NLRB No. 93 GRAND RAPIDS DIE CASTING to reduce the grievance to writing. The employee is al- lowed 15 minutes to consult with that steward with re- spect to the writing of the grievance. The grievance pro- cedure then continues through additional steps culminat- ing in arbitration. Respondent also maintains shop rules, outlining vari- ous kinds of misconduct subjecting employees, generally, to progressive discipline beginning with a verbal warning and concluding in discharge . The rules expressly state that "The company reserves the right to bypass lesser steps of the [progressive discipline] process when the in- fraction of a rule is flagrant and/or serious by its very definition " Of application to the instant case is shop rule 8, prohibiting: Insubordination. Refusal to accept work assign- ments or working place location assigned by your foreman or to take direction from the foreman. Additionally, the two Charging Parties, Hogan and Washington, expressly recognized , as a general rule, that union officers were obligated to comply with a foreman's direction to return to work so long as such order or di- rection did not endanger health or safety, i e., "work now-grieve later." B. The Immediate Facts Thomas Hogan and Sheilla Washington were long- term employees of Respondent, approximately 17 years each . They were also union stewards : Hogan, a dockman and hi-lo driver, and the Union's unit chairman, repre- sented the buffing department employees (including Washington); Washington, an auto-buff operator, was steward for the plating line. At issue is whether they were discharged for refusing to comply with proper orders to conclude their grievance filing activities, and return to work or whether they were discharged because of those activities and because they threatened to file and filed unfair labor practice charges. The relevant events occurred on December 28 and 29, 1983.1 Washington began her workday on December 28 at 6 a.m. At the start, she asked her foreman, Daryl Hamp, for and received permission to leave the department at 7 a.m. to complete grievance discussions with employee Ancans, begun on the prior afternoon. At 6:30 a.m, she requested to see her own steward, Hogan, in order to file, as she had been doing daily for several weeks, three grievances on her own behalf, alleging improper denials of overtime.2 Washington forgot to go to Ancans at 7 a.m. and, at 7:15 a.m., she again asked Hamp for Hogan to come and see her. At the same time, she told Hamp that she would see Ancans after she spoke with Hogan. Shortly thereafter, Hogan came into her department; Hogan and Washington talked for 10 to 15 minutes. She then started up her machine, the number 3 auto buff. About 7:55 a.m., Hamp again reminded her to see ' All dates hereinafter are 1983 unless otherwise specified 2 Washington testified, without contradiction, that she filed in this rep- etitious manner pursuant to earlier instructions of Industrial Relations Manager Richard Cardinal to file separate grievances each time allegedly wrongful conduct occurred Multiple grievances were prepared each day to cover all possible theories of contract violation 663 Ancans. Washington asked whether she should go then or wait until after her own 8 a .m. break and was directed to go then and take her break later.3 Washington spoke with Ancans and together they went to the Union's in- plant office. Ancans left the office at 8:10 and Washing- ton left about 5 to 8 minutes later, going to the front office where she spent an additional 20 or so minutes checking Ancans' time records . She then left that office and started toward Ancans ' department to report on her progress. She did not write a grievance for Ancans on December 28. Claire Johnston , Respondent's plant manager, testified that, as he was making a routine trip through the plant, he observed Washington talking to employees on plating line "B" sometime between 8 :30 and 9 a.m. At the same time, he noticed that plating line "A" was running at half speed. On his return trip, he again observed Washington; at this time, she was talking with Gloria Johnson by auto buff machine number 8.4 He thought little of it as it was not unusual for employees to stop and talk with Johnson, whose machine is on the aisle . He said nothing to them. Hamp and Michael Cleland, the plating line supervi- sor, were in the front office about the time that Washing- ton left there to return to Ancans. After she left, John- ston entered and allegedly asked Hamp what Washington was doing not running her machine but talking to Gloria Johnson Hamp reported that Washington did not have permission to be so engaged and Johnston instructed Hamp to get her back to work. There was, he testified, a "hot job" to be run on her machine and the product cur- rently on that machine had to be "run out." Hamp went out to the department, accompanied by Cleland, to so in- struct her. As Washington recalled the exchange, Cleland ap- proached and asked whether she had "finished with the damn union business?" She replied that she had not and that she would let her foreman, Hamp, know when she was done as he had instructed her to do. Cleland told her that it should have taken only 15 minutes to write a grievance and, when she said that she had not written one, told her, angrily, that she "was just fucking off" and could have been done in 15 minutes. Washington asked whether Cleland was telling her how to perform her union business. At this point, Johnston entered the con- versation, telling Washington that he paid her "fucking wages" and would tell her how to do the union business. He ordered her back to work. Washington described him as being very agitated and angry. Washington objected to the yelling and cursing and was told by Cleland to take 15 minutes to complete her union business. Wash- ington questioned whose orders she should follow and asked Hamp for her steward in order to file grievances about both the manner in which she had been treated and about the interference with her union business. Cle- land told her to take 15 minutes to write the grievances and return to work. As she walked away, she told Hamp that after she talked with her steward, she was going to the Labor Board to file charges concerning their treat- 3 Washington's testimony was corroborated by two employees, Mogg and Ptak Hamp testified only that he released her about 7 45 a in 4 Both Washington and Johnson dispute this testimony 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment of her.5 To this, according to Washington, John- ston again became "really mad." He threatened to dis- charge her if she went to the Board or left the plant for any reason, repeating this threat several times . Washing- ton stated that she was going to use credits earned under Respondent's absenteeism policy to take leave. As she was leaving , she heard Johnston tell Hamp to "have all the fucking stewards back on the job " Washington then went to the Union's in-plant office (when events involv- ing Hogan , discussed infra, took place) to put her papers away. She remained there a short while and then went back to Ancans to report that her grievance could not be finished until the following week because it would take that long to secure necessary documentation. On her return to her own department, she reported to Hamp that she had completed her union business and, as it was then 8 :45 a.m. and she had not taken her morning break, asked whether she could take it. Hamp told her to go at that time. She went to the cafeteria, picked up a drink, and proceeded to carry it back to the union office. On her way, she was told by a fellow employee that Hamp had punched her out . After checking this out and finding it to be true, she was told by Hamp to return to the union office to await further instructions The management representatives recall these events differently . Thus, according to Hamp , Cleland, and John- ston (who joined the exchange after it had already begun), Hamp and Cleland came on Washington as she was in the aisle of the buffing room , walking toward the exit. As Cleland recalls the exchange Hamp told Wash- ington to go back to her machine, to finish up that job, and to get her machine changed over. Washington claimed to be on union business and Hamp repeated that he wanted Washington back on her machine to run that job out and change it over . Cleland then asked what was taking so long to investigate and suggested that she just write up the grievance so that it could be settled. Wash- ington objected to being told how to do her union busi- ness and was again told , by Johnston, who had just come up, to return to her machine because of the changeover, stressing that there was a job he was anxious to have done Cleland acknowledged that the conversation was in louder-than-normal conversational tones because the buffing room was noisy , but he denied that there was any profanity used. Hamp testified that he told Washington to return to work ; he did not testify to giving her any explanation of what she was to do . Cleland then questioned the amount of time she was spending on this union business, to which she objected, and Hamp repeated his order that she return to work , this order being given at 8 :50 a.m. Johnston gave her the same order. According to Hamp, the conversation was conducted in normal tones. John- ston essentially corroborated Hamp 's recollection. How- ever, contrary to Cleland's version, Johnston denied that he told Washington why he wanted her back on her ma- chine. Johnston also acknowledged that this conversation was conducted in tones louder than would have been necessary in order to be heard over the sound of the ma- chines. s The NLRB has a resident office in Grand Rapids, Michigan According to Hamp , Washington then left. He heard no further conversation with her at that point . However, according to Cleland and Johnston , who walked away together, Washington was heard to say , "Fuck it, I'm going to the Labor Board." Clelahd told her that she would be marked absent if she left and Washington stated that she would use a day of credit from the absen- teeism program in order to leave . Johnston said nothing further; he did not, according to Cleland, threaten to fire Washington if she went to the Labor Board. Hamp went to see how many pieces were left to run. Shortly, according to his testimony , he received a call from Johnston asking whether Washington was back to work. When he told Johnston that she was not, he was told, "We have to have that machine . We had better do something about it." Then, as he testified, "So, she re- fused a reasonable work order so I went out and got her time card and punched it out," between 9 and 9 :05 a.m. He did not claim that anyone had directed him to punch her out. However, Johnston claimed that Hamp came to his office and told him that Washington had not gone back to work. At that point, according to Johnston, he instructed Hamp that if she did not go back to work, he should pull her card and bring it to the office where they would punch it out After Hamp pulled Washington's card, he took it to the office and directed that a suspension notice be draft- ed. He then returned to Washington's machine and, when she returned , sent her to the union office to await his call. In resolving the credibility issues raised to this point in the case, I have considered the demeanor of the wit- nesses, inconsistencies in testimony and the inherent probabilities . Thus viewed, I find that the testimony as given by Washington is more accurate than that of Re- spondent's witnesses . Thus, I was more favorably im- pressed with the demeanor aspects of her testimony than I was with that of either Hamp or Cleland.6 With re- spect to Johnston's claim that he observed Washington talking to Johnson by Johnson's machine, I note that Washington's testimony was corroborated by the credi- bly offered testimony of Gloria Johnson, a currently em- ployed worker testifying in the presence of, and contrary to the interests of, her supervisors . In this regard, I note, too, the inconsistencies in Johnston's testimony. On the one hand, he admitted that such conversations between Gloria Johnson and other employees were not unusual, that he did not think much of it, and that he made no effort to interfere with it. On the other hand, he claimed to have immediately brought it to the supervisors' atten- tion and directed that action be taken Similarly, I note the inconsistencies in the descriptions of the tone of the exchange with Washington by the three supervisors, the inconsistencies between Cleland's testimony with respect to Washington being told why she should return to work7 and that of both Hamp and Johnston, and incon- 6 I reject Respondent 's contention that its supervisors were "disinter- ested witnesses" whose testimony should be given extra weight because of such status All the witnesses here were essentially "interested " ' A similar inconsistency is noted in Cleland's description of Moon's order to Hogan to return to work, discussed infra GRAND RAPIDS DIE CASTING sistencies between Hamp and Johnston with regard to how Washington's card came to be pulled. Accordingly, I credit Washington's version of the December 28 events 8 There is little dispute over the relevant facts with re- spect to the suspension of Hogan. Hogan had clocked in on December 28, at 7 a.m. Thereafter, until nearly 9 a.m., he had been continuously occupied on union busi- ness. Another employee, less experienced and less capa- ble, was assigned to operate his hi-lo, and did so with some difficulty. About 8.30 a.m., Johnston observed the replacement on Hogan's hi-lo and asked James Moon, Hogan's foreman, where Hogan was. Moon explained that Hogan was on union business and had been so occu- pied all morning After the exchange with Washington, Johnston sent word to Moon, through Cleland, that Hogan was to be ordered back to work. Moon, anticipat- ing a refusal by Hogan,9 went to Johnston for guidance. Moon suggested that Hogan might refuse his order to return to work. Johnston told Moon to pull Hogan's card in that eventuality. Moon, with Cleland as a wit- ness, went to the Union's in-plant office. Standing either just inside or just outside that office, he told Hogan that he had to have Hogan back to work. Hogan, according to his own testimony, told Moon, "Okay, as soon as I finish this union business "10 Moon told Hogan that unless Hogan returned to work immediately, he had orders to pull Hogan's card. Hogan, aware that "pulling a card" meant suspension or worse, told Moon, "If you have to pull it, go ahead and pull it."11 Moon and Cle- land went back downstairs and Moon pulled the card Robert Badge, another steward who had been in the office with Hogan, followed Moon down from the union office, observed him pull Hogan's card, and asked, "Kind of ridiculous, ain't it, Jim?" Moon responded by shrug- ging his shoulders and commented that he just took orders. When Moon brought him Hogan's card, Johnston directed that a suspension document be prepared. Shortly thereafter, Hogan came downstairs to file the grievance on which he had been working. Claire John- ston was in the front office when he got there and told Hogan, "Tom, I am going to give you and Sheilla some- thing to go downtown and file charges on now." Hogan replied affirmatively and returned to the union office 12 Hogan was subsequently joined by Washington who, following the pulling of her card, had also been told to wait in the union office After about 30 minutes, they a Inconsistencies in Washington's recollection of the timing of these events and between her affidavit and her testimony with respect to whether she had described Johnston as "throwing a Tasmanian fit," whether she learned that her timecard had been pulled as she went to, or came from, the cafeteria, and in certain other respects, as pointed out by Respondent, are noted They are deemed less significant than the incon- sistencies noted in the testimony of Respondent' s witnesses 9 According to Moon, he and Hogan had argued during the preceding week concerning the use of worktime for union business Hogan denied this Although Moon's testimony is the more probable in light of the steps taken by Moon, it is unnecessary to resolve this dispute in light of the undisputed facts and my conclusions with respect thereto 10 According to Moon and Cleland, Hogan said that he was still on, or not yet through with, his union business 11 Contrary to the recollection claimed by Cleland, Moon did not ex- plain why Hogan was needed back at work 12 1 credit Hogan's candidly offered testimony 665 were called to the front office After another short wait, they were both given written notices of "Suspension/- Pending Discharge" for "violation of shop rule #8. In- subordination. Employee refused to accept foreman's orders to return to work " A suspension hearing wa scheduled for the following morning. When they were given the notices, according to both Hogan and Wash- ington, Johnston stated (again) that they now had some- thing to go downtown and file charges on.13 Hogan and Washington were not permitted to return to the plant to pick up their personal items, someone else was sent to do it. Notwithstanding that it was a snowy day, they were not allowed to go through the plant to get to their cars, they had to walk around the outside of the building. Johnston claimed that this was an action consistent with company policy but acknowledged that no one had ever before asked to be permitted back into the plant after having been suspended. Hogan and Washington immediately filed unfair labor practice charges, alleging that they had been discharged because of their union and other protected activities According to Cardinal, Respondent had tentatively de- termined, prior to the December 29 hearing, to discharge Washington because this was her second violation of plant rule 8 within a 6-month period 14 It was Cardinal's tentative determination to merely suspend Hogan, with a similar warning of discharge for any repetition of the in- fraction. The December 29 suspension hearing was attended by Johnston (alone at first), and Cardinal for Respondent, and Hogan, Washington, Badge, Gloria Johnson, and Jerry Scott for the employees. At the outset of the meet- ing, Hogan gave Johnston the charges which he had filed with the NLRB and a Michigan civil rights agency. Hogan either told Johnston what they were or Johnston surmised their nature. Johnston then brought Cardinal into the meeting. Cardinal led the remaining discussion, commenting on his surprise at finding Hogan in this posi- tion He referred back to an incident in 1980 when a group of union officers, including Hogan and Cardinal, had been disciplined for their refusal to comply with the same rule and had their jobs saved by their acknowl- edgement of the "work now-grieve later" rule. Hogan professed not to recall the details of that incident. Cardi- nal asked whether Hogan did not realize his obligation to obey a supervisor's order to return to work and Hogan either asserted that he was being harassed because of his union activity or stated his belief that he was entitled to continue his union activity notwithstanding such an order. At this point, Cardinal decided to discharge, rather than suspend, Hogan because of Hogan's failure to acknowledge the rule and agree to comply with it in the future. He told Hogan so. He also told Washington that she was being discharged, referring to her prior suspen- 19 I credit Hogan and Washington 14 On October 3, Washington had been given disciplinary time off for leaving the line without permission from her foreman That warning con- tained the express admonition , "THE NEXT INFRACTION OF THIS SHOP RULE WILL RESULT IN TERMINATION OF EMPLOY- MENT " 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sion and warning for the same offense. The employees then left.1 s The December 29 meeting was very short, no more than 5 to 8 minutes, most such suspension meetings have lasted at least one-half hour and have involved more dis- cussion of the alleged infractions. However, there was no attempt by the union committee, in this meeting, to dis- cuss the merits of Hogan's and Washington' s cases. This was the first suspension hearing, at least within Cardinal's tenure as industrial relations manager, in which, according to the recollection of all present, the suspensions pending discharge were not converted to dis- ciplinary suspensions. However, Cardinal credibly ex- plained that in all the prior cases, there was either no recent prior warning or the prior incident involved in- subordination to other than a supervisor.16 Further, the evidence established the Cardinal regularly required em- ployees suspended for insubordination to acknowledge the rule and give assurances of future compliance as a condition of continued employment. It further estab- lished that those employees who were merely suspended in the past had met this requirement. Respondent received Washington's charge I or 2 days after this meeting. A fifth-step grievance meeting with respect to Hogan's discharge was held about a week later. The Union's international representative, Hugg, reiterated the rule re- quiring union officers to comply with supervisory orders to return to work notwithstanding that they were en- gaged in union business17 and Cardinal stated that he wanted to hear Hogan agree to future compliance. Hogan did not respond, allegedly because he did not be- lieve Cardinal's remark was directed at him. Hogan con- cluded the discussion of his discharge by stating that they were getting nowhere. He suggested they move on to other grievances and stated that he would let the Fed- eral Government do his talking for him. The only evidence the General Counsel adduced to es- tablish Respondent's alleged animus toward the exercise of statutory rights came from William Essex, president of the Local Union According to Essex's uncontradicted testimony, in a conversation held in mid-October, Cardi- nal complained that Hogan and Washington were "radi- cal" in the way they did their union business and were wasting too much time, that they were on the floor away from their jobs too much. Cardinal asked Essex's assist- ance, in his capacity as Local Union president, in getting them to investigate grievances more quickly and to exer- cise more discretion regarding the grievances they pur- sued. In early December, Cardinal and Essex spoke 15 The foregoing is essentially as described in the credible testimony of Cardinal, as corroborated by Johnston, Washington, and Scott 16 In the case of employee Schutte, the record establishes that a wnt- ten warning had been given on August 31 for being insubordinate during a telephone conversation with a personnel assistant On September 21, she refused to obey a direct order of Cardinal, then her foreman, to remove an ear plug (a safety hazard) and was given a 3-day suspension with threat of discharge for the next infraction of shop rule 8 Cardinal drew a distinction between insubordination to a personnel assistant and similar conduct in response to a supervisor's orders I cannot say that the distinction is so patently unreasonable to be incredible , particularly in light of the express language in shop rule 8 defining insubordination as the refusal to take orders from one's foreman 17 Testimony of Cardinal and Johnston as corroborated by Johnson again.- In this conversation, there was no reference to Hogan or Washington; there was a mention of one other employee by name. Cardinal complained about the loss of working time to sick leave, the processing of petty grievances and other reasons and again asked Essex's help. He referred to some employees as "riff-raft" or "unsavory" and threatened to take disciplinary action to straighten them out or get rid of them. At the hearing, Essex agreed that, on occasion, Washington and Hogan had spent more time on union business than they should have. He also agreed that some petty grievances were being filed. To negate any possible evidence of union animus, Re- spondent introduced evidence concerning other employ- ees who have filed or threatened to file unfair labor practice charges, without sanction. It also pointed to the fact that virtually all its managerial hierarchy were, within the recent past, unit members and union offf- cers.18 The discharges of Hogan and Washington were subse- quently arbitrated. Arbitrator Samuel S. Shaw rejected the Union's contentions with respect to alleged discrimi- nation because of Washington's race and her union ac- tivities, noted her prior warnings for insubordination, and sustained her discharge. Arbitrator Leo S. Rayl Jr. simi- larly considered the Union's contentions with respect to racial and antiunion discrimination against Hogan and re- jected them, finding Hogan guilty of insubordination. However, he reduced the penalty from discharge to a suspension equal to the time already away from work. In neither case, it appears, was it contended or considered that Washington or Hogan had been discharged because they threatened to file or filed unfair labor practice charges. Analysis and Conclusions Respondent argues , initially, that the Board 's recent re- affirmation of "its longstanding policy of deferring in unfair labor practice cases to voluntary resolution of labor disputes through arbitration ," as set forth in Olin Corp., 268 NLRB 573 (1984), and United Technologies Corp., 268 NLRB 557 ( 1984), warrants reappraisal of the Board's ban on deferral in cases involving allegations of 8(a)(4) discrimination , as set forth in Filmation Associates, 227 NLRB 1721 (1977). Filmation , it contends, is no longer good law following Olin . Respondent's argument must be rejected . The Board, in International Harvester Co., 271 NLRB 647 (1984), recently reaffirmed its adher- ence to the principles set forth in Filmation , repeating the admonitory holding that, "the duty to preserve the 18 All Respondent's witnesses from among its supervisory hierachy had begun their employment as workers in the bargaining unit and virtu- ally all of them had served as union committemen and officers Thus, Claire Johnston had been unit chairman for 6 years Richard Cardinal had been in the bargaining unit for more than 20 years, and held various positions including unit chairman and local union vice president He was one of the signatories, on behalf of the Union, of the current collective- bargaining agreement Similarly, Michael Cleland, was a unit member until October 1983, had been bargaining committee chairman for 5 years, and had also signed the contract for the Union James Moon had been a union member for 10 years and had served as unit chairman for about 2 years GRAND RAPIDS DIE CASTING Board's processes from abuse is a function of this Board and may not be delegated to the parties or an arbitrator." Moreover , the Board went on to state , as it had in Fil- mation (at 647): where, as here, there are alleged violations of Section 8(a)(3) and (1) that are "closely inter- twined" with the allegations involving Section 8(a)(4), deferral of those statutory issues is equally inappropriate To hold otherwise would be contrary to the Board's established policy. i s Accordingly, Respondent's contention that deference should be accorded here to the arbitrators' decisions is rejected. I shall resolve these cases, including the inter- twined 8(a)(3) and 8(a)(1) issues, in their entirety, on the merits I have credited Washington's account of the events of December 28. Thus, in brief, I have found that she was engaged in the filing of her own grievances in her em- ployee status and in the investigation of one of her con- stituent employee's grievances in her union steward ca- pacity These are protected concerted activities.20 I have further found, based on her version of the facts, that she refused no order to return to work. Rather, she was ex- pressly given additional time to process her own griev- ances and take her morning break. While she tool. that time, her card was pulled. Giving Respondent the benefit of the doubt and assuming that Respondent, at that point, mistakenly believed that she had refused an order to return to work, these facts place Washington's discharge squarely within the principles enunciated by the Supreme Court in NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964) There, the Court held: In sum, Section 8(a)(1) is violated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that employee was not, in fact guilty of that miscon- duct 19 Similarly rejected is Respondent's implication that the employees filed unfair labor practice charges between their suspensions and their discharges in order "to bootstrap an 8(a)(4) charge into the case after the final discipline [was] determined, and thereby completely avoid the finality of the arbitration procedure " Here, based on the surrounding circum- stances of the discharges, and in particular the repeated references to the filing of unfair labor practice charges first by Washington and thereafter by Respondent's representatives, there was ample color of violation to warrant the filing of those charges, the filing was no mere bootstiap ma- neuver 20 i must reject Respondent's contention that because Washington did not immediately present a grievance to Ancans' foreman, but rather con- tinued to invesigate that grievance, she lost her statutory protection Her activity was reasonably within the ambit of the contractual provisions, as the employer had been permitting union officers to practice them, as well as protected under the Act Moreover, Respondent did not contend that Washington was discharged because of any abuse of the contractual privileges To the extent that Respondent 's contract and practice permits what might , in other circumstances, be deemed an undue amount of time to be spent on union business by union officers while on company-paid time, this case is not the vehicle to rectify such a problem 667 That is precisely the case here. Accordingly, I find that Respondent discharged Sheilla Washington in violation of Section 8(a)(1) of the Act. 2 i A separate resolution of the 8(a)(4) question is war- ranted Under all the circumstances present here, I must conclude, in agreement with the General Counsel, that the discharge of Washington was motivated, at least in part, by her threat to file charges with the NLRB. In so finding, I note and rely on the credited evidence that Re- spondent threatened to discharge her if she filed charges, which threat I find to be a clear violation of Section 8(a)(1) of the Act, as alleged in the complaint. I also note Johnston's continued references to the possibility that Washington and Hogan would file charges. Such state- ments indicate that the possibility of such charges loomed large and important in the mind of Johnston, Re- spondent's plant manager. The suspension and discharge of Hogan presents a dif- ferent picture. Like Washington, I find that Hogan was engaged in protected concerted union activities on the morning of December 28. However, unlike Washington, I find that he was given a direct order to return to work, which order he insubordinately disobeyed.22 For this, consistent with Respondent's practice, Respondent sus- pended him. Hogan's insubordinate refusal to obey an order to return to work, I find, was not privileged by protected activity in which he was engaged at that moment.23 After his suspension pending discharge, Hogan was, in fact, discharged. He is the only employee to have been discharged by Respondent for a single violation of shop rule 8, but I do not find him to have been treated dispar- ately. Cardinal, who had originally intended only to sus- pend Hogan, and who made the decision to convert that suspension to a discharge, testified that he changed his mind concerning the discipline of Hogan when Hogan failed to satisfy Cardinal's requirement that he verbally acknowledge the rule prohibiting such insubordination and promise to comply with it in the future. Although this requirement borders on the pedantic, it is not so un- reasonable to raise questions concerning its legitimacy. Moreover, several employees corroborated Cardinal's testimony concerning this practice. I note further that testimony which I have credited indicates that Cardinal made no reference to the charges filed by Hogan and may not have known, at that time, that they had been filed and I note the absence of any significant expressions of union animus other than Johnston's expressions con- cerning the filing of charges. Finally, I deem it signifi- cant that Cardinal apparently gave Hogan another change to reduce the penalty from discharge when, at the fifth shop meeting, he again asked that Hogan ac- 21 If, on the other hand, one assumes that Respondent was aware that Washington did not refuse to obey an order to return to work , then its reason for her discharge was clearly pretextual and the General Counsel's prima facie case of a discriminatorily motivated discharge in violation of Sec 8(a)(3) stands unrebutted 22 The evidence, I find, is insufficient to sustain any inference that Hogan was not really needed back on the job or that this order was given in order to provoke his refusal, thus setting him up for discipline 23 See IML Freight, 249 NLRB 861, 865 ( 1980), and General Motors Corp, 235 NLRB 49, 50 (1978) 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knowledge the rule and promise compliance. This con- duct tends to negate discriminatory motivation. I there- fore conclude that even assuming that the General Coun- sel has established a prima facie case of discrimination in violation of Section 8(a)(3) or Section 8(a)(4), Respond- ent has sustained its burden of establishing that Hogan would have been discharged for his insubordination and for his failure to acknowledge and agree to comply with the rule prohibiting such insubordination in the future even absent the protected activity in which he had been engaged.24 Accordingly, I shall recommend that the al- legations pertaining to the suspension and discharge of Thomas Hogan be dismissed. THE REMEDY Having found that Respondent, Grand Rapids Die Casting Corporation, has engaged in unfair labor prac- tices in violation of Section 8(a)(1), (3) and (4) of the Act, I will recommend that Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily dis- charged Sheilla Washington, I shall direct that Respond- ent offer her immediate and full reinstatement to her former or a substantially equivalent position without prejudice to her seniority or other rights and privileges, and shall make her whole for any loss of earnings she may have suffered by reason of the discrimination prac- ticed against her, such earnings to be computed in ac- cordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 298 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). Further, I shall direct that all references to her discharge be removed from Respond- ent's files and that Respondent notify her, in writing, that this has been done and that evidence of the unlawful dis- charge will not be used as a basis for further personnel actions against her. CONCLUSIONS OF LAW 1. By threatening to discharge Sheilla Washington if she filed a charge with the National Labor Relations Board, Respondent has violated Section 8(a)(1) of the Act. 2. By discharging Sheilla Washington because she en- gaged in union and other protected concerted activities and because she stated her intention to file a charge with the National Labor Relations Board, Respondent has violated Section 8(a)(1), (3), and (4) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(2), (6), and (7) of the Act. 4. Respondent did not engage in any unfair labor prac- tices other than those found herein. 24 The Wright Line allocation of burdens of proof in dual-motivation cases under Sec 8(aX3) of the Act is appropriately applied as well to cases arising under Sec 8(aX4) Wright Line, 251 NLRB 1083 (1980); Parker Laboratories, 267 NLRB 1174 (1983) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed25 ORDER The Respondent, Grand Rapids Die Casting Corp., Grand Rapids, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees wiht discharge if they file charges under the National Labor Relations Act. (b) Discharging employees because of their union or other protected concerted activities or because they have stated their intention to file charges under the National Labor Relations Act. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Sheilla Washington immediate and full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to her seniority or other rights and privileges and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her, in the manner set forth in the remedy section of this deci- sion. (b) Remove from Respondent's files all references to the discharge of Sheilla Washington and notify her in writing that this has been done and that evidence of her unlawful discharge will not be used as a basis for future personnel action against her. (c) Post at its Grand Rapids, Michigan plant copies of the attached notice marked "Appendix."26 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. " If no exceptions are filed as provided by Sec 102 .46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. se If 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 Nation- al 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 " GRAND RAPIDS DIE CASTING 669 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT discharge employees because they state their intention to file unfair labor practice charges or be- cause they have engaged in union or other protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Sheilla Washington immediate and full reinstatement to her former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and WE WILL make her whole for any loss of earnings she may have suffered as a result of her unlawful discharge , with interest. WE WILL remove from our files any reference to the discharge of Sheilla Washington and notify her in writ- ing, that this has been done and that evidence of the un- lawful discharge will not be used as a basis for future personnel actions concerning her. WE WILL NOT threaten to discharge employees be- cause they state their intention to file charges under the National Labor Relations Act. GRAND RAPIDS DIE CASTING CORP.