Barmet Of Indiana, Inc.

1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Barnet of Indiana, Inc. and Local No. 55, Interna- tional Molders and Allied Workers Union, AFL-CIO-CLC. Cases 25-CA-11543 and 25- CA-11791 17 July 1989 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 17 February 1981 Administrative Law Judge Elbert D. Gadsden issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed limited excep- tions and a brief in support of the judge's decision. The National Labor Relations Board had dele- gated its authority in this proceeding to a three- member panel. The Board had considered the decision and the record in light of the exceptions and briefs and had decided to affirm the judge's rulings, findings, 1 and conclusions only to the extent consistent with this Decision and Order. 1. The judge found that the Respondent violated Section 8(a)(3) and (1) by giving Ronald Ball an onerous work assignment, a disciplinary writeup, and a suspension and violated Section 8(a)(1) by denying Ball his Weingarten2 rights. We fmd merit in the Respondent's exceptions to these findings for the reasons stated below. The facts underlying the alleged violations re- garding Ball are not in dispute. Ronald Ball was the Union's chief steward and was actively in- volved in filing grievances on his own behalf and on behalf of his fellow employees. On 8 November 19793 Ball filed a safety grievance with Superin- tendent Stan Doremus on behalf of another em- ployee. Later that day Doremus assigned Ball and another employee, Doug Howerton, the task of loading salt lumps on trucks bound for the Re- spondent's sister plant in Livia, Kentucky. Al- though Ball objected to the assignment, arguing that he had to use a 920 cat with forklifts to per- 1 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 credibihty resolutions unless the clear preponderance of all the relevant evidence convmces 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 reversmg the findings except as noted herein. The judge in his decision inadvertently referred to the testimony of Su- perintendent Darrell Duncan. We note that Duncan did not testify at the hearing The judge twice in his decision referred to certain pages of the Gener- al Counsel's brief as support for his fmdings rather than reciting the rele- vant arguments made by the General Counsel. We do not approve of the judge's use of this shorthand method in settmg forth his rationale for his findings. 2 NLRB v. J. Weingarten, 420 U.S. 251 (1979). 3 Unless otherwise stated all dates are 1979. form the operation instead of the usual 966 cat with a bucket,4 he proceeded to perform it. Present during the salt loading procedure were Doremus, Garage Superintendent Darrell Duncan, and Plant Manager John Grunigen, who was in charge of di- recting the operation. That same afternoon Ball was summoned to Doremus' office where Doremus gave Ball a write- up for operating the cat improperly earlier that day and requested him to sign it. Ball demanded the presence of a union representative, and Doremus did not reply. Ball repeated his request, and Dore- mus took the writeup and told him it would be in his record. Ball, reiterating his request, grabbed the writeup, tore it up, and threw it in the trash can. Doremus reacted by stating, "No, you're suspend- ed." The judge concluded that the salt loading oper- ation assigned to Ball was an act of reprisal for Ball's active role in filing grievances. We disagree. The Respondent had to obtain noncontaminated salt material in order to ship it to another of the Respondent's plants for processing. The sensitive nature of the operation required that the operation be directed by Plant Manager Grunigen and that 920 cats with forklifts be used in order to be more selective about the salt lumps collected. 6 The record shows that the Respondent selected Ball and Howerton for the task because they were the only floormen available on that shift. The record also shows that because both Howerton and Ball were 920 operators, they were familiar with the equipment and capable of performing the task. The record thus does not support the judge's fmding that the assignment of the task was in any way re- lated to Ball's union activities. Thus, although on the same day that Ball was assigned the salt load- ing job he had filed a safety grievance, there is no showing that Doremus reacted unfavorably to the grievance. Nor had the Respondent ever disci- plined or penalized Ball in any way for any of the 72 grievances he had filed in 1979. 6 Moreover, in 4 A cat is a front-end loading machine operated by a set of forks or with a bucket. 'The judge did not credit the Respondent's explanation that the sensi- tive nature of the operation required the unusual use of the 920 cat and direct management supervision on the basis that the Respondent engaged in certain conduct, which he found to be unlawful, both before and after this incident involving Ball. As further discussed below, we have re- versed the judge's findings of all unfair labor practices, with the excep- tion of the 8(a)(1) violation involvmg the Respondent's unlawful promul- gation and enforcement of a rule against filing grievances on company time. We do not, however, find this sole violation a sufficient basis to reject the Respondent's otherwise uncontradicted testimony. According- ly, as our findings have eliminated the basis for the judge's discrediting of the Respondent's explanation, we do not rely on the judge's conclusion on this point. 6 There is no showing that Ball was disciplined pursuant to the rule against filing grievances on company property, which we have found to Continued 284 NLRB No. 106 BARMET OF INDIANA 1025 the circumstances here, we find that the Respond- ent had established that it would have assigned this task to Ball regardless of his union activities. Ac- cordingly, we fmd the work assignment to be lawful. Similarly, we disagree with the judge's finding that the Respondent's writeup of Ball for his per- formance of the salt loading task was unlawful. The record reveals that Ball, displeased over the task he had been assigned to perform, operated the vehicle erratically by accelerating the engine, shift- ing gears abruptly, and picking up material without using brakes." Doremus, who witnessed Ball's per- formance, decided to issue the disciplinary warning to Ball. There is no evidence that the writeup was for any reason other than Ball's conduct. Based on the foregoing, we find that the Respondent's write- up of Ball was based on its evaluation that Ball had operated the vehicle improperly and not because of any discriminatory motive. In finding Ball's writeup unlawful our dissenting colleague relies on the supervisors' failure to chas- tise Ball for improper handling of the equipment during the loading operation. The record indicates, however, that although Grunigen was directing the operation, he was doing so by hand signals since it was impossible to communicate verbally with the cat operators. The fact that the supervisors chose to write up Ball for his performance at the end of the operation rather than attempt to communicate with Ball under those circumstances is not indica- tive of unlawful motivation on the Respondent's part. Nor does the supervisors' laughter suggest the writeup was unwarranted when we do not know the reason for the laughter or that it was directed at Ball. Moreover, the dissent's conclusion that the Re- spondent failed to afford Ball an opportunity to air his disagreement with the writeup is in error. Dor- emus may well have intended to discuss the merits be unlawful, as noted infra, or following a heated argument with a super- visor in November, after he filed a complaint with the Respondent re- garding its change in procedures for tapping furnaces. 7 The judge rejected the Respondent's contention that Ball operated the 920 cat improperly on the basis that at the time Ball was performing the work, Plant Manager Grunigen did not tell Ball to slow the operation down or that he was operating the equipment improperly. We do not find this basis logical grounds for rejecting the Respondent's contention. Further, we find the Respondent's contention supported by evidence in the record and other findings in the judge's decision. First, regardless of the unusualness of the task, Ball was an experienced operator of 920 cats, and we see no basis for requiring management to instruct him in their operation. We further note that the judge himself assumed that Ball was not happy about the work assignment and stated that Ball probably had not operated the 920 "with kid gloves." Finally, as found by the judge, when Ball was informed by Grumgen that he was given the writeup be- cause he "ran over materials and was shifting the cat too hard," Ball did not deny this but replied that the cat was locked m one gear and that he had to run over materials because he did not have a "bucket (with which the 966 cat is equipped) with which to scoop the floor." Accordingly, we do not rely on the judge's findings on this point of the writeup with Ball but such opportunity was foreclosed when Ball improperly tore up the write- up. In any event, Ball went to Grunigen's office after the meeting with Doremus, and Grunigen did in fact discuss the merits of the writeup with Ball. Further, we disagree with the judge that Dore- mus' denial of Ball's request for a union representa- tive constituted a Weingarten s violation. Under Weingarten, an employee has the right to have a union representative present at an employer inter- view which the employee reasonably believes may result in a disciplinary action against him 9 Howev- er, this protection does not extend to situations where an employer merely informs an employee of a decision previously arrived at by the employer." The facts reveal that when Ball was summoned into Doremus' office, he was immediately informed that he was being given a writeup for his work performance earlier that day. Ball was not ques- tioned, interviewed, or asked to clarify any details concerning the incident. Doremus relied solely on what he witnessed and did not seek any further in- formation in support of his action. Accordingly, we fmd that the interview was conducted merely in order to inform Ball of predetermined discipline. Baton Rouge, supra. Moreover, even assuming, arguendo, that Dore- mus summoned Ball to his office for the purpose of conducting an interview at which Ball had the right to have a union representative present, Dore- mus, immediately after Ball requested a union rep- resentative, took the writeup, said it would be in Ball's file, and terminated the meeting. Under these circumstances, we find that Doremus lawfully exer- cised his right to dispense with the interview en- tirely.11 Doremus suspended Ball in response to Ball's tearing up the writeup. The judge rejected the Re- spondent's assertion that Ball was suspended for destroying company property, fmding that Ball's conduct was "but an extension of his insistence on a union representative, and his refusal to sign the vvriteup in the absence of one." Further, the judge found that the suspension arose from the same dis- criminatory conduct that resulted in the unlawful work assignment and the writeup. Having found lawful the work assignment, write- up, and the denial of a union representative, we also find lawful the suspension. Contrary to the judge's finding, Ball's request for a union represent- 8 NLRB v. J. Weingarten, supra. Id. at 257. 18 Baton Rouge Water Works, 246 NLRB 995 (1979). The judge in his decision relied on the Board's decision in Certified Grocers of Cahfornia, 227 NLRB 1211 (1977), a case overruled in Baton Rouge. 11 Weingarten at 258. 1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ative did not trigger the suspension but rather re- sulted in the termination of the interview. It was only after Ball became angry and tore up the writeup that the Respondent suspended him. The judge found that the Respondent had not disciplined another employee, Payne, who had torn up a writeup. The Respondent's plant manager, Grunigen, testified that the Respondent's policy is to prepare a writeup, present it to an employee, and if, after discussion, the Respondent determined that the writeup was inappropriate, it would permit the employee to destroy the writeup. In the situa- tion cited by the judge, according to Payne's testi- mony, after Payne tore up the writeup, he was in- formed that the writeup would stand and also warned that he could be terminated for tearing up a writeup. Further, Grunigen's testimony indicates that Payne was permitted to tear up the writeup in accordance with the Respondent's aforementioned policy. We note that the Respondent's testimony regarding this incident is neither acknowledged nor discredited by the judge. Thus, we are not satisfied that the evidence shows that the circumstances sur- rounding the writeup incidents involving Payne and Ball were sufficiently similar or that Payne and Ball were disparately treated. Accordingly, we find the evidence insufficient to warrant a finding that the Respondent discriminated against Ball by sus- pending him. In sum, we find that the Respondent did not vio- late Section 8(a)(3) and (1) by giving Ball the work assignment, the writeup, and the suspension and did not violate Section 8(a)(1) by denying Ball's re- quest for a union representative. Accordingly, we shall dismiss these complaint allegations. 2. The judge found that the Respondent violated Section 8(a)(3) and (1) by suspending employee Frank Embry and suspending and discharging em- ployee Norman Jones because they engaged in union and protected concerted activities. The judge also found that the Respondent engaged in unlaw- ful surveillance of Jones and Embry in violation of Section 8(a)(1). For the reasons stated below we fmd merit in the Respondent's exceptions to these findings. In June 1979 an inspector from OSHA visited the Respondent's premises to ascertain whether the Respondent was requiring its 966 operators to use respirators when handling aluminum waste material which may emit ammonia fumes. During the course of the inspection the OSHA inspector ques- tioned separately employees Embry and Jones whether the employees were required to use gas masks in the course of their operations. Both re- sponded that they were unaware of the existence of any such masks or of their required use. While in the presence of the OSHA inspector both employ- ees individually voiced complaints about defective equipment. As a result of the inspection, the Re- spondent was given a citation and a $6000 fine. Two or three weeks after the OSHA inspection Foreman Joe Fulkerson told Embry "to watch his step because Plant Manager Grunigen would write him up or nail him for any reason." In September, Fulkerson told employee Ronald Ball "to tell Frank [Embry] they are watching every move that they make." Ball was also told by Foreman Mark Partridge in August "to go tell Norman Jones and Frank Embry to watch their step because Stan Doremus told him to write down every break they take and that they are watching every step they make." Subsequently, Embry filed a safety griev- ance in conjunction with other 966 operators and Jones complained to the Respondent on several oc- casions about the safety of the equipment. On 9 October Embry failed to use a gas mask while operating his cat. After having been fined by OSHA, the Respondent instituted a rule that the employees were required to use gas masks when operating the 966 cats, and the emloyees signed a form to the effect that they had been so advised. The form was silent concerning the consequences which would result from infractions to the rule.12 When summoned to Duncan's office to explain his oversight, Embry stated he had forgotten to use a gas mask because the weather was dry and there were no ammonia fumes. Duncan, not satisfied with Embry's explanation, suspended him. On 18 December Norman Jones was loading trucks bound for the Respondent's plant in Livia, Kentucky. In the course of the loading operation his 966 cat broke and he continued to load with a 920 cat, which resulted in considerable delay of the loading operation. One of the drivers who was waiting for his truck to be loaded asked Jones if that was the only equipment that he had available. When Jones answered in the affirmative, the driver told Jones he was not going to wait around and he and two other drivers left the Respondent's plant without having their trucks loaded. On 19 Decem- ber on his arrival at work, Jones was informed by Production Superintendent Doremus that he was being suspended for having loaded sow molds on the previous day, as well as on other occasions, on trucks bound for Livia, Kentucky." 12 Employee Norman Jones testified, however, that at the time he signed the form he was orally advised that failure to utilize the respira- tors could result in suspension or discharge. '3 The evidence reveals that the Respondent had previously admon- ished Jones against loading sow molds on trucks Although the Respond- ent asserts that another reason for Jones' suspension was his failure to load the trucks on the previous day, the written suspension notice given to Jones refers only to the loading of sow molds. On 21 or 22 December the Respondent converted Jones' suspension to a discharge. BARMET OF INDIANA 1027 The judge found the Respondent's asserted rea- sons for the suspensions to be pretextual and that Jones and Embry were suspended because they gave information to OSHA and/or because they filed grievances or complained about the safety of the equipment. Assuming, arguendo, that the Re- spondent's asserted reasons for the suspensions of Jones and Embry were pretextual, we find that the General Counsel failed to establish that the "real" reasons for their suspensions were related to their filing of grievances, union activities, or other pro- tected concerted activities. If the suspensions were in fact motivated by reasons other than job per- formance, the motivating factor would have to have been the employers' participation in the OSHA investigation, which resulted in a citation and fine of the Respondent and prompted Fulker- son's and Partridge's statements to Ball that Jones and Embry should "watch their step." The participation of Jones and Embry in the OSHA investigation, however, does not constitute concerted activity. In Meyers Industries, 281 NLRB 882 (1987) (Meyers II), we reaffirmed with further explication our holding in Meyers I, 268 NLRB 493 at 497 (1984), that an employee's activity is con- certed when "engaged in or on the authority of other employees, and not solely by and on behalf of the employee himself." We conclude that the participation of Jones and Embry in the OSHA in- vestigation does not meet the test of concerted ac- tivity under Meyers II. The record reveals that in the process of con- ducting an investigation of the Respondent's plant, the OSHA inspector singled out Jones and Embry to inquire about the Respondent's safety practices. Both employees were questioned individually, and there is no evidence that they in any way acted with or on the authority of each other or any other employees in answering the OSHA inspector's questions about the Respondent's failure to require the use of gas masks or in complaining about faulty equipment. Under these circumstances, their activi- ties constituted individual complaints and thus do not fall within the purview of concerted activity under Meyers II. Consequently, to the extent that the Respondent's actions would have been motivat- ed by the employees' participation in the OSHA in- vestigation, such actions would not be unlawful under the Act.14 We disagree with our dissenting colleague that Jones and Embry, in answering the questions posed to them by the OSHA inspector, were engaged in 14 For the same reasons, we find that the Respondent's "surveillance" of Jones and Embry, which the judge found was motivated by Jones' and Embry's conversations with the OSHA inspector, was not unlawful under the Act. concerted activity under the principles enunciated by the Supreme Court in NLRB v. City Disposal Systems, 465 U.S. 822 (1984). By informing the OSHA inspector that they were unaware of the ex- istence of respirators or of their required use, Jones and Embry did not assert a claim or invoke any provision of the collective-bargaining agreement. Jones and Embry did not complain about the lack of respirators or insist on their use. The fact that the collective-bargaining agreement provides that the Respondent is required to furnish employees with respirators is, without more, insufficient to justify a conclusion that Jones and Embry, by an- swering questions posed by the OSHA inspector, invoked a right derived from the collective-bar- gaining agreement.15 Although the judge in his discussion of the sus- pensions of Jones and Embry seemingly concludes that their OSHA activities caused their suspensions, the judge also states, without discussion, that their grievance filing or complaints about safe work equipment also motivated the Respondent to sus- pend them. We find that the judge's conclusion that such activity in any way caused their suspen- sions is unsupported by the record. The record reveals that a number of employees filed grievances over the safety of the equipment without suffering any retaliation by the Respond- ent. The Union's vice president, Roger Daniels, tes- tified that he investigated and filed a number of grievances without ever being disciplined by the Respondent. Moreover, as found above, employee Ronald Ball who filed 72 grievances in 1979 was not suspended for his grievance filing activities. Further, although Jones and Embry complained and filed grievances in conjunction with other em- ployees, there is no evidence that these other em- ployees suffered from having expressed their com- plaints. We fmd that our dissenting colleague relies on meager record evidence to support his conclusion that the conversations of Jones and Embry with the OSHA inspector constituted "union activity." We cannot conclude, as does the dissent, that these conversations occurred in the framework of com- pany-union meetings. In fact, neither the plant manager nor union president was in attendance during the initial questioning of Embry by the OSHA inspector. Further, we do not know what role the Union played in the OSHA investigation. There is nothing in the record to indicate that OSHA was summoned to the Respondent's prem- 15 We further note that there is nci general safety provision in the pax- ties' collective-bargaining agreement. Also, unlike City Disposal, there is no contractually prescribed right of employees to complain about equip-, ment safety or to refuse reasonably to operate unsafe equipment. 1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ises at the Union's request. Nor does the record reveal whether the union president was acting in his capacity as an individual or in some other role during the questioning of Jones and Embry. Under these circumstances, we cannot fmd, as does the dissent, that Jones and Embry by talking to the OSHA inspector were engaged in "union activity." In sum, we find that the Respondent did not vio- late the Act by suspending, discharging, or engag- ing in surveillance of Jones and Embry. Accord- ingly, we dismiss these complaint allegations. 3. The judge found that the Respondent, in vio- lation of Section 8(a)(3), imposed on the employees onerous working conditions by changing the pro- duction schedule for tapping furnaces and requiring employees to sign out for equipment. The Re- spondent excepts, contending that these changes were implemented for lawful reasons. We fmd merit in the Respondent's exception. During October and November 1979, the Re- spondent instituted various production policy changes, the first one of which consisted of requir- ing the employees who operated cats to sign out for the vehicles in order to make the drivers re- sponsible for any damage to the equipment. The Respondent also changed its production schedule for tapping furnaces from a rotating to a staggered basis. Under the new procedure two furnaces were tapped at one time and the other two at a different time, whereas previously all four furnaces were tapped at the same time. Ball questioned Doremus about the change in production schedule because a number of employees had complained to Ball that the change interfered with their lunch breaks. Dor- emus told Ball to question his foreman about the change, but Ball insisted that Doremus hear his complaints. A heated discussion developed includ- ing a shoving incident between Doremus and Ball. However, Plant Superintendent Grunigen took no action against either of them, and Ball did not file a grievance over the incident. The judge found that the production changes in- fringed on the employees' mobility and break peri- ods and were designed to lay the foundation for disciplining the employees. The record, however, does not support such a finding. Rather, the record shows that the change in the production schedule for tapping furnaces was instituted for legitimate business reasons, i.e., to facilitate their operation by not requiring that the four furnaces be charged and then tapped simultaneously. Further, under the terms of the collective-bargaining agreement be- tween the parties, the Respondent had the right to change or modify its production policies, as the Respondent had in fact done during the past 3 years. And as further evidence that the change was not unlawfully motivated, the Respondent, in re- sponse to the Union's complaint over the change, immediately added another employee to help with the operation, thereby reducing the interference with the employees' lunch breaks. Similarly, the Respondent's requirement that cats be signed out by drivers was dictated by the nu- merous incidents of damaged equipment at the hands of the operators. The Respondent discussed this change with the Union, which did not com- plain or file a grievance over the subject. Under these circumstances, we find the evidence insuffi- cient to establish that the Respondent's implemen- tation of these policies was discriminatory. Accord- ingly, we dismiss this complaint allegation. 4. The judge found that the Respondent violated Section 8(a)(3) and (1) by discharging Supervisor Leo Alvey. The Respondent excepts, contending that Alvey was fired solely for refusing to follow orders. We fmd merit in this exception for the fol- lowing reasons. On 9 November Supervisor Leo Alvey noticed that one of the cats was leaking hydraulic fluid. Alvey informed Garage Superintendent Duncan, who responded that the cat had been repaired and instructed Alvey to direct his men to operate the cat. Alvey refused, stating that the cat was defec- tive and that on four previous occasions it had caught on fire. Duncan informed Grunigen that Alvey had refused to assign men to work with the cat, and Grunigen discharged Alvey. The judge found that Alvey's refusal to assign men to work with the unsafe cat was an assertion of the employees' right to grieve over safety mat- ters and consequently that Alvey's actions were protected. In Parker-Robb i 6 the Board held that the protec- tion of the Act does not extend to supervisors who are disciplined or discharged as a result of their union or concerted activities. In so doing, the Board recognized that the discharge of the supervi- sor for engaging in union or concerted activity almost invariably has secondary effects on rank- and-file employees, but this coincidental effect is insufficient to warrant an exception to the general statutory provision excluding supervisors from the Act's protection. Accordingly, we fmd, for the rea- sons set forth in Parker-Robb, that Alvey's dis- charge was not unlawful, and we dismiss this com- plaint allegation. 1 7 16 Parker-Robb Chevrolet, 262 NLRB 402 (1982). 17 Although the Board in Parker-Robb set forth limited exceptions under which the discharge of a supervisor may violate the Act, the facts surrounding Alvey's discharge do not fall within the scope of any of those recogmzed exceptions BARMET OF INDIANA 1029 5. The judge found that the Respondent violated Section 8(a)(1) by interrogating Ronald Ball about his union activities. The Respondent excepts, argu- ing that the comment made to Ball was in no way threatening or coercive. We agree. In October Alvey asked Ball how the employees were trying to get out of MIRA, 18 adding that they would not be able to get out and that it would be useless for them to try. Contrary to the judge, we find that this questioning did not constitute an unlawful interrogation. The standard to determine whether an interroga- tion violates the Act is whether "under all of the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act." 18 The person questioned, Ball, was the union steward and an active union supporter. Moreover, the questioning was not unaccompanied by any threat or promise. Under these circum- stances, we find that this questioning was not coer- cive and accordingly dismiss this allegation of the complaint. 6. The judge found that the Respondent violated Section 8(aX1) by engaging in unlawful surveil- lance of Ronald Ball. The basis for this finding was a conversation between Supervisors Doremus and Mark Partridge in August or September in which Doremus told Partridge, "Ball has got to go and if Ball makes one single mistake he will be out of the gate." We find nothing unlawful in this conversation. The conversation was between two supervisors, the record does not otherwise reveal the context in which it occurred, and the statement does not in itself support a fmding that the Respondent en- gaged in actual surveillance of Ball, as alleged.2° Further, while there is evidence that Ball learned of this statement, we find it does not violate Sec- tion 8(a)(1) when there is no evidence that the re- marks were tied to Ball's union or protected con- certed activities. Accordingly, we dismiss this com- plaint allegation. The Respondent's employees are represented by Local No. 55 of the International Molders and Allied Workers Union, AFL-CIO-CLC, which is a party to a conference agreement negotiated with the Manufac- turers Industrial Relations Association (MIRA) of which the Respondent is a member. Since July 1979 the Union had made several unsuccessful attempts to negotiate a new contract directly with the Respondent. 19 Rosstnore House, 269 NLRB 1176, 1177 (1984), quoting Blue Flash Express, 109 NLRB 591 (1954). 2° For the reasons stated by the judge, we find that the Respondent violated Sec. 8(aX1) by promulgating and enforcing a rule against em- ployees filing grievances on company property at any tune. Accordingly, we shall order the Respondent to cease and desist from this conduct and post an appropriate notice to employees. ORDER The National Labor Relations Board orders that the Respondent, Barnit of Indiana, Inc., Rockport, Indinna, its officers, successors, and assigns, shall 1. Cease and desist from (a) Promulgating and enforcing a rule against employees filing grievances on company property at any time. (b) In any like or related manner interfering with, restraining, or coercing the employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at the Respondent's plant in Rockport, Indiana, copies of the attached notice marked "Ap- pendix." Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director , in writing within 20 days from the date of this Order what steps the Respondent had taken to comply. IT IS FURTHER ORDERED that the remaining Com- plaint allegations be dismissed. MEMBER JOHANSEN, concurring and dissenting in part. I concur in the violation found. For the reasons set forth below, however, I also find that the Re- spondent violated Section 8(a)(1) and (3) by sus- pending employee Embry and suspending and dis- charging employee Jones. I further fmd that the Respondent violated Section 8(a)(3) and (1) by writing up and suspending employee Ball. In June 1979 an inspector from OSHA visited the Respondent's plant to determine whether the Respondent was requiring its cat operators to use respirators when handling aluminum waste materi- al. During his visit, the OSHA inspector questioned employees Embry and Jones separately about the use of gas masks. The record shows that certain of the questioning of each employee took place in the presence of the Respondent's plant manager and the Union president. Article VIII of the collective-bargaining agree- ment between the Respondent and the Union reads in relevant part as follows: 1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Safety Devices & Wearing Apparel Safety devices, wearing apparel and other equipment that a member of the Assoication considers necessary for the protection and safety of his employees, such as gloves, gog- gles, face shields, respirators, except safety shoes, shall be furnished by the company to the employees without cost except that the company may assess a fair charge to an em- ployee to cover loss or willful destruction to these by an employee. In NLRB v. City Disposal Systems, 465 U.S. 822 (1984), the Supreme Court approved the Board's Interboro doctrine,' under which an individual's reasonable and honest assertion of a right grounded in a collective-bargaining agreement is recognized as concerted activity. The collective-bargaining agreement in this case states that the Respondent shall provide unit employees with necessary safety devices. The contract specifically mentions respira- tors, the subject of the OSHA inspector's questions to Embry and Jones. When Embry and Jones indi- vidually cooperated with the OSHA inspector by answering his questions concerning the Respond- ent's use of respirators, they were engaged in the implementation of a right contained in the collec- tive-bargaining agreement. I therefore find that under City Disposal, the June 1979 OSHA-related conduct of Embry and Jones constituted protected concerted activity under Section 7 of the Act. I further fmd that the OSHA-related conduct of Embry and Jones which occurred in the presence of the Respondent's plant manager and the Union's president was "union activity." The employees were individually summoned to what were in es- sence meetings between the Company and the Union. With the plant manager and the union presi- dent in atttendance, each employee was asked ques- tions pertaining to working conditions at the plant. Given the particular circumstances of the question- ing, and the subject matter, I fmd that employees Embry and Jones participated in a company-union meeting and thus were engaged in union activity.2 I agree with the judge's conclusion that the Re- spondent's asserted reasons for suspending Embry and Jones were pretextual. With respect to Embry, I particularly rely on the fact that the Respondent did not follow the disciplinary procedure contained in its supplemental agreement with the Union. The agreement lists nine infractions as grounds for ii- 1 Interboro Contractors, 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (2d dr. 1967). 2 Having found that Embry and Jones engaged in protected activity by cooperating with the OSHA inspector in June 1979, I find that the Re- spondent's subsequent comments that it was "watching" Embry and Jones were in response to that activity and thus violated Sec. 8(a)(1). mediate dismissal. That categorir does not include "violation of safety rules," which instead is listed as an infraction covered by a four-tier progressive discipline system. The system provides for a verbal reprimand for the first offense, a written reprimand for the second offense, a 3-day layoff for the third offense, and discharge for the fourth offense. The record does not show that Embry had failed to wear a respirator on any occasion before he was suspended.3 In addition, the Respondent's suspen- sion of Jones was not in accordance with the disci- pline system set forth in the supplemental agree- ment. "Unsatisfactory job performance" appears in the category of infractions that is governed by the four-tier progressive discipline system. Again, the record does not show that Jones' suspension and eventual discharge comported with the supplemen- tal agreement. In sum, I find that Embry and Jones separately engaged in protected activity in June 1979 by an- swering the OSHA inspector's questions concern- ing respirators. I further find that the Respondent's asserted reasons for the suspensions were pretex- tual, and that the Respondent violated Section 8(a)(1) and (3) by suspending Embry and Jones for cooperating with the OSHA inspector. Employee Ball was the Union's chief steward. In the past Ball filed many grievances on his own behalf and on behalf of unit employees. On 8 No- vember 1979 Ball filed a grievance with Produc- tion Superintendant Doremus concerning the de- fective brakes in another employee's cat. When Ball presented the grievance he told Doremus there were "other means I can go about this, if you don't want to fix the cat . . ." Later that day Ball and employee Howerton were assigned the task of loading salt lumps on trucks bound for the Respondent's Livia, Kentucky plant. Ball com- plained about having to use a 920 cat with forklifts instead of the usual 966 cat with a bucket. Ball and Howerton performed the work pursuant to Plant Manager Grunigen's direction. Also present during the work were Doremus and Garage Superintend- ent Duncan. In directing the work, Grunigen in- structed Ball to remove salt lumps from the middle and top of the pile, while Howerton was assigned the less difficult task of removing lumps from the bottom of the pile. Removing salt lumps from the middle and top of the pile necessitated Ball's driv- ing over materials to pick up the lumps identified by Grunigen. At no time during the loading did Grunigen, Doremus, or Duncan speak to Ball 3 I also note the testimony of current employee Howerton that he had been observed by a supervisor while hauling aluminum waste without using a respirator and had not been disciplined. BARMET OF INDIANA 1031 about his handling of the cat. Howerton testified that after finishing the assignment, Ball returned to his regular work station and the three supervisors laughed as they talked about Ball. Later that afternoon Doremus called Ball into his office and gave him a disciplinary writeup for operating the cat improperly during the salt-load- ing assignment. Doremus asked Ball to sign the writeup. Ball demanded a union representative. Doremus took the writeup from Ball and told Ball it would be in his record. Ball repeated his request for union representation, grabbed the writeup, tore it up, and threw it in the trash can. Doremus told Ball he was suspended. Ball sought out the Union's vice president and went to Grunigen'S office. Ball asked Grunigen for the reason for the writeup. The record shows that Grunigen told Ball that he had run over materials, shifted the cat too hard, and drove the cat too fast. Ball explained that running over materials was un- avoidable because he did not have a bucket on the 920 cat and could not clean up the floor. Ball stated he could not have been going too fast be- cause the cat was locked in one gear. Ball denied shifting the cat too hard. Grunigen then told Ball he was suspended because he tore up the writeup. In finding Ball's writeup and suspension unlaw- ful, the judge credited Ball's testimony with respect to the manner in which he operated the cat. The judge based his credibility finding on the fact that at no time during the salt-loading assignment did any member of management direct Ball to drive the cat slower or to cease driving over materials. My colleagues find that the basis for the judge's credibility resolution is not a logical ground for re- jecting the Respondent's contention that Ball oper- ated the cat improperly. To the contrary, I find the judge's basis for crediting Ball's explanation of the salt loading to be reasonable. Ball's performance of the salt-loading assignment was observed by three of the Respondent's top managers. Plant Manager Grunigen directed the loading operation, thus establishing that the manag- ers were able to communicate with the cat opera- tors. None of the managers brought to Ball's atten- tion any problem they supposedly had with his handling of the cat. At the end of the operation the three managers were seen laughing. It was not until later in the day that Ball was in- formed that he had operated the cat improperly. In management's view, Ball's operation of the cat was unsafe, and his manner of loading the salt was "hostile." Yet three of the Respondent's top man- agers silently stood by during the salt loading as Ball presumably jeopardized the safety of employ- ees and threatened to damage company equipment. What seems illogical to me in these circumstances is the silence of the supervisors while supposedly witnessing serious mishandling of company equip- ment. I further question the validity of the improp- er operation charge in light of the fact that the managers were laughing at the completion of the work assignment. Contrary to the majority's implication, Ball's ex- perience in operating a cat does not somehow alter the perspective to be applied to the conduct of the Respondent's managers during the salt-loading op- eration. Had Ball engaged in serious misconduct, one would reasonably expect that one of the man- agers in attendance would have raised the matter with Ball during the operation. The fact that no such matter was raised indicates that there was no cause to have done so. The majority also relies on Ball's failure to deny Grunigen's accusations. How- ever, Ball's testimony reveals that he did deny shifting the cat too hard, that he explained the una- voidability of running over materials, and that he disputed Grunigen's claim that he drove the cat too fast. It is true that Ball was not happy about using a 920 cat to perform the work, but that fact by itself hardly proves the Respondent's contention that Ball operated the cat improperly. In view of all the circumstances, I find the judge's crediting of Ball's explanation concerning his operation of the cat to be entirely reasonable. Other aspects of the Respondent's handling of Ball's writeup and suspension show that the Re- spondent departed from its customary procedures in dealing with Ball. As the majority clearly points out, the Respondent's policy with respect to wri- teups is to prepare the writeup, present it to the employee, and if after discussion the Respondent determines that the writeup is inappropriate, the writeup is destroyed. Production Superintendent Doremus testified that upon presenting Ball with the writeup, he told Ball to sign the document and, if Ball did not agree with the writeup, to record his disagreement on the writeup and then grieve the matter. Contrary to company policy, Doremus did not provide Ball with an opportunity to discuss the writeup. Ball's unsuccessful efforts to discuss the merits of the writeup with Doremus eventually led to his tearing up the writeup, for which he was suspended. The judge found, however, that em- ployee Payne had once torn up a writeup and was not disciplined. The majority, largely relying on Grunigen's testimony, attempts to show that Payne's destruction of the writeup was consistent with company policy, and that Ball was not treated disparately. Initially, the record shows that Gruni- gen was not present at the incident involving Payne. Payne's testimony reveals that after he tore 1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD up the writeup, he was informed that the writeup would stand. Payne's tearing up the writeup there- fore was not in accordance with company policy providing for the destruction of a writeup if it is determined to be inappropriate. Thus, Payne was not disciplined for tearing up a valid writeup. Ball, on the other hand, was suspended for tearing up what I fmd to be a groundless writeup. As chief steward, Ball had been active in filing grievances under the contract. In August and Sep- tember 1979 the Respondent unlawfully promulgat- ed a rule prohibiting employees from filing griev- ances on company property. Ball was specifically told not to write grievances on company property. Ball further testified that Foreman Partridge told him that in September 1979 Production Superin- tendent Doremus remarked to Partridge that "Ball has got to go, if Mr. Ball makes one little mistake he will be out the gate." The Respondent made similar comments at this time with regard to em_- ployees Embry and Jones. I have found that these comments related to Embry and Jones' cooperation with the OSHA inquiry into respirators. Embry and Jones were later suspended for their protected activity. On 8 November 1979 Ball filed a safety griev- ance on behalf of another unit employee. When presenting the grievance to Doremus, Ball men- tioned there were "other means" by which he could go about to get the equipment repaired. I find that Ball's mention of "other means"was a ref- erence to his willingness to enlist the aid of OSHA to help resolve the grievance. Later that same day Ball was assinged the salt-loading operation which led to his writeup and suspension. Because I have found that Ball did not improperly operate the cat during the salt-loading assignment, and that the Re- spondent subjected Ball to disparate treatment with respect to his writeup and suspension, I fmd that the Respondent's asserted reason for disciplining and suspending Ball was pretextual. Instead, I find that Ball was disciplined for his grievance-filing ac- tivity in violation of Section 8(a)(3) and (1) of the Act. APPENDIX NOTICE To EMPLOYEES POST'ED 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. WE WILL NOT restrain or coerce our employees in the exercise of their protected rights by promul- gating and enforcing a rule against employees filing grievances on company property at any time. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. BARMET OF INDIANA, INC. Frederick a Winkler, Esq., for the General Counsel. Lawrence F. Raniszeski, Esq. (Colombo and Colombo), of Birmingham, Michigan, for the Respondent. DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge. On charges of unfair labor practices filed in Cases 25-CA- 11543 and 25-CA-11791 on November 13, 1979, and January 29, 1980, respectively, by -Local No. 55, Interna- tional Molders and Allied Workers Union, AFL-CIO- CLC (the Union), against Barmet of Indiana, Inc. (Re- spondeht), the General Counsel, on behalf of the Region- al Director for Region 25, issued complaints in Case 25- CA-11543 on December 27, 1979, in Case 25-CA-11791 on February 29, 1980, and in an amended complaint in Case 25-CA-11543 on March 10, 1980. In substance the complaints alleged that Respondent interfered with, restrained, and coerced its employees in the exercise of Section 7 rights, by assaulting and injur- ing an employee and chief union steward for joining and supporting the Union and filing grievances under the contract; by interrogating employees about their and other employees' union membership, activities, and sym- pathies; by promulgating and enforcing a rule against employees engaging in or conducting union business on Respondent's property at any time; by promulgating and enforcing a policy by which Respondent denied employ- ees the right to be represented by the Union or a repre- sentative of their choosing during interviews with the Respondent, in which employees had reasonable cause to believe disciplinary actions would result therefrom; by in fact conducting interviews pursuant to the policy in defi- ance of employee's request to be represented; by sus- pending and/or discharging an employee who had re- quested to be represented by the Union or other repre- sentative; and by discharging a supervisory employee for refusing to order employees to operate unsafe equipment; by threatening employees with unspecified reprisals for filing charges with the Occupational Safety and fle.alth Administration (OSHA); by threatening employees with discharge or other reprisals for engaging in union activi- ty and concerted activities because the employees either filed complaints with, or cooperated in an investigation conducted by OSHA, and because Respondent believed employees had filed or would file with OSHA, or be- cause the employees engaged in union and concerted ac- tivities; and by giving employees the impression that it kept under surveillance the Imeeting places,, meetings, and activities of the Union, or other concerted activities of BARMET OF INDIANA 1033 the employees, all in violation of Section 8(a)(1) of the Act. The complaints also alleged that Respondent discrimi- nated against employees by suspending and/or discharg- ing and imposing more arduos and less agreeable work- ing conditions on them because either they requested a union or other representative during an interview in which they believed disciplinary action was going to be imposed against them, and/or because they engaged in union or concerted activities for their mutual aid and protection, in violation of Section 8(a)(3) of the Act. Respondent filed answers to the complaints that were amended on January 7 and March 12 and 13, 1980, re- spectively, denying that it has engaged in any unfair labor practices as alleged in the amended complaints. On May 30, 1980, the Regional Director, pursuant to Section 102.33 of the Board's Rules and Regulations, consolidated the above-captioned cases for a hearing. The hearing in the above matter was held before me in Owensboro, Kentucky, on June 9, 10, and 11, 1980. Briefs have been received from counsel for the General Counsel and counsel for Respondent, respectively, which have been carefully considered. On the entire record in this case, and from my obser- vation of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is, and has been at all times material, a corporation organized under, and existing by virtue of, the laws of the State of Ohio. The Respondent has main- tained an office at Akron, Ohio, and a place of business at Rockport, Indiana (the facility), where it is, and has been a all times material, engaged in the reprocessing, sale, and distribution of aluminum and salt. During the past 12 months, a representative period, Respondent in the course and conduct of its business op- erations sold and shipped from its facility products, goods, and materials valued in excess of $50,000, directly to points outside the State of Indiana. During the same period, Respondent purchased and received at its facility products, goods, and materials valued in excess of $50,000, drectly from points located outside the State of Indiana. Its gross revenues for the period were in excess of $500,000. The complaint alleges, the answer admits, and I find that Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. IL THE LABOR ORGANIZATION INVOLVED The complaint alleges and the Respondent neither admits nor denys that Local No. 55, International Mold- ers and Allied Workers Union, AFL-CIO-CLC (the Union or Charging Party) is, and has been at all times material, a labor organization within the meaning of the Act; and I therefore fmd, in the absence of a denial, that the Charging Party Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts Respondent is an Ohio corporation with its principal offices in Akron, Ohio, and a place of business at Rock- port, Indiana, at which facility it is engaged in the re- processing, sale, and distribution of aluminum and salt. More specifically, the material is brought to the Rock- port plant where it is processed through a rotary furnace and additional aluminum is reclaimed through the proc- ess. A byproduct of that process is then recycled again for additional reclamation of aluminum. The Respondent has additional plants in Uhrichsville, Ohio, and a plant known as Barmet of Kentucky, in Livia, Kentucky. At all times material, except as indicated otherwise, the following named persons occupy positions set oppo- site their respective names, and are now, or were, super- visors of the Respondent within the meaning of Section 2(11) of the Act, and agents of the Respondent within the meaning of Section 2(13) of the Act: John A. Grunigen Jr., plant manager; Darrell Duncan, garage superintendent; Stan Doremus, production super- intendent; Tom Morris, personnel manager; Curtis Ricker, foreman; Sheldon Blincoe, foreman; E. Byron Oost, foreman; Gary Adams, foreman; Carl Leo Avey, production foreman until November 9, 1979; Joseph Ful- kerson, production foreman until an unknown date in October 1979; and Mark Partridge, foreman. Also, at the trial, the parties stipulated that Ron Miller and Gary Chapman have been and are now, agents of Respondent acting on its behalf, and are supervisors within the meaning of Section 2(11) of the Act, and are agents of Respondent within the meaning of Section 2(13) of the Act. Respondent's employees at its Rockport, Indiana facili- ty are represented by Local 55 and are carried by a con- tract negotiated between the Union and the Manufactur- ers Industrial Relations Association (MIRA). Respondent is a member of MIRA and the different locals affiliated therewith, negotiate supplemental agreements covering the employees in the respective employer facilities. In or about July 1979, the Union (Local 55) attempted negoti- ating directly with Respondent for a new contract. Sub- sequent to an unsuccessful written request by the Union to Respondent to negotiate, the Union retained an attor- ney to represent them, who repeated the request in let- ters to the Union, the Respondent, and the International. Since July 1979, efforts were made by Local 55 to disas- sociate the Union from the so-called conference agree- ment (involving MIRA). The most active union members in this effort were: Robert Stateler, president of the Local, Roger Daniels, vice president, and Ronald (Ronnie) Ball, chief stewart at the Rockport facility. Stanley Doremus, plant production superintendent for Respondent, had eight foremen and two superintendents under his supervision. About June 1979, an inspector from OSHA held a dis- cussion with Plant Manager John Grunigen and employ- ee Frank Embry concerning Embry's operation in and about free dross, which occasionally emitted heavy 1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD chemical fumes. Respondent received a citation from OSHA as a result of the inspection for failure to train 966 operators to use respirators when working in live dross; and for failing to document that 966 operators were taking respirators onto their cat vehicles. A mone- tary penalty of $6000 was assessed against Respondent for these omissions. However, immediately thereafter, Respondent instruct- ed its operators on the use of respirators, had them to sign an acknowledgement that they had been so instruct- ed; that they would check out and check in the repira- tors (masks) daily and have them with them at all times when operating a 966 loader. The written acknowledge- ment that the operators signed did not provide that fail- ure to comply with the respirator requirement would result in their suspension or discharge. Although Re- spondent contend the operators were so advised, orally, the testimony in this regard is not explicit, and is in fact quite conflicting.' B. Union Activity and Conversations Between Employees and Management Subsequent to the Union's Efforts to Negotiate Directly with Respondent Chief Steward Ronald (Ronnie) Ball undisputedly tes- tified that in August 1979,2 while trying to resolve a grievance about a cat (front-end loading machinery, op- erated with a set of forks or a bucket), he went to the office of Garage Superintendent Darrell Duncan and the following conversation ensued: Q. Now what was said by you and what was said by him? A. Ok, uh I asked him about this problem and he told me that. I told him if we don't get it settled I am going to have to write a grievance on it. Ok he told me I don't care how many grievances you write but it will have to be on your time and not on compa- ny property. I asked him if break time is my time and he said no as long as you are on company property you can not write any kind of grievances. Ball testified that in late August he had the following conversation with Foreman Mark Partridge: A. Mark told me, he said Ronnie as a friend go tell Norman Tones and Frank Embry the twa 966 drivers to watch their step because Stan Doremus told him to take a note pad and write down every break they take, even when they go to the bathroom and use the bathroom he said they are watching every step they make, and he told me to tell them two to really watch what they are doing because he don't want to see them lose their jobs, so I relayed the message. Ball testified that about September, during his break and while working on a grievance, Foreman Mark Par- tridge said to him, "Ronnie, as a friend do not write that grievance on company property because you can get in trou- The above facts were not disputed and are not m conflict in the record. 2 All dates refer to the year 1979, unless specified otherwise. ble about it, they can tear the grievance up or you can get suspended." Partridge corroborated Ball's testimony in this regard. Ball said he stopped working on the griev- ance immediately. Ball further testified that in September, he had a con- versation with Production Foreman Joseph (Joe) Fulker- son which he described as follows: Q. And what did he tell you? A. Ok Joe told me that, tell Frank they are watching every more that they make. They want Joe to do the same thing what they told Mark to do, to write down everything that he did, when he took his breaks, when he went to the bathroom, just watch him and if he make one mistake they are going to can him. While in the presence of fellow employee Bill Harding in October, Ball testified that the following conversation occurred between himself and Supervisor Leo Alvey: A. Ok, Leo asked me some questions, he said how are you planning on getting out of MIRA and he said you can't get out of it and there is no need for you all to try. I said well it is up to the Labor Board and what ever the Labor Board decides I said that be the answer and I said really it is none of your busi- ness what happens in the interior of the Union and that was it. Ball further testified that in late October, Plant Manag- er John Grunigen changed company policy of unas- signed cats to requiring operators to sign out a cat for which he was made responsible, and for which he would be written up for any damage occasioned by the opera- tor. Subsequently, several operators were written up for damage to a 920 cat, of which there were four. The cats were also driven by maintenance personnel. C. Other Union and Concerted Activity of Chief Steward Ronnie Ball The undisputed evidence of record established that at some unknown date around the first part of November, Respondent (Production Superintendent Stan Doremus) directed a change in the procedure of tapping furnaces, from a rotating to a staggered basis. That is, the employ- ees were directed to tap furnaces "A" and "B" at 9 a.m., and to tap furnaces "B" and "D" at 11 a.m., this change in the mode and time of tapping the furnaces affected the employees' breaks and lunch periods. Subsequently, Ball said 90 percent of the 32 employees complained to him that they did not like the staggered tap because they ex- perienced inconveniences as a result of the elimination that caused substantial modification in their break and lunch periods. On cross-examination, Ball also acknowl- edged that the change in the tapping procedure required the addition of a fifth man, whom he contends took work from them, but later acknowledged, provided op- portunity for them to have their breaks. Foreman Mark Partridge testified that, in late August, Doremus instructed him not to allow Ball to get away with anything; that the least little thing Ball would be BARMET OF INDIANA 1035 out of the gate. He further testified that in September 1979 the following conversation with Doremus occurred: A. I went to him and I explained to him that the tapping, staggered tapping system of the four fur- naces was not working. It was decreasing our pro- duction level and decreasing the morale of the men and he told me that that's the way its going to be and that's the way it's going to stay. Q. Do you recall did he give you any other reason? A. He told me that it would keep the men on the floor at all times; that their breaks would be very far in between but they would get more than five or six hours work out of it. Partridge further testified that production declined as a result of the new tapping schedule instituted by Dore- mus. He was discharged from Respondent in January 1980, by Plant Manager Grunigen, allegedly for not fol- lowing company policy, and he was told he was not di- recting his people properly. Pursuant to the above employee complaints, Chief Steward Ball said he asked Superintendent Doremus for an appointment to discuss the furnace tapping change and that Doremus responded he did not have to give him (Ball) an appointment. A heated argument ensued between Ball and Doremus. According to a composite of the essentially undisputed and credited testimony of Dor- emus, Ball, Kenneth Jones, and Terry Gubler, it was es- tablished that in the course of Ball walking towards Dor- emus during the argument, Doremus stuck out his hand forward and the impact from the force of Doremus' hand going forward, coupled with the impact from the inertia of Ball's forward movement, caused Ball to fall backwards, with his helmet falling to the ground. A few minutes later, Ball repeated and insisted on an appoint- ment with Doremus, and the latter told him to go to his foreman. Ball went to Union President Stateler who ac- companied him to the office of Plant Superintendent John Grunigen. Stateler asked Grunigen what was he going to do about the pushing incident involving Dore- mm and Ball. Ball testified that the remainder of the conversation was as follows: A. Ok and Bob talked to him about it and he called Leo Alvey the foreman that was down there with me, he called Leo .Alvey and asked him did he see me get pushed by Stan Doremus. Leo said that I actually didn't see him get pushed, but I see him fall and the helmut [sic] flew off his head. Bob and John Grunigen then talked a little bit more and he never did say what he was going to do about it. He said that he didn't tollerate [sic] that and Bob said it isn't over with yet, then we walked out of the office. Ball further testified that on November 8, he and Terry Gubler filed a safety grievance on behalf of Gubler oper- ating a breakless cat. Ball said he gave the grievance to Supervisor Stan Doremus and he testified that the con- versation was as follows: Q. Do you recall anything else you told Mr. Doremus with regards to the grievance? A. Yes I do, I told him that there is other means I can go about this operating at KAT [sic] unsafe, I said there is other means I can go about this, if you don't want to fix this Kat [sic] and that is all I said. On the next day, Ball testified that Leo Alvey came to him and said Stan Doremus wanted him to load the salt trucks with a 920 cat (front-end loader, with forklifts). Generally, Ball said a 966 (bigger cat) with a larger bucket is used to perform the job he was directed to per- form. He said this was the first and only time he was or- dered to load salt with a 920 cat. Nevertheless, he said after lunch he saw Superintendent Doremus and asked him was he (Ball) going to receive 966 pay for loading with the 920 cat. He said their conversation continued as follows: A. Stan Doremus. Stan said I don't have nothing to do with it, you talk to John Grunigen. At that time I just went ahead and loaded the truck, I never said no more about it. Q. Was there anybody directing you what to load and where to load? A. Yes he did. Yes there was. Q. Who did that? A. John Grunigen. He pointed out lumps for me to pick up to load and some of them lumps were lo- cated to where I had to move a couple of lumps to get to them. Q. Were they at the bottom of the pile or at the top of the pile? A. Fifty percent of them were at the top of the pile where I had to get to the lump to load them. Q. Is it normal procedure for the Plant Manager to direct the loading of salt trucks? A. No. Present during the salt loading with the 920 cats were Plant Manager John Grunigen, Garage Superintendent Darrell Duncan, and Production Superintendent Stan Doremus. Ball said he and fellow employee Howerton proceeded to load the salt according to the directions of Manager Grunigen, who directed Howerton to pick up from the bottom of the pile with the forklifts, while he was directed by Grunigen to pick up from the middle of the pile ith forklifts, which was more difficult. Employee Howerton corroborated Ball's testimony with regard to Grunigen's directing them to load the salt trucks on No- vember 8. He also stated that that was the first occasion on which he had ever seen a 920 used to remove the salt. He also stated that he could hear Doremus and the other management officials laughing in reference to Ball's ef- forts to move the salt. Ball further testified that later that day, about 3:45 p.m., Foreman Leo Alvey told him he was wanted in Stan Doremus' office. When he reported to the office, Doremus asked him to sign a disciplinary writeup. Ball said he asked Doremus why was he given a writeup and Doremus replied; for using the cat improperly. Ball asked Doremus how was he using the cat improperly 1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and the latter did not reply. Ball then told Doremus he wanted a union representative present, and Doremus did not reply. Ball repeated his request and Doremus "grabbed" the writeup and told him he was going to put it in his record. Thereupon, Ball said he "grabbed" the writeup back and insisted that he wanted a union repre- sentative. At that time, Superintendent Darrell Duncan said he did not need a union representative on a writeup. Ball said he got angry and tore up the writeup and threw it in the trash. Duncan then said, suspend him, get him out of here and take his hardhat and glasses. Ball again told Doremus he wanted the union representative and Doremus said, "No, you're suspended." Thereupon, Ball went to Union Vice President Dan- iels, who accompanied him to Plant Manager John Grunigen's office, where Grunigen, Darrell Duncan, and Stan Doremus were present. Ball then asked Grunigen why he received the writeup and Grunigen responded, "You ran over materials and was shifting the KAT [sic] too hard." Ball replied that he could not have been going too fast because the cat was locked in one gear. He said he explained that he did not have a cleanup bucket to scrape the floor, so he had to run over the ma- terials and he (Grunigen) was pointing out which salt lumps he wanted picked up. Grunigen then said Ball tore up the writeup. Consequently, Ball was suspended No- vember 8. In this regard Union Vice President Daniels stated that on the date Ball was suspended, Duncan told him employees did not have to have a union representa- tive on a written/verbal warning. At the time of the latter statement he testified Duncan said Respondent was only interrogating employees about damaged property. However, Daniels stated that Respondent's Exhibit 2 says an employee may have a representative present whenever he has a complaint to discuss with manage- ment. To his knowledge, employees received oral warn- ings and none have received a formal written warning. On cross-examination, Ball acknowledged that on No- vember 13 he was offered his job back with conditions and he declined to accept it. Ball further testified that in response to the grievance he filed on November 14 about his suspension, he was reinstated in the third step with partial backpay, that is for the time after 30-day suspension. He was reinstated on January 27, 1980. Nevertheless, he returned to work on January 27, 1980. He also acknowledged he was aware of plant rules cited in Respondent's Exhibit 1, page 8 under topic "Plant Work Rules," second para- graph, "Words." Maintenance employee William Payne was called to the office of Superintendent Charlie Dillon in October and given a writeup for not forming the furnaces accord- ing to the recently changed directive. In the presence of Superintendent Darrell Duncan and Foreman Gary Adams, Payne testified he refused to sign the writeup, tore it up, and threw it in the trashcan. He said Duncan said the writeup will stand. However, he was not sus- pended because he tore up the writeup, although he was told by Dillon and Duncan that he could be terminated for tearing up the writeup. Ball further testified that while he was suspended,, and after Leo Alvey was terminated subsequent to November 9, he held the following conversation with Alvey: A. Ok Leo, we was talking and Leo told me that uh Stan Doremus asked him to ask questions, for him to get any information he could about this MIRA deal Told Leo to question the employees and to see what kind of information they can get about this MIRA and that is about what was said about it, what Leo said. Ball's testimony is corroborated in this regard by former Supervisor Leo Alvey. About September, Ball said he had another conversa- tion with Foreman Mark Partridge, which was as fol- lows: A. Mark Partridge told me, he said now Ronnie, there is something that I want to tell you that Stan Doremus said after one of us is gone here, because I don't want to say it now. When I got suspended I called him up, a week after I was suspended, and I asked Mark, I said Mark what was it that you was wanting to tell me. He said that Stan Doremus told him that Mr. Ball has got to go, if Mr. Ball makes one little mistake he will be out the gate. Carl Leo Alvey was employed by the Respondent in May 1978, until he was discharged on November 9, 1979, for refusing to use a defective and unsafe cat. He testified that while serving as a supervisor, he attended a meeting in September or October during which company officials, John Grunigen, Darrell Duncan, and Stan Dor- emus insisted on himself and other supervisors writing up the men for anything to get the men who had been em- ployed more than 3 years, because as Doremus said, ne- gotiations for a new contract was coming up soon. In late September, Alvey said Stan Doremus told him and Sheldon Blincoe to go and ascertain where Ball was and to tell him there was no way the Union could get him out of MIRA; and that they (employees) were wasting their money on their lawyer. During the first part of October, Alvey testified that Manager Grunigen, Superintendent Darrell Duncan, and Foreman Stan Doremus told the supervisors to make it hard on the men because contract time was coming up and they were trying to get out of MIRA. Analysis and Conclusion The undisputed and credited evidence of record shows that an inspector from the OSHA talked with Plant Man- ager John Grunigen and cat operator Frank Embry about June 1979, regarding ammonia fumes and working conditions with live dross at Respondent's facility. When he asked Embry if there were any problems with the am- monia condition, Embry told him the ammonia condition was good because the weather was dry. The inspector then told him that Respondent had been cited for ammo- nia fumes and had been ordered to install gas masks on the 966 cats. Embry told the inspector he had not seen or did not know anything about gas masks being re- BARMET OF INDIANA 1037 quired on the 966 cats, but there was a steering problem with the cat he operated. As a result of the inspection, an OSHA citation was given to Respondent imposing a penalty of $6000. The evidence is not clear what initiated or occasioned the OSHA inspection. Nevertheless, the credited evidence shows that 2 weeks after the OSHA inspection, Foreman Joe Fulkerson told Embry to watch his step because Plant Manager Grunigen would write him up or nail him for any reason. Fulkerson told Embry that Superintendent Doremus had again requested him to watch the whereabouts of Embry at all times and stated that he (Doremus) was going to nail that sucker. 3 Such a threatening warning from Fulkerson, only 3 weeks after Embry's conversations with the OSHA inspector, clearly infers that Respondent suspected Embry was responsible for the occurrence of the inspection, or that he gave in- formation to the inspector that contributed to the issu- ance of the citation against Respondent. In any event, the corroborated evidence amply supports a conclusion, and I so find, that Respondent was motivated to engage in acts of reprisal (surveilling Embry's movements at work), against Embry and other employees, by the oc- currence and/or the results of the OSHA inspection. Subsequently, the undisputed evidence shows that Embry filed a grievance for being ordered by Superin- tendent Duncan to use a defective and unsafe (poor steering) cat loader, which on several employees' re- quests to Respondent to repair, Respondent neglected to do so. After the OSHA inspection, Respondent instruct- ed all operators that they were required to have a respi- rator on the 966 operator at all times while in operation. On October 9, the weather was dry and there was an absence of ammonia fumes in the air. Consequently, Embry said he forgot to check out his respirator and he was suspended by Superintendent Duncan, who did not accept Embry's explanation of having forgotten the res- pirator because the air was clean. However, it may be reasonably inferred from Respondent's previously mani- fested threat to get Embry for the least little thing, or in- fraction of company rules, that Respondent suspended him because it knew or suspected he caused the inspec- tion by OSHA and because Embry engaged in other pro- tected, concerted activity by complaining (filing a griev- ance) to management about the allegedly unsafe cat. Al- though there is no dispute that Embry violated company policy by neglecting to check out the respirator, the fact that Respondent precipitoursly suspended him without any warning, and without following its own disciplinary procedure heretofore described under topic A, further demonstrates that Embry's suspension was motivated by his conversations with the OSHA inspector and his filing a grievance about allegedly unsafe equipment (protected union and concerted activity). Under such circumstances, Embry's suspension was discriminatory and in violation of Section 8(a)(3) and (1) of the Act. 'I credit Fulkerson's testimony in this regard because even though he testified he was so advised by Superintendent Doremus, it may be m- ferred that Doremus' source of instruction was for or in accord with the sentiment of management (Plant Manager John Grnnigen). At least Dore- mus' remarks are imputed to management because was Doremus unques- tionably a supervisor. In any event, I was persuaded by Fulkerson's de- meanor and the other evidence of record that he was testifying truthfully. Subsequently, Respondent contended Embry was deemed by it to have quit his job by failing to return to work within the 3 days following his suspension. Embry filed a grievance that was processed step by step in Janu- ary 1980. As a consequence thereof, Embry was advised by Union President Stateler that he could return to his job without backpay, but Embry refused to return with- out backpay. Nevertheless, he was subsequently reem- ployed by Respondent in March 1980 under new man- agement. Other evidence of Respondent's coercive and restrain- ing conduct against the protected union and/or concert- ed activities of its employees is shown by Superintendent Darrell Duncan's August order to chief steward Ronnie Ball that company policy forbade his writing a grievance during working hours and while on company property; by Foreman Mark Partridge's threatening advice to Ball in August, to refrain from writing a grievance on compa- ny property because he could be suspended for doing so, and Partridge's further advice to Ball to tell Norman Jones and Frank Embry, the latter of whom had previ- ously filed a grievance and talked with an OSHA inspec- tor, to watch their step because Superintendent Stan Doremus told him (Partridge) to record their where- abouts at all times on a pad; by Foreman Joseph Fulker- son telling Ball he was given the same instructions re- garding Frank Embry and was requested to record his whereabouts at all times, and that if Embry makes one mistake they (management) are going to can him; by Su- pervisor Leo Alvey asking Ball, in October, how were the employees planning to get out of MIRA, and adding "that the employees will not get out of MIRA, and they need not try to get out"; by Respondent changing its policy of unassigned cats and requiring operators to sign out cats for which they were responsible for any damage thereto; by Superintendent Doremus telling Foreman Partridge not to allow Ball to get away With anything, that the least little thing Ball did he would be out the gate; and by Respondent's early November change in the procedure for tapping the four furnaces from a rotating to a staggered procedure, which the employees protested but Superintendent Doremus refused to reverse, because as he told Foreman Partridge, it keeps the men on the floor at all times and reduces the frequency of their breaks.4 It is therefore clear from the foregoing credited evi- dence that Superintendents Duncan and Doremus re- strained employees in the exercise of their protected Sec- tion 7 rights, by prohibiting them from writing griev- ances at any time while on company property; by Re- spondent imposing more restricted rules regarding breaks and the mobility of employees during working hours, in an effort to lay a foundation for disciplining (suspending or discharging) them; by imposing more onerous work- ing conditions on the employees in changing the proce- 4 I credit Ball's testimonial account of his conversations with Superui- tendent Douncan and Foremen Partridge and Fulkerson, because not only was I persuaded by Ball's demeanor that he was testifying truthful- ly, but his account is essentially corroborated by Foremen Partridge and Fulkerson, as well as by the logical consistency of all the credited record evidence as a whole. 1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dure for tapping the furnaces; and by interrogating em- ployees about their plans to withdraw from MIRA and by telling them that their efforts in this regard were futile. Moreover, after Chief Stewart Ronnie Ball insisted on an appointment with Superintendent Stan Doremus to discuss the numerous complaints from employees about the changed procedure for tapping the furnaces, Dore- mus refused to hear the grievances and a heated argu- ment, including a shoving incident, resulted between Ball and Doremus. The dispute between them was not re- solved after a discussion with Plant Manager John Grun- igen. On November 8, Ball filed a grievance on behalf of Terry Gubler complaining about defective brakes on his cat, which Ball also signed and gave to Superintendent Doremus. Ball told Doremus there were other means by which he (Ball) could seek redress of the matter. Later that day, Doremus assigned Ball and Howerton to perform a salt-moving operation involving their oper- ation of 920 cats with a forklift, pursuant to the overt di- rections of Plant Manager John Grunigen. Neither em- ployee had ever been assigned to such an operation with a 920 cat, under the overt directions of management. Thus, such a performance was unusual and was not known to have been previously requested at anytime. Respondent offered a technical reason, involving its con- cern with the quantity of live dross on hand posing a danger and its desire to transport some of the dross to its Kentucky facility. However, I do not credit Respond- ent's explanation in view of the evidence of Respondent's conduct before and subsequent to this event, as will be more fully shown by the evidence and discussions, infra. Later on the same afternoon, after completing the salt- moving assignment, Ball was summoned to Superintend- ent Doremus' office and given a disciplinary writeup for allegedly using the 920 cat improperly during the salt- loading operation. When Ball repeatedly requested a union representative, Superintendent Duncan told him he did not need a representative on a writeup. Ball got angry and tore up the writeup and threw it in the trash. Duncan advised Ball that he was suspended immediately (November 8, 1979). Ball hmnediatley accompanied Vice President Daniels to the office of Plant Manger Gruni- gen, where Grunigen told Ball he was given the writeup because he "ran over materials and was shifting the cat too hard." When Ball explained that he could not have been going too fast becasue the cat was locked in one gear, and he had to run over the materials on the surface because he did not have a bucket with which to scoop the floor, Grunigen replied, "You tore up the writeup," which he characterized at the trial as company property. Daniels corroborated Ball's testimony that Superin- tendent Duncan told Ball he did not have to have a union representative on a disciplinary writeup, and he cited Respondent's Exhibit 2 (the MIRA agreement with the Union), which provides that if the employee desires a representative present during the discussion of any com- plaint, he shall notify his foreman, as Ball did, and the foreman (supervisor) should arrange to have the repre- sentative present. As the undisputed evidence shows, Ball, a known union activist, was called to the office for disciplinary purpose (disciplinary writeup), and as such, he was entitled to the presence of a union representative, as he repeatedly requested. NLRB v. J. Weingarten, 420 U.S. 251 (1975). Moreover, because the disciplinary writeup was one that Ball was asked and expected to sign, he was entitled to the presence of a union repre- sentative within the purview of the Board's holding in Certified Grocers of California, 227 NLRB 1211 (1977), cited by the General Counsel. Respondent also latently contended that it also sus- pended Ball because he tore up the writeup, which it characterized as company property. However, because Ball did not tear up the writeup until after his request for a union representative had been repeatedly and emphati- cally denied by Respondent, Respondent had already re- strained Ball in the exercise of his protected right to have such representation by repeatedly refusing his re- quest. Under these circumstances, I find Ball's tearing up the writeup but an extension of his insistence on a union representative, and his refusal to sign the writeup in the absence of one. Additionally, I fmd it difficult and im- practicable to separate Ball's tearing up the writeup from the circumstances which preceded it, because I do not credit Respondent's (Doremus and Duncan) contention that it suspended Ball for improper operation of his cat on November 8. Moreover, employee William Payne was known to have refused to sign a writeup and tore it up and threw it in the trash. He was not suspended by the Respondent for tearing up the writeup. In evaluating the testimony of Ball, Doremus, Duncan, and Grunigen, with respect to Ball's operation of the cat, it is logical to assume on the evidence herein that Ball was not happy about the salt-loading assignment, and he probably did not operate the cat with kid gloves. How- ever, when it is observed that this undisputedly unprece- dented assignment was made only a few minutes or hours after Ball cosigned a grievance on behalf of Terry Gubler, complaining about defective brakes on a cat, and after Ball told Superintendent Doremus there were other procedures by which he could remedy the substance of the grievance, it is obvious that the assignment was an act of reprisal against Ball, even though Howerton ac- companied him on the assignment. This conclusion is es- pecially supported by the evidence, wherein Howerton was directed to perform the less difficult proportion of the loading operation (pickup from the bottom of the pile, while Ball was directed to pickup from the middle of the pile). Additionally, Howerton testified without dispute how he saw Grunigen, Duncan, and Doremus laughing at them as they carried out Grunigen's overt loading direc- tions. The evidence does not show that at any time during the operation did Grunigen or any other member of management direct Ball to operate the cat at a slower rate of speed, or to refrain from driving it over materials. Hence, I credit Ball's explanation over Grunigen's con- tention that Ball improperly operated the cat and he (Grunigen) could not talk to Ball as a result of the noise from the operation of the cat. I find Grunigen's conten- tion M this regard unrealistic. In one breath he testified that he could not be heard by Bally because of the noise, and in the other breath he testified how he directed Ball BARMET OF INDIANA 1039 by pointing to the various lumps of salt. It would appear logical and realistic that just as Grunigen was able to direct Ball by pointing to the salt, he could have also given a hand signal to Ball to slow down the operation or to shut off the cat, so that he could direct him against improper operation. Grunigen made no such effort. Con- sequently, Grunigen's discriminatory motive for the as- signment, the disciplinary writeup, the denial of Ball's re- quest for a union representative, and the suspension of Ball, is thereby revealed. Vinyl Craft Fence Co., 241 NLRB 607 (1979), and Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1967). Because Respondent subsequently offered Ball rein- statement with conditions, such offer was not a genuine offer of reinstatement to Ball's former position and, therefore, Ball's refusal to accept it did not prejudice his right to full reinstatement with backpay. On January 27, 1980, Respondent reinstated Ball with backpay except for a 30-day suspension period. However, because the suspension was discriminatorily motivated and in viola- tion of Section 8(a)(3) of the Act, Ball is entitled to back- pay from the date of his suspension, November 8, 1979, until his reinstatement on January 27, 1980. In June or July 1979, Norman Jones, a 966 operator, was also questioned by the OSHA inspector in the pres- ence of Plant Manager Grimigen about the use of the gas masks on the cats. Jones was under the impression that the inspector was talking about little white masks that the workmen wore around their neck. At that juncture, Grunigen intervened and said to Jones, "No, you know what we are talking abut, the big black masks that fits over your whole face." Jones responded that he had never seen a mask like that, and Grunigen stated that the employees were suppose to have been instructed about those masks a year ago by Norman Miller. Jones said he had never heard about the masks. Jones had repeatedly complained about his cat not operating properly and his carrying it to the garage to be repaired, where it was not ever adequately repaired. He returned to Grunigen's office the same day to complain about the cat which had not been repaired by the garage. His conversation with Grunigen was in the presence of the OSHA inspector. On several occasions thereafter Jones had complained about the ill repair of his cat. While loading a truck on December 18, 1979, with a 966 cat, the bucket on the cat tore aloose and Jones had to use a 920 cat that he bor- rowed from plant 2. It took him considerably longer (an hour and a half) to load the truck with the 920. When he completed that loading, the awaiting truckdriver, Bal- lard, asked Jones if the 920 cat the only equipment with which to load. Jones answered in the affirmative and Ballard told him that he did not want to wait around to load it. Two other drivers, Jim and Andrews, did not want to wait to be loaded with the 920 and they left. When Jones reported to work the next day, December 19, 1979, his timecard was missing from the rack. He re- ported to the office where Doremus told him to get a union representative. Jones accompanied union steward Green to the office, where Doremus, in the presence of managerial staff, Duncan and Dillon, handed Jones an employee warning record and advised him that he was suspended. The suspension slip, issued to him on the same date, indicated that since December 1, 1979, sow molds had been shipped on trucks to Livia, Kentucky. The sows should not have been on the trucks and Re- spondent charged Jones with the loading because the trucks were loaded during his shift. Superintendent Doremus testified that on December 18 he investigated the sow mold incident and his testimony is inconsistent with respect to the sources from which he obtained his information, by first indicating he had re- ceived the information from a guard and superintendent whom he did not know, and at a later time, indicating that he received the information in a notation from a guard at the Livia, Kentucky facility. Without confront- ing Jones with any of the information, Doremus com- piled a report, submitted a recommendation to Grunigen to suspend Jones, and Jones was thereafter suspended. On further examination of a supervisor at the Livia, Ken- tucky facility, Charles Majors, it was found that Majors simply reported to Doremus that the trucks, on the night in question, had a few sow molds on them that were not supposed to be there. Respondent's Exhibit 17 was introduced into evidence as a business record but not for the truth. I fmd the con- tents of the document hearsay and do not rely on its con- tents for the truth. However, truckdriver Ballard testified that on December 19, Jones told him there is a loader, if you all want to load it, but he was going to the garage. Ballard specifically denied that Jones told him he (Jones) was not going to load the truck. In evaluating the credi- bility of Doremus and Jones, I was persuaded by Jones that he was testifying truthfully. I was also persuaded by the demeanor of Superintendent Doremus that he was not testifying truthfully, but was in fact trying to shore up his suspension of Jones by trying to build a case of "cause" against him on the same date that Jones was sus- pended. This conclusion is particularly true because Dor- emus did not even ask Jones about what happened on the night of December 18. Additionally, the report to Grunigen (R. Exh. 16) does not mention that any sow molds were on the trucks. Jones denied that he loaded sow molds on any of the trucks and I find the testimony of Supervisors Doremus, and Majors And truckdriver Ballard too inconsistent to be relied on, as outlined on pages 10 and 11 of the General Counsel's brief. Such in- consistencies in the testimonial versions of the foregoing managerial witnesses render their collective versions un- reliable and unconvincing. Moreover, Respondent did not comply with its own work rules in sUspending Jones. Based on the foregoing credited evidence, I conclude and find that Respondent did not suspend Jones for re- fusing to load the trucks on December 18, or for loading sow molds on several trucks at that time or prior thereto. I further conclude and find that Respondent's suspension of Jones was substantially, if not totally, motivated by Jones' answers to questions of the OSHA investigator that Respondent may have deemed adverse to its inter- est; because, between July and Deceniber, Jones had complained to management on several occasions about defective equipment; and because his conduct on the night of December 18 was also a protest of the inad- equate and unsafe equipment, when his 966 cat broke and 1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD he was frustrated by trying to complete the job with a 920 cat. When Jones was not able to load effectively with the 920, he went to the garage. Respondent was able to foresee another complaint from Jones and it de- cided to beat him to the punch, by exaggerating or fabri- cating a reason to justifiably suspend him. However, it is easily seen that Respondent's contended reasons for Jones' discharge were merely a pretext to conceal its real and unlawful suspension of him. As the General Counsel points out, neither one of the alleged violations of Jones was checked off on the warning slip (R. Exh. 13) under the topic "Nature of violation," calling for termination of an employee. Since the Respondent's discharge of Jones was based on his complaints about the safety of equip- ment and his cooperation with the OSHA investigation, his activity was protected by the Act. Kiechler Mfg. Co., 238 NLRB 398 (1975); Flynn Paving Co., 236 NLRB 721 (1978); Appollo Tire Co., 236 NLRB 1627 (1978); and Wray Electric Contracting Co., 210 NLRB 575 (1974). Carl Leo Alvey was employed by Respondent in May 1978 and served as a supervisor for the last year and a half. The evidence, which is essentially free of conflict, established that on November 9, 1979, while working with a cat with a charging bucket that had caught on fire on four occasions the day before, Alvey noticed that it was still leaking hydraulic fluid. He directed employee Terry Gubler to take the cat to the garage and have the hydraulic system repaired. About 5 or 10 minutes later, the cat was returned by an employee who said it was re- paired. Garage Superintendent Darrell Duncan appeared on the scene and asked Alvey why was he not using the cat. Alvey showed Duncan where the cat was leaking and explained to him how the leak had caused the cat to catch on fire four times on the previous day. Duncan nevertheless ordered Alvey to use the cat and Alvey told him he would not put the cat in operation in its state of ill repair. Duncan told Alvey, if he was not going to use the cat, he was fired. Alvey said, "Well, I guess I'm fired then because I ain't putting any men in that cab." Duncan then said to Alvey, "You would like to have a piece of me, wouldn't you?" and Alvey said, "Yes, If you would step outside the gate," or words to the effect. Duncan went to the office of Plant Manager Grunigen and, after the elapse of 10 minutes, Alvey was called into the office and asked if he had anything to say. Alvey ex- plained to Grunigen that he had refused to operate a cat with a charging bucket because it was unsafe and that Duncan fired him for refusing to do so. Grunigen said, "I guess you are fired," and gave Alvey his check. As hereinbefore found in the record, the Respondent had received several complaints about the safety of equipment and had taken acts of reprisal against employ- ees in different ways on several occasions in response to such complaints or grievances. Based on the foregoing evidence, which I credit, I conclude and find that Respondent discharged Leo Alvey on November 9, because he complained about and refused to comply with an order from management (Duncan) to assign men under his supervision to operate a defective and unsafe cat. Because the evidence shows that the cat caught on fire on several occasions and Re- spondent offered no evidence in rebuttal, I find that the cat was legitimately deemed unsafe by Alvey. In general, it is well established that the discharge of supervisory personnel for engaging in union activity does not constitute a violation of the Act. The Board has nev- ertheless held that wherever the discharge of a supervi- sor interferes with, restrains, or coerces rank-and-file em- ployees in the exercise of their protected Section 7 rights, such discharge is considered to be in violation of Section 8(a)(1) of the Act. Additionally, wherever an employer discriminates against his supervisors for what constitutes union or "protected-activity related consider- ations"; such discrimination violates the Act. More spe- cifically, wherever acts of an employer against the super- visor is based on "protected-activity related consider- ations," as it was here, the interference with, restraint on, or coercion against the exercise of employee rights is ac- tually not against the supervisor but against the employ- ees. Hence, as it is without question that Supervisor Alvey and the employees had a protected right to com- plain or grieve matters relating to equipment and work safety, which concern Alvey was asserting when he re- fused to order his men to use the unsafe cat, the dis- charge of Alvey constituted an interference with, a re- straint on, and coercion against the exercise of protected rights of the employees in violation of Section 8(aX1) of the Act. Oil City Brass Works v. NLRB, 357 F.2d 466 (5th Cir. 1966); and Better Monkey Grip, 115 NLRB 1170 (1956). Although the equipment may not have been estab- lished as a fact to have been unsafe, the law simply pro- tects the employees' right to complain and to grieve rea- sonable questions of safety. Consequently, Respondent's discharge of Jones, Embry, and also Alvey for refusing to use unsafe equipment, constituted a violation of Sec- tion 8(a)(1) and (3) of the Act. IV. ORDER DENYING RESPONDENT'S MOTION TO DISMISS THE COMPLAINT During the trial in the instant proceeding, Respondent moved to dismiss the complaint on the ground that the General Counsel failed to comply with a memorandum of understanding between the General Counsel and the solicitor of the U.S. Department of Labor, concerning the handling of cases that can be litigated under Section 8 of the National Labor Relations Act, and Section 11(c) of the Occupational Safety and Health Act. An official copy of the memorandum of understanding was not introduced or made a part of the record. How- ever, a review of the arguments set forth in the respec- tive briefs from the General Counsel and counsel for Re- spondent, I am unable to see how the memorandum could in anyway be given priority in jurisdiction over Section 102.9 and other Board Rules and Regulations governing an administrative hearing before me. In any event, I find the issue untimely raised by Respondent, and the memorandum inapplicable to the complaint, for the reasons more fully set forth on pages 21 and 22 of the General Counsel's brief submitted in this proceeding. It is hereby ordered, in view of the foregoing, that Re- spondent's motion is denied. BARMET OF INDIANA 1041 V. THE REMEDY Having found that Respondent has engaged in unfair labor practices warranting a remedial Order, I shall rec- ommend that it cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. It having been found that Respondent on several occa- sions and in various forms interfered with, restrained, and coerced its employees in the exercise of their Section 7 protected rights in violation of Section 8(a)(1) of the Act, by coercively interrogating them about their and other employees' union membership, activities, and ef- forts to withdraw from MIRA; by promulgating and en- forcing a rule against employees engaging in or conduct- ing union business (filing grievances) on Respondent's property at anytime; by promulgating and enforcing a policy by which Respondent denied employees their contract and legal right to be represented by the Union or other representative during an interview with manage- ment in which employees had reasonable cause to be- lieve disciplinary actions would result therefrom; by in fact conducting interviews pursuant to the policy in defi- ance of employees' request to be represented; by giving the employees the impression their concerted or union activities were under surveillance, or were in fact under surveillance; and that Respondent discriminated against employees by assigning employees to more onerous work because they complained or filed grievances about the safety of working equipment, or gave, or was suspected of giving, information about safe working conditions to an OSHA representative, or by suspending or discharg- ing employees for the same reasons, or for refusing to use equipment that was unsafe, in violation of Section 8(a)(3) and (1) of the Act, the recommended Order will provide that Respondent make all suspended or dis- charged employees whole, for any loss of earnings within the meaning and in accord with the Board's deci- sion in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 117 (1977), 5 except as specifically modified by the wording of such recom- mended Order. Because of the character of the unfair labor practices found, the recommended Order will provide that Re- spondent cease and desist from or in any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cu.r 1941). 5 See generally Isis Plumbing Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. Barnet of Indiana, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local No. 55, International Molders and Allied Workers Union, AFL-CIO-CLC is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees about their union membership activities, and efforts to withdraw from MIRA, Respondent violated Section 8(a)(1) of the Act. 4. By promulgating and enforcing /a rule against em- ployees engaging in or conducting union business (filing grievances) on Respondent's property at anytime; Re- spondent violated Section 8(a0(1) of the Act. 5. By promulgating and enforcing a policy by which Respondent denied employees their contractual and legal right to be represented by a union, or other representa- tives during an interview with management, in which employees had a reasonable cause to believe disciplinary actions would result therefrom, Respondent violated Sec- tion 8(a)(1) of the Act. 6. By in fact conducting interviews pursuant to the policy in defiance of employees' request to be represent- ed, Respondent violated Section 8(a)(1) of the Act. 7. By giving employees the impression that their con- certed or union activities were under surveillance, or by in fact spying on such activities, Respondent violated Section 8(aX1) of the Act. 8. By discriminating against employees by assigning employees Terry Gubler, Ronald Ball, and other em- ployees to more onerous work because they complained or filed grievances about the safety of work equipment, or gave, or were suspected of giving, information about safe work conditions to an OSHA representative, Re- spondent violated Section 8(a)(3) and (1) of the Act. 9. By discriminatorily suspending or discharging Norman Jones, Frank Embry, and Ronald (Ronnie) Ball for complaining or filing grievances about safe \ work equipment, or requesting a union representatives Re- spondent violated Section 8(a)(3) and (1) of the Act. \ 10.By discharging Foremen Carl Leo Alvey for iefus- ing to use or assign employees to operate unsafe equip- ment, Respondent violated Section 8(a)(3) and (1) of the Act. 11. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]