Harvey Aluminum, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1287 (N.L.R.B. 1964)

HARVEY ALUMINUM (INCORPORATED) , ETC. 1287"
Harvey Aluminum (Incorporated ) and Michigan Contractors,,
Incorporated and International Union, United Automobile,.
Aerospace and Agricultural Implement Workers of America,.
(UAW) AFL-CIO. Case No. 7-CA-4188. June 30, 1964
DECISION AND ORDER
On October 23, 1963, Trial Examiner Frederick U. Reel issued his
Decision in the above -entitled proceeding , finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac -
tices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision . Thereafter , the Respondents filed exceptions
to the Trial Examiner 's Decision and briefs in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three -member panel [Chairman McCulloch and Members
Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed .' The Board has considered the Trial
Examiner 's Decision and the entire record in this case , including the
exceptions and briefs , and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom
. 1 Respondent Harvey contends that it was prejudiced In that It was barred from using
evidence in the general files of the Board ' s Regional Office or in determining whether
such evidence existed by rulings of the Trial Examiner which: ( a) granted counsel for
the General Counsel's oral motion to revoke respondents ' subpoenas duce8 tecum and-
ad testificandam despite the fact that petitions to revoke should be in writing; and
(b) permitted counsel for the General Counsel to refuse to answer questions on cross-
examination after he had testified , at the request of the Trial Examiner, that all state-
ments signed or adopted by witnesses who testified for the General Counsel had been.
turned over to Respondents ' counsel.
We find no merit in these contentions . As to (a), while a petition to revoke subpenas
should be In writing , we conclude the Trial Examiner's granting of an oral motion to
revoke made during the hearing did not constitute prejudicial error. Respondent Harvey
is not entitled to access to the confidential files of the Board 's Regional Offices, as the-
production of Board files and the eliciting of testimony from representatives of the Board
or the General Counsel is prohibited by Section 102.118 of the Board's Rules and Regula-
tions, Series 8, as amended , absent the written consent of the Board or the General
'Counsel. The Respondent , upon proper request , is only entitled to affidavits or state-
ments signed or adopted by witnesses who had testified on behalf of the General Counsel.
Local 1566 , International Longshoremen 's Association (Philadelphia Marine Trade Asso-
ciation ), 122 NLRB 967 , at 968, footnote 1. As to (b), without passing upon the pro-
priety of the Trial Examiner 's action in calling to the stand the General Counsel 's repre-
sentative , whose testimony we need not rely upon herein, we find no prejudicial error in
the Trial Examiner's rulings permitting counsel for the General Counsel to refuse to
answer questions on cross -examination.
147 NLRB No. 146.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
:mended by the Trial Examiner and orders that Respondents Harvey
Aluminum (Incorporated) and Michigan Contractors, Incorporated,
.shall take the action set forth in the Trial Examiner's Recommended
-Order.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This case, heard before Trial Examiner Frederick U. Reel at Adrian , Michigan,
ion July 22-24 , 1963 ,1 pursuant to a charge filed April 12 , and a complaint issued
May 24 , presents two issues : whether the discharge of William Reid violated the
National Labor Relations Act, and, if so , whether Respondent Harvey Aluminum
(Incorporated ), hereinafter called "Harvey ," shares liability for this violation with
Respondent Michigan Contractors , Incorporated , hereinafter called "MCI." For
reasons detailed below , I answer both questions in the affirmative.
Upon the entire record in the case,2 including my observation of the witnesses,
and after due consideration of the briefs filed by General Counsel and by each
Respondent , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Respondent Harvey, a California corporation , owns, among other properties, the
plant at Adrian, Michigan , which is involved in this proceeding . Respondent MCI
is a Michigan corporation which operates that plant under contract with Harvey.
The plant, which is devoted to the manufacture , sale, and distribution of aluminum
products , receives annually over $250,000 worth of materials directly from outside
the State of Michigan , and annually ships over $ 100,000 worth of products directly
to points outside that State . On these facts there can be no question but that the
Board's jurisdiction extends to unfair labor practices committed at this plant, and
I find that MCI, which admits to being the employer of the employees there (except
for one auditor employed by Harvey ), is an employer engaged in commerce within
the meaning of the Act. General Counsel alleges, however , and Respondents deny,
that Harvey jointly operates the plant with MCI, and that they are "affiliated busi-
nesses constituting a single employer operating an integrated enterprise at the Adrain
plant." Resolution of the question whether Harvey is jointly liable with MCI for
"All dates herein refer to 1963 unless otherwise noted.
'The record includes certain subpenas directed to counsel for the General Counsel
which I revoked at the hearing.. As requested by counsel for Harvey , and pursuant to the
Board's Rules , the entire matter pertaining to the revocation of the subpenas is preserved
in the record . Counsel for Harvey sought through these subpenas to have counsel for
General Counsel produce statements allegedly in General Counsel ' s files which were ob-
tained from persons not called as witnesses , and also sought to have counsel for the
General Counsel testify with respect to such statements and other matters which counsel
for Harvey declined to particularize other than to aver that they were relevant to the
proceeding . I granted the motions to revoke the subpenas because no proper request had
been made of the General Counsel to permit his subordinate to testify , because a respond-
ent is not entitled to statements in General Counsel's files except the statements of wit-
nesses which may be used In cross-examination ( all such statements were made available
to Respondents during the hearing at their request), and because counsel for Harvey,
although purporting to rely on N.L.R.B . v. Capitol Fiah Company, 294 F. 2d 868
(C.A. 5), did not allege or offer to prove through the testimony of counsel for General
,Counsel ( although repeatedly invited to make such allegation or offer ) any fact com-
parable to those Involved in Capitol Fish Company , supra, where specific Improprieties in
the obtaining of testimony were alleged. After the close of the hearing , counsel for
Harvey unsuccessfully sought permission of the General Counsel to have the latter's sub-
ordinate testify , and after the denial of this request , counsel for Harvey filed with inc a
motion to reopen the hearing to compel such testimony , which motion I denied . Counsel
for Harvey has complained that my rulings revoking the subpenas are procedurally de-
fective because the motions to revoke were made orally rather than in writing as set
forth in Section 102.31 ( b) of the Board ' s Rules. In my view the requirement that a
motion to revoke must be written exists primarily to safeguard the interest of the party
moving to revoke . Counsel for Harvey has not yet suggested , either at the hearing or in
his brief or in his motion to reopen , what prejudice he suffered from the alleged pro-
cedural Irregularity or how he would have been advantaged had General Counsel 's motions
to revoke been written. See infra, footnote 3.
HARVEY ALUMINUM (INCORPORATED), ETC. 1289,
unfair labor practices committed against employees at this plant requires a state-
ment in some detail of the relationship between Harvey and MCI at this plant.
Harvey owns the land, buildings, fixtures, tools, and materials at the Adrian plant.
The plant is operated by MCI under a contract which, as Respondents view the
matter, establishes that Harvey is merely a "customer" of MCI. The finished prod-
ucts are then sold and delivered to customers of Harvey. The plant is generally
known as the Harvey Aluminum plant; it is so identified in the telephone directory
and by the telephone operators at the plant as well as by the signs on the premises.
Several members of the supervisory hierarchy at the plant were employed by Harvey
in its operations in Oregon or California; the general manager, John Alico, was.
hired by Harvey in the spring of 1961 and was paid through January 15, 1962, by a
concern named "Harvey Aluminum of Michigan." The next day, without change of
salary, he became an employee of MCI.
MCI was organized in December 1961, for the avowed purpose of establishing
a manufacturing plant to "generate products from aluminum .. and other mate-
rials," to deal in such materials, "and in general to carry on any other lawful business
whatsoever . ." Its entire working capital appears to be $2,000 representing.
2,000 shares of stock with a par value of $1 per share. All but 20 shares are held
by Aloysius O'Mara, a member of the Michigan bar, whose office in Blissfield,
Michigan, is also the office of MCI. Apparently the sole business of MCI is to
operate the Adrian plant for Harvey. The customers of the plant are Harvey's
customers; MCI does not bill them in its name or have any accounts receivable.
The contract between Harvey and MCI provides , inter alia, that personnel engaged
by MCI "shall be in the numbers, classifications, and at wage rates approved by"
Harvey. Under the contract Harvey may require MCI to remove any employee
Harvey "deems incompetent, careless, insubordinate, undependable, or otherwise not
devoting his undivided cooperative industrious efforts to the performance of his
duties." Under the contract, the foreman or superintendent and any necessary
assistants must be "satisfactory" to Harvey. MCI in the contract agreed "to employ
such labor which shall not conflict with other labor on the job or with labor em-
ployed by other contractors on the job." The contract requires that whenever MCI
"has knowledge that any actual or potential labor dispute is delaying or threatens
to delay the timely performance of the work," MCI "shall immediately give writteni
notice thereof, including the relevant information with respect thereto," to Harvey.
The contract, which may be canceled by Harvey at its sole discretion at any time,
also contains other provisions consistent with MCI's status as employer of the plant
personnel. The provisions summarized above, however, as well as the other facts
already adverted to lead me to find that, for purposes of the Act, Harvey is also an
employer of the employees at the Adrian plant. See N.L.R.B. v. New Madrid
Manufacturing Company and Harold Jones, etc., 215 F. 2d 908, 913 (C.A. 8),
where the court observes that an important "test of employership" under the Act is
whether the contract "either expressly or by implication" gives the nonoperating
employer "any voice whatsoever in the selecting or discharging of [the] employees,
in the fixing of wages for such employees, or in any other element of labor relations,
conditions and policies in the plant." See also General Engineering, Inc., et al.,
123 NLRB 586, and the subsequent cases involving that company, cited in Harvey
Aluminum (Incorporated), et al., 139 NLRB 151, 155-156, all holding that under
an arrangement in many respects similar to that in this case Harvey and General
Engineering, Inc., are joint employers of the employees in a plant at The Dalles,
Oregon, owned by Harvey and operated by General Engineering. The cases relied
on by Harvey in its brief in this case, notably Site Oil Company of Missouri, et al.,
v. N.L.R.B., 319 F. 2d 86 (C.A. 8); Knight Newspapers, Inc., 138 NLRB 1346;
and Clark Oil & Refining Corporation, 129 NLRB 750, did not involve situations
where the owner of the premises retained as much control over the employment of
the operator's employees as Harvey retains here?
I In Harvey's brief, devoted exclusively to the question whether it shares liability with
MCI for any unfair labor practices committed at the Adrian plant, Harvey claims that it
was prevented from introducing evidence by the refusal of counsel for the General Counsel
to testify and produce certain documents. See footnote 2, supra. In addition to the con-
siderations set forth in that footnote, I should add that Harvey called no witnesses of its
own other than counsel for the General Counsel, that counsel for Harvey did not examine
the witnesses called by MCI, and that counsel for Harvey never indicated, although re-
peatedly urged to do so, what matters he intended to develop by examining counsel for
the General Counsel or the latter's files. Although in Harvey's brief, as noted above,
counsel suggests that the material he sought related to Harvey's claim that it is not an
employer of the employees at the Adrian plant, counsel does not suggest what evidence
.1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges that the Charging Party, International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of America, (UAW) AFL-
CIO, herein called the Union, is "a labor organization within the meaning of Section
2(5) of the Act." The answers of both Harvey and MCI recite with respect to that
allegation that the pleader "does not have knowledge or information sufficient to
form a belief as to the truth or falsity" of the allegations that the Union is, and at
all material times has been, a labor organization "and, therefore, upon information
and belief denies such allegations." In their briefs Harvey and MCI assert that
no evidence was introduced to support the allegation that the Union is a labor
organization, and they argue that the complaint should be dismissed as it rests on
an allegation that Reid was discharged because of activity on behalf of a "labor
organization" and to discourage membership-in a "labor organization."
Respondents' pleadings denying that the Union is a labor organization could be
properly described as sham and could be stricken on my own motion. Also the fact
that the Union is a labor organization, i.e., an organization in which employees
participate which deals with employers regarding conditions of employment, is sub-
ject to official notice as it is established by numerous public records before the Board
and the courts, and by numerous published works dealing with organized labor in the
United States. In any event, upon the evidence in this record I find that the Union
is an organization in which employees participate (see, e.g., the testimony of Thomas
Hendricks, international representative of the Union) and that it deals with em-
ployers regarding wages or rates of pay (see, e.g., the testimony of William Reid that
he told Foreman Wilkerson the advent of the Union would stop what Reid regarded
as an injustice in withholding a wage increase from an employee).
III. THE UNFAIR LABOR PRACTICE
A. The evidence as to Reid's union activities; his discharge and the reasons therefor
In mid-August 1962 the Union commenced organizational activity at the Adrian
plant by distributing handbills to the employees. The following Monday, August 20,
a full page advertisement appeared in the local newspaper announcing a public meet-
ing to be held August 22 under the auspices of a "committee to keep industry in
Adrian" and referring to activities of "outsiders." The chairman of this meeting
introduced John Alico, general manager of the Adrian plant, with the comment,
"`This is your meeting, Mr. Alico, what do you want to say?" Alico discussed the
fact that outsiders were trying to.organize the plant, commented that the handbilling
was disturbing the employees, and "said something about he couldn't see why they
,couldn't have good labor relations in Adrian without outsiders interfering." A
union representative obtained the floor and objected to the characterization of the
union organizers as "outsiders." The meeting ended with the "matter" being referred
to the labor-management committee of the city of Adrian. No further handbilling
occurred until mid-April 1963 (after the discharge of Reid, which is the sole unfair
labor practice alleged), but organizational efforts continued within the plant with
Reid as the principal "contact man" for the Union within the plant.
Reid was hired August 20, 1962, as a rolling machine operator, a job similar to
that he had held at the plant under two prior owners, Bridgeport Brass and Bohn
Aluminum. The primary job of such an operator is to take aluminum which has
been rejected for not meeting specifications and put it through a roller in an effort
to eliminate the imperfections. Reid was the first rolling machine operator hired
at the plant after Harvey and MCI started operations there. His supervisor was
George Wilkerson, who had also been his supervisor in a previous period of em-
ployment when the' plant was owned by Bridgeport Brass. Reid, who had been a
union steward at Bridgeport Brass, was, as stated above, the "contact man" for the
Union in the Harvey-MCI plant. He distributed union cards to the employees and
arranged appointments for them to meet the Union's international representative at
their homes. In lunchtime discussions among the finishing department employees,
Reid was outspoken in his support of the Union. On Saturdays Foreman Wilkerson
would join the employees in his department at lunch, and would hear these discussions
in which Reid was a leading union advocate.4
along that line would not be In the possession of Harvey or MCI, and would be "sup-
pressed" In General Counsel's files. In any event my finding that Harvey Is jointly re-
sponsible with MCI rests on their contract and on other undisputed evidence in the case.
4 The above finding rests on the testimony of Reid, corroborated by that of other,
apparently disinterested, employee witnesses. On this matter, as In several others, I am
constrained not to credit Wilkerson's contrary testimony. The general question of Wilker-
son's credibility Is discussed infra.
HARVEY ALUMINUM (INCORPORATED), ETC. 1291
Reid was discharged Monday, April 8, 1963, under circumstances described infra.
On the preceding Wednesday he was notified that he was receiving an increase in
pay of 5 cents per hour, and that he would receive a similar increase the following
June 3. His informant on this occasion was Wilkerson, who at the same time
advised one Fairbanks, another rolling machine operator, that Fairbanks was not
getting a raise as he had not been there long enough . Upon hearing this, Reid,
according to his testimony, said to Wilkerson, "George, that ain't a bit fair . when
you get a union in here they will stop this." According to Fairbanks, Reid on this
occasion said that a nickel was not very much, and "It will be different when we
get a union in there." Wilkerson testified that he did not remember any such
statement.
On Monday afternoon, April 8, Wilkerson told Reid that the latter was being
discharged for producing excessive scrap. Reid, according to his testimony, imme-
diately denied the accusation, stating that Wilkerson knew he had not been running
scrap, and that Wilkerson would have mentioned the matter earlier had he been
at fault. According to Reid, as he and Wilkerson proceeded to the personnel office,
Wilkerson asked if the Union .would "take care of" Reid, and Reid said it would.
In the personnel office in the course of signing discharge papers, Reid, according to
his testimony, again stated to Wilkerson, in the presence of Personnel Director Rich-
mond, that Wilkerson knew Reid "definitely wasn't running scrap." That evening,
according to Reid, Wilkerson telephoned him and offered to be of help to him in
getting employment elsewhere while stating that he could be of no aid to him in
getting reemployed at the plant.
Employee Brownell, who was working near Reid on the day of Reid's discharge,
testified that upon hearing of the discharge he asked Wilkerson why he fired Reid.
Wilkerson replied that it was for "running excessive scrap," and when Brownell said,
"That ain't right," Wilkerson replied: "Well, that's what I have got on the report."
Employee McAnally testified that he also asked Wilkerson that day why Reid was
discharged, and when told "for running excessive scrap," replied, "Well, I never
heard anything about him running excessive scrap before." According to McAnally,
Wilkerson replied, "Well, that's what it says on the slip."
Wilkerson's testimony differed sharply from Reid's in several respects. Wilkerson
testified that he had warned Reid about producing scrap "on different occasions"
prior to March 26, and that he warned Reid again on both March 26 and April 3,
two occasions about which Wilkerson testified in great detail as evidencing poor work
by Reid. Wilkerson testified that Reid's work improved the next 2 days, Thursday
and Friday, April 4 and 5. On Saturday, April 6, according to Wilkerson, he
discussed Reid with Virgil Freude, the production superintendent, who told Wilkerson
in the course of their conversation that he had heard Reid was a union organizer.
Wilkerson testified that he decided to discharge Reid at that time, and that he
confirmed this decision by rechecking Reid's daily finishing reports that afternoon,
as they revealed (according to Wilkerson) that Reid "had been producing a lot of
scrap and should be terminated." Wilkerson also considered discharging Fairbanks,
another roller operator, at that time, but decided Fairbanks might improve. Both
Fairbanks and Reid had worked under Wilkerson's supervision under a prior owner
at the plant.
Wilkerson's account of the discharge the following Monday did not differ sharply
from Reid's except that Wilkerson denied making the statements Reid attributed to
him anent the Union's "taking care of" Reid. Wilkerson also testified that his
telephone conversation with Reid that evening was initiated by Reid, and that Reid
said, "No hard feelings. I was an organizer," to which Wilkerson replied, "I didn't
know that." Wilkerson further testified that in this conversation he told Reid "he
did a good job for me," and offered to help him get a job. Wilkerson did not
specifically recall having conversed with Brownell or with McAnally immediately
after Reid's discharge. With respect to the Saturday lunches, Wilkerson denied ever
hearing "any discussion concerning union."
On cross-examination of Wilkerson, General Counsel developed that on April 23
Wilkerson, in an affidavit to a Board agent which purported to set forth the reasons
for Reid's discharge, had made no mention whatsoever of the events of April 3,
although on direct examination he had testified at length and in detail concerning the
events of that day as leading to Reid's discharge. Also on cross-examination, Wilker-
son denied having asked O'Mara, who is president of MCI and its counsel, to obtain
a copy of the affidavit for Wilkerson, but O'Mara's letter of April 30 to the Board
expressly states that Wilkerson made such a request.
Some confusion developed as to whether Wilkerson had or had not examined the
finishing reports of the other rolling machine operators as well as Reid's before
concluding that Reid ran excessive scrap. On cross-examination, Wilkerson twice
stated categorically that he had not compared those reports. On redirect, after the
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
luncheon recess, he answered the same question by saying that he "must have"
done so. On recross, he adhered to his answer on redirect, and the examination
continued as follows:
Q. (By GENERAL COUNSEL.) . Now, which is correct? The answer you
gave me or the answer you gave Mr. O'Mara?
A. I am sure I must have, yes. The answer I gave him.
Q. In other words, the answer you gave me was not a correct answer?
A. At the time I thought it was correct, but I say that I must have. I am
sure I did.
Q. You are sure you did. And then when you answered my questions on
cross examination you just answered without knowing, is that correct?
A. I answered to the best of my ability.
Q. Now, when did your ability change? During the lunch hour?
A. No, sir.
Q. When did your ability change?
A. It didn't change.
Q. Then let me ask you again, did you actually take the finishing reports of
each employee, each roller operator, and compare them, tally them, compare
them, get totals, or didn't you?
A. Not everything you have said, no.
Q. Well, what did you-what steps did you take in comparing them?
A. The finishing reports were taken out and checked as to the scrap.
Q. By you personally?
A. Yes.
Later, in response to questions of the Trial Examiner, Wilkerson was even more
specific, stating that it was his own idea to go over the daily records of Reid and two
other employees with Freude on Saturday afternoon, April 6, although, according to
Wilkerson, "I had more or less made my mind up before, anyway."
Respondents called only one witness in addition to Wilkerson, General Manager
Alico, who did not participate in the decision to discharge Reid. Respondents did,
however, introduce into evidence the daily reports of Reid and of several other
employees for the purpose of showing the comparative amounts of scrap generated
by each. These reports are discussed in the following section under "Concluding
findings."
B. Concluding findings
Respondents maintained throughout the proceedings that they were unaware of
Reid's union activities, and that he was discharged for producing excessive scrap.
General Counsel maintained that Respondents had knowledge of Reid's union ac-
tivities and discharged him therefor. I am satisfied that the preponderance of the
evidence supports General Counsel on both issues.
With respect to Respondent's knowledge, even Foreman Wilkerson testified that
.prior to Reid's discharge, Production Superintendent Freude identified Reid as a
union organizer. Freude's knowledge, of course, is attributable to Respondents
under well-settled principles. In addition, I do not credit Wilkerson's testimony that
he was unaware of Reid's leadership of the Union in the plant. (He did not deny
knowing that Reid had been a union steward when Wilkerson supervised him at the
plant under prior ownership.) Several employees, all apparently disinterested wit-
nesses, testified that in their noontime discussions, which Wilkerson frequently at-
tended, Reid took the lead in espousing prounion views. Wilkerson's denial that he
heard any union talk at these gatherings is not to be believed. Indeed, except where
Wilkerson's testimony is corroborated by that of other witnesses, I generally dis-
credit him. His detailed account of Reid's allegedly poor work on April 3, allegedly
a major factor in the discharge, cannot be squared with his total failure to advert to
those events in his affidavit of April 23 which set forth the reasons for Reid's dis-
charge. His denial that he asked O'Mara to obtain a copy of that affidavit for him
is contradicted by O'Mara's letter of April 30 to the Board's office, and while the
latter document, unlike Wilkerson's testimony, is not sworn to, I am unwilling to
attribute deliberate falsification and willful deception of a Government agency to a
member of the bar. At best, therefore, Wilkerson's memory is either weak or highly
selective. His credibility is scarcely enhanced by the sharp self-contradiction, noted
above, as to whether he compared Reid's finishing reports with those of other em-
ployees before Reid's discharge. For these reasons and also based on my observa-
tion of the witnesses, I am constrained to reject Wilkerson's testimony that he did not
know of Reid's union activities at the time of the discharge. I also credit Reid's,
rather than Wilkerson's, account of the events of April 8.
HARVEY ALUMINUM (INCORPORATED), ETC. 1293
Wilkerson's testimony that he fired Reid for rolling scrap is, of course , as suspect
as the rest of his testimony . Other employees testified that Reid was a good operator,
and he was the senior roller operator in the plant . He had received a wage increase
within a week preceding his discharge . It should also be noted that , according to
Reid , he was never warned that he was producing too much scrap ; Wilkerson 's testi-
mony to the contrary- was ` none too specific and in any event is discredited for reasons
already indicated . Alico testified that one employee had committed at least four
infractions of plant safety rules before being discharged and that the employee had
been warned several times . The absence of similar warnings in Reid 's case suggests
discrimination . See also E . Anthony & Sons , Inc. V. N.L.R.B., 163 F. 2d 22, 26-27
(C.A.D.C.).
Respondents rely heavily on the daily finishing reports to show Reid 's short-
comings. When these reports are analyzed in the light of the testimony , however,
they appear inconclusive . Respondents , taking the reports for the 2 weeks preceding
Reid 's discharge , show that he ran 10 . 6 percent scrap , as contrasted with Peters, who
ran 6 . 8 percent , and Fairbanks , who ran 2 .7 percent . Moreover , for the 2 weeks
after Reid 's discharge , Fairbanks ran only 4 percent while operating Reid 's machine.
But these statistics are highly misleading . With respect to postdischarge scrap, the
testimony is quite clear that after Reid 's discharge the employees noted separately
material which was irretrievable scrap when they received it, whereas prior to Reid's
discharge the employees ' common practice was to include such material along with
material that was scrap after rolling. Wilkerson testified that there was some mate-
rial every day which was given the rolling machine operators but which the
operators would immediately discard as unusable . A comparison of predischarge
reports with postdischarge reports is therefore unreliable . Also the predischarge
reports cannot be used as a measure of performance . Thus, Fairbanks on the basis
of the reports appears to be a topnotch operator , and even his scrap percentage of
2.7 is misleading , for excluding March 30 from the 2 weeks would reduce his scrap
percentage to a mere 1 .3. Yet, according to Wilkerson , Fairbanks was, in reality,
so poor an operator that Wilkerson , according to his testimony , also considered dis-
charging Fairbanks for excessive scrap . Finally, according to the finishing reports,.
Reid ran the same percentage of scrap on April 4 and 5 , taken as a unit , that he
ran over the 2-week period , and indeed on April 5 his scrap percentage exceeded 17.
Yet Wilkerson repeatedly testified that Reid 's work had improved on April 4 and 5,
and Wilkerson , although in general an untrustworthy and unreliable witness, had no
occasion to testify favorably to Reid or adversely to Fairbanks in these respects, so
that his testimony tends only to cast grave doubt on the probative value of the finish-
ing reports.
I conclude , therefore , that Reid's work, and particularly the amount of scrap he
generated , was not the motivating cause of his discharge .5 General Counsel points
out that Reid was a leading proponent of the Union among the employees, that
Respondents were aware of this fact, that Respondents were hostile to the Union (as
evidenced by the meeting in August 1962 which was apparently called at the sug-
gestion of, or to accommodate , Alico, and at which he spoke in opposition to "out-
siders" organizing his plant ), and that Reid , within a week before his discharge, had
openly stated to a foreman , in the presence of a rank-and-file employee , that the
employees' lot would be improved when a union came in ., As an affirmative case
this is not overwhelming , nor can it be so characterized even if it be augmented by
the failure of Respondents ' explanation of the discharge to withstand scrutiny, by the
giving of a false reason for the discharge , by such contradictions and false state-
ments in the testimony of the 'supervisor allegedly responsible for the discharge
as to give rise to a suspicion that he is concealing the truth , and by the employer's
failure to call as a witness the other supervisor qualified to testify as to the cause
of the discharge . But the statute does not require overwhelming proof , and direct
evidence of a purpose to violate the Act is rarely obtainable . I am satisfied that the
evidence preponderates in favor of General Counsel 's position , and I therefore find
and conclude that Reid was discharged for union activities , in violation of Section
8(a)(1) and ( 3) of the Act.
Respondents did not call Production Manager Freude as a witness, although he
allegedly discussed the Reid discharge with Wilkerson, and allegedly went over the finish-
ing reports with Wilkerson, when the decision to discharge Reid was made. The failure
to call Freude gives rise to an inference that his testimony "would not have been favor-
able to respondents." N.L.R.B. v. Sam Wallick, at at., d/b/a Wallick and Schwalm
Company, et at. , 198 F. 2d 477, 483 (C.A. 3), citing 2 Wigmore, Evidence, sec. 285.
Cf. 0. F. Shearer & Sons v. Cincinnati Marine Service, Inc., 279 F. 2d 68, 73-74 (C.A. 6).
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I shall recommend that Respondents cease and desist
from the unfair labor practices found, and from any other invasions of their em-
ployees' rights under -the Act. The breadth of the order seems appropriate as dis-
crimination goes to the heart of the Act and hence suggests a predisposition to invade
the rights of employees in other respects. N.L.R.B. v. Entwistle Mfg. Co., 120 F.
2d 532, 536 (C.A. 4). Affirmatively, I shall recommend that Respondents offer to-
reinstate Reid and make him whole in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716. I shall also recommend the posting of an appropriate notice.
CONCLUSIONS OF LAW
1. For purposes of the Act, Respondents are joint employers of the employees
at the Adrian plant.
2. The Union is a labor organization within the meaning of the Act.
3. By discharging William Reid for union activities, Respondents engaged in an
unfair labor practice affecting commerce within the meaning of Section 8 (a) (1) and
(3) and Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Respondents , Harvey Aluminum ( Incorporated ) and Michigan Contractors, Incor-
porated , their officers , agents, successors , and assigns, shall:
1. Cease and desist from discriminating against employees because of their activity
on behalf of International Union , United Automobile , Aerospace and Agricultural
Implement Workers of America, (UAW) AFL-CIO, and from in any other manner
interfering with , restraining, or coercing their employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the.
Act:
(a) Offer William Reid immediate employment at his former or a substantially
equivalent position , and make him whole in the manner set forth in the section of'
the Trial Examiner 's Decision entitled "The Remedy."
(b) Preserve and, upon request , make available to the , Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the,
amount of backpay due under the terms hereof.
(c) Post at their plant at Adrian , Michigan , copies of the attached notice marked
"Appendix ." 6 Copies of such notice , to be furnished by the Regional Director for
the Seventh Region , shall, after being duly signed by an authorized representative of
each of the Respondents , be posted immediately upon receipt thereof , and be main-
tained by them for a period of 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are customarily posted . Reasonable.
steps shall be taken by the Respondents to insure that said notices are not altered,
defaced , or covered by any other material.
(d) Notify the Regional Director for the Seventh Region , in writing , within 20
days from the date of the receipt of this Decision , what steps the Respondents have
taken to comply herewith.?
Off this Order shall be adopted by the Board, the words "as Ordered by" shall be sub-
stituted for "as Recommended by a Trial Examiner of" In the notice. In the further
event that the Board's Order be enforced by a decree of a United States Court of Appeals,
the words "a Decree of the United States Court of Appeals, Enforcing an Order of" shall,
be inserted Immediately following "as Ordered by."
I In the event that this Order Is adopted by the Board, this provision shall be modified,
to read: "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps the 'Respondents have taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board
we are posting this notice to inform our employees of the rights guaranteed them in,
the National Labor Relations Act:
WE WILL NOT discharge or take any other action against any employee because
he is a member of or supports International Union, United Automobile, Aero--
DAUGHERTY COMPANY, IN C. 1295,
space and Agricultural Implement Workers of America, (UAW) AFL-CIO, or
any other labor union.
ALL OUR EMPLOYEES have the right to form, join, or assist any labor union,
or not to do so. WE WILL NOT interfere with our employees in the exercise of
these rights.
WE WILL offer immediate employment to William Reid and we will give him
whatever backpay he lost as a result of his discharge on April 8, 1963.
MICHIGAN CONTRACTORS,
INCORPORATED,
Employer.
HARVEY ALUMINUM
(INCORPORATED),
Employer.
By -----------------------------
(Representative) (Title)
By ----------------------------
(Representative) (Title)
Dated -------------------------- Dated --------------------------
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 500,
Book Building, 1249 Washington Boulevard , Detroit, Michigan , Telephone No.
963-9330, if they have any questions concerning this notice or compliance with its
provisions.
Daugherty Company, Inc. and Edwin L . Copeland
Local 562, United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United States.
and Canada , AFL-CIO [Daugherty Company, Inc.] and Edwin
L. Copeland
Shure-Richardson , Inc. and William W. Copeland
Local 562, United Association of Journeymen and Apprentices.
of the Plumbing and Pipefitting Industry of the United States
and Canada , AFL-CIO [Shure-Richardson , Inc.] and William
W. Copeland . Cases Nos. 14-CA-3191,14-CB-1132, 14-CA-3,018, .
and 14-CB-1152. June 30, 1964
DECISION AND ORDER
On April 1, 1964, Trial Examiner Frederick U. Reel issued his.
Decision in the above-entitled proceeding, finding that Respondents
Daugherty Company, Inc., Shure-Richardson, Inc., and Local 562,.
United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada, AFL-
CIO,1 had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found, regarding
' Hereinafter also referred to as Local 562.
147 NLRB No. 122.