Leslie Metal Arts Co., Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1971

193 N.L.R.B. 304 (N.L.R.B. 1971)

304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leslie Metal Arts Company , Inc. and International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW). Case
7-CA-8153
September 22, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On April 15, 1971, Trial Examiner Owsley Vose
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in certain
unfair labor practices alleged in the complaint, and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Decision and a
brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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, the exceptions and brief, and
the entire record in the case, 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 National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, Leslie Metal Arts Company, Inc., Grand
Rapids, Michigan, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as modified
herein.I
1 In In 9 of the Trial Examiner 's Decision, substitute "20" for "l0"
days
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
OWSLEY VosE, Trial Examiner: This case was heard at
Grand Rapids, Michigan, on January 20, 1971, pursuant to
charges filed on August 18 and September 15, 1970, and a
complaint issued on October 28, 1970, alleging among other
things that the Respondent had discharged Oswaldo
Gutierrez in violation of Section 8(a)(3) and (1) of the Act.
After the close of the hearing the Respondent filed a brief
with the Trial Examiner which has been carefully
considered.
Upon the entire record and my observation of the
witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Michigan corporation, is engaged at
five plants in Grand Rapids, Michigan, in the manufacture,
sale, and distribution of steel stampings and related
products. During the calendar year 1969, a representative
period, the Respondent had more than $50,000 worth of
materials shipped to its Grand Rapids plants from out-of-
state sources, and during this same period shipped to out-
of-state destinations in excess of $50,000 worth of
manufactured products. Upon these facts, I find, as the
Respondent admits , that it is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The Discharge of Oswaldo Gutierrez in
Violation of Section 8(a)(3) and (1) of the Act
1. Background
The UAW has conducted organizing campaigns among
the employees of the Respondent's various plants on
several occasions in the past, including its 32nd Street, S. E.,
plant, the only plant involved in this case. Elections were
held by the Board in 1966, 1967, and 1970. In February
1970 the Union mailed out to employees of the 32nd Street
plant a so-called "feeler letter" which was designed to
ascertain the extent of employee interest in further
organizing efforts. The response was not encouraging and
the UAW did not engage in further efforts at this time.
2. The hiring of Gutierrez; his employment
record
Gutierrez filled out an application for employment at the
32nd Street plant on March 9, 1970. Gutierrez' application
revealed that he previously had worked at two plants which
his interviewer, Donald Huizenga, the Respondent's
personnel director, testified were known to him to be UAW
plants. During the interview Huizenga asked Gutierrez how
he felt about unions. When Gutierrez replied that he could
193 NLRB No. 44
LESLIE METAL ARTS CO., INC.
save the union dues, Huizenga went on to say that "we
don't want no union here we don't have no problems."'
After being interviewed further by Charles St. Charles, the
toolroom foreman, concerning his prior experience,
Gutierrez was told to report for work on March 11 to
Foreman St. Charles. Gutierrez was hired as an A class
machinist at $3.61 per hour and was assigned to work under
Assistant Foreman Ed Bryant.
Early in June Gutierrez was assigned to do die repair
work, which required greater skill than the machinist A
work which he previously had been doing. On July 6
Gutierrez was formally transferred from machinist A work
to die repair and given a 10 cents per hour wage increase.
On August 4 Gutierrez was given a further 10 cents per
hour wage increase which became effective on August 10.
The Respondent does not dispute the fact that Gutierrez
was a "good worker" and expressly stated at the hearing
that the quality of Gutierrez' work was not a factor in his
discharge.
3. Gutierrez' role in the 1970 UAW organizing
drive
In April Gutierrez suggested to two of his fellow workers,
Al Bishoff and Ed Czarnecki, that having a union in the
plant would give the men greaterjob security and increased
employee benefits, and asked them whether they would
help him organize a union. Both employees agreed to help.
Thereafter, Gutierrez visited the UAW office in Grand
Rapids and requested assistance in organizing the employ-
ees of the Respondent's 32nd Street plant. Walter Schultze,
an international representative of the UAW, later contact-
ed Gutierrez, who arranged for a meeting with Schultze at
his home. Gutierrez, Bishoff, and Czarnecki attended.
Schultze gave the men information about organizing their
fellow workers. Gutierrez immediately commenced talking
with his fellow employees on the parking lot about
organizing a union
At a meeting at the UAW office in May, all of the
employees present-14 or 15 in number-signed UAW
bargaining authorization cards Additional cards were
given the employees present for distribution among their
fellow workers. Accompanying the authorization cards
were postage prepaid envelopes addressed to the UAW
office. Gutierrez himself passed out 50 or more cards to
employees and personally turned over to Schultze 5 or 6
cards. As Schultze testified, Gutierrez was more or less his
principal contact on behalf of the employees on both shifts.
A meeting of interested employees was held at the UAW
office on Saturday afternoon, August 8. Gutierrez was
unable to attend because he was scheduled to work
overtime that afternoon.2 At this meeting International
Representative Schultze had mimeographed forms for
circulation on which the employees signing authorized the
UAW to use their names in a letter to the Respondent
i The above finding is based on Gutierrez' credited testimony
Huizenga , when first asked whether he had any discussion with Gutierrez
about unions, answered as follows "Yes, I don't recall the exact words but
we often ask applicants whether or not they have a preference to work in a
union or non-union company " Later on in his testimony Huizenga denied
that he told Gutierrez that the Respondent did not want a union . Huizenga
then elaborated as follows - "I indicated to the man that this is a nonunion
305
advising it that they were members of the UAW organizing
committee in the plant. Because of the absence of
Gutierrez, Schultze gave Czarnecki a copy of the form with
a request that he give it to Gutierrez.
Czarnecki turned over the form to Gutierrez on the
parking lot before work on the following Monday morning.
Gutierrez promptly signed his name on the first line and
had Czarnecki sign immediately below. Then Gutierrez
asked two other employees to sign. On the following
morning, Tuesday, August 11, Gutierrez took the form into
the plant and solicited four or five girls to sign before the
workday commenced.
At lunchtime that day Gutierrez asked Joe Simon, Chico
Rivera, and Jesse Talamontez to sign the organizing
committee form. Simon asked Gutierrez to leave the form
with him, saying that he would return it during breaktime
that afternoon. Simon failed to do so; however, another
employee, Gosuth Talamontez, returned the form to
Gutierrez after work that day. None of these employees had
signed the form.
Later Gutierrez turned the form over to UAW Represent-
ative Schultze together with two other forms which others
had circulated. As found below, on the following Monday
Schultze sent the Respondent a list of the names of the
employees on the organizing committee. The names of 40
employees were listed.
4. Gutierrez' discharge on August 15; the incident
preceding it
On Tuesday morning, August 11, Assistant Foreman Ed
Bryant gave Gutierrez oral instructions to make four pins I
inch in diameter. Gutierrez completed the pins and left
them on Bryant's bench. Later that morning Bryant came
up to Gutierrez and had the following discussion with him,
as Gutierrez testified:
He say "what size pin I tell you to cut for me?" I say,
"four pins one by eight and a half." He said, "Dammit,
I told you four pins one by ten and a half." He says, "I
want four other pins and I want it right now." I said
"Okay, you told me one by eight and a half before." He
says "I told you one by ten and a half, and, dammit, go
and do it."
Gutierrez completed the pins promptly and left them on
Bryant's bench.
After lunch Bryant went over to Gutierrez' bench to give
him a new assignment. According to Gutierrez, he asked
Bryant at this time "why he was picking at me." While the
evidence is conflicting concerning the details of the
discussion which followed, the record is clear that what
started out as an angry interchange between the two men
ended up "amicably," 3 with Bryant apologizing to
Gutierrez for pushing him too hard and Gutierrez telling
Bryant that he was a "pretty good boss," much better than
some he had had.
company and that we are of the position that we offer job security, job
rates and benefits that are superior to many other plants."
2 This was the only Saturday afternoon in the entire 5-month period of
Gutierrez ' employment that he was required to work on a Saturday
afternoon Gutierrez performed only his regular duties on this occasion.
3 This is the Respondent 's charactenzation of the tone in which the
discussion ended, as stated on p 5 of the brief.
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The only direct testimony concerning the details of this
episode is that of Gutierrez. Bryant, the only other witness
to this incident, was not called as a witness, although he was
still in the Respondent's employ and actually working at
the plant on the day of the hearing. However, considering
all of the evidence in the case, I have concluded that I
cannot accept Gutierrez' undenied testimony about this
incident in toto without question. The facts set forth below
are based in part upon Gutierrez' testimony and in part
upon my conclusions based upon the evidence discussed
below concerning the events of August 14, the day before
Gutierrez' discharge.
I find that after again being reprimanded by Bryant
(Bryant had also spoken to him on the day before about
some work he had done), Gutierrez became fearful of losing
his job and angrily made some sort of a threat to Bryant if
he caused Gutierrez to lose his job. I cannot determine
upon the present record whether Gutierrez threatened at
the outset to cut Bryant's throat if Bryant caused him to
lose his job, as the hearsay evidence concerning this
incident indicates, or whether the reference to cutting
Bryant's throat came out later, after Bryant noticed a knife
in an open drawer of Gutierrez' toolbox and asked "you got
that [knife] to cut my throat," as Gutierrez testified.4 The
precise words used by Gutierrez are immaterial, for I am
convinced that at the outset Gutierrez did make a serious
threat of some sort against Bryant. This is indicated by
Gutierrez' own testimony that Bryant told him "dammit,
you don' t scare me . . . I have been threatened before and I
don't scare that easy." Gutierrez' subsequent admission
that he told Gary Timmermans, a fellow employee, shortly
after the incident that he had told Bryant that he was going
to "bury" him tends further to confirm my conclusion that
Gutierrez did threaten Bryant in some fashion during the
incident . I need not determine the exact nature of
Gutierrez' threat to Bryant for it is sufficient for the
purposes of this case for me to find, as I do below, that
regardless of the exact words used by Gutierrez to Bryant
on this occasion, it was later reported to the Respondent's
top officials along with other facts concerning this incident
that Gutierrez had threatened to cut Bryant's throat if he
caused Gutierrez to lose his job.
Continuing now with the facts concerning the incident
between Gutierrez and Bryant on August 11. After the
initial interchange between the two men-Gutierrez' threat
and Bryant's response, in effect, "Don't threaten me"-the
men calmed down and had a rational discussion of their
respective positions. Bryant, after indicating that he
4 The relevant parts of Gutierrez testimony about this incident are as
follows
Q. Tell us what happened then
A. I asked Bryant why he was picking at me
Q What did he say?
A. He get mad.
Q. What did he say'i
A He says "listen , dammit, you don't scare me" He says "I have
been threatened before and I don ' t scare that easy" I said "I don't
threaten you, I don't try to scare you, I just ask you why you are
picking on me why don't you leave me alone, get off my back"
Q. What happened after you said that?
A. My toolbox drawer was open
Q Your what9
A My toolbox drawer was open and there was a knife laying up
in there in the toolbox and Bryant see the knife and he say-
thought Gutierrez' approach was wrong, listened to
Gutierrez' statement that he was a willing worker, agreed,
and went on to explain that when he criticized Gutierrez'
work he was trying to help him rather than to pressure him.5
Bryant went on to say, as Gutierrez testified, that "I know I
have been pushing you too hard . . . but I have been under
a lot of pressure .... I have got four automatic machines
broke down," "they were not producing and it cost the
Company fifty dollars an hour or more," and "I am sorry."
At the end Gutierrez told Bryant that he "was a pretty good
boss," much better than others he had had .6 The discussion
ended on this amicable note.
Sometime after the incident Gutierrez told Joe Simon and
two other Spanish-speaking employees about the incident.
According to Gutierrez, he related to them the facts as set
forth in the footnote above containing Gutierrez' testimony
about the incident.
Assistant Foreman Bryant apparently did not mention
this incident to anyone either in management or among the
rank-and-file employees. Bryant's immediate supervisor,
Foreman St. Charles, remained unaware of the incident
until it was called to his attention on Friday, August 14,
under the circumstances found below.
On Friday afternoon, August 14, Plant Superintendent
Southway called Foreman St. Charles into his office and
informed him that he had heard that Gutierrez had
threatened an employee and asked him to investigate.
When St. Charles inquired as to the identity of the man
threatened, Southway said that he thought that Felix
Ambrose was the one. St. Charles left Southway's office
and spoke to Ambrose about the matter. Ambrose said he
knew nothing about any such incident.
St. Charles then asked Assistant Foreman Bryant
whether he had any information about such an incident.
Bryant said that he had been threatened by Gutierrez.
When St. Charles asked for the details, Bryant related as
follows, according to St. Charles' testimony:
... he said he had given Ozzie ajob making some air
pins I believe it was and he had made them short or
something, got the wrong dimensions , and he called it to
Ozzie's attention that he had done this, that they were
short.
One thing led to another and he said that Ozzie
pulled open the drawer of his toolbox and there was a
knife there and he said, there must have been some
words exchanged, and he said something to the effect
that he would cut his throat if he bothered him anymore
. . . . .
He said "what the hell is the knife doing there " he said "why you
keep the knife in there, to cut my throat9" I said, "it don't be a bad
idea" and I shut the drawer closed.
Q. Was the knife in your hand9
A. No he said "what the hell is the knife doing in there" and
I said "that knife has been there a long time" and he said "you got
that to cut my throat," and I said "it don't be a bad idea" and I
pushed it with the back of my hand because I had something in my
hand I pushed the drawer closed.
S This finding is based on notes made by Personnel Director Huizenga
concerning a statement made by Bryant during the Respondent's
investigation of the Gutierrez -Bryant incident it is discussed more fully
below.
s The above finding is also based on Personnel Director Huizenga's
notes concerning Bryant's statement made during the investigation
LESLIE METAL ARTS CO., INC. 307
or made anything of this incident or I believe got him
fired was his actual words.
St. Charles then returned to Southway's office and
reported his findings . Southway summoned Personnel
Director Huizenga to his office . After a discussion among
the three men it was decided to obtain Bryant 's version of
the incident firsthand. Bryant came in the office and made
a rather detailed report of the incident . Personnel Director
Huizenga made some longhand notes concerning Bryant's
report which he dictated the following Monday. According
to Huizenga 's notes, Bryant first related that he had
reprimanded Gutierrez on Tuesday morning for making
some pins too short. Huizenga 's dictated statement
concerning Bryant 's report continues as follows:
Later that afternoon he [Gutierrez] called me over to
his bench and said, "I'm gonna cut your throat if you
get me fired from this job." Then he showed me his
knife that he had in his tool box . He said, "I don't care
what happens to me! You can cut my throat or I will cut
yours." I [Bryant] said, Forget it, Ozzie, I get too much
out of life to do anything so stupid." Then he told me
that he had never been fired for lack of working
meaning that he did not have a lack of willingness to
work. I agreed with him on that but told him that his
work was very sloppy. Then I asked him why he felt that
way and he said he didn't know. I told him that I was
trying to help him rather than pressuring him. I
explained to him that the reason I talked to him the day
before was because I had had a complaint from the
Foremen in Press Room Number 2 on three items of
prog die repair that related to the quality of his work.
Then he told me I was a pretty good boss and said that
he had had some real pricks for bosses.
After Bryant made his statement he was dismissed and
Gutierrez was summoned to Southway's office. Gutierrez
was informed that the Company had information that he
had threatened to cut Bryant 's throat with a knife and was
asked what he had to say about it. Gutierrez admitted
having had an argument with Bryant on Tuesday, said he
had a knife in his toolbox which he had had for a long time,
but denied threatening Bryant with a knife.
Bryant was then called into the office where he was again
asked about the incident in the presence of Gutierrez.
Bryant related that Gutierrez had told him that if he got
him fired he would cut his throat. Gutierrez declared that
this was not true. Huizenga told Gutierrez , "Ozzie , we have
got to make a decision." Gutierrez asked whether he should
report on the following morning and was told that he
should.
At no time during the discussions between management
officials and Gutierrez prior to his discharge was any
mention made of the UAW or of any union activities of
Gutierrez. Nor had Gutierrez been spoken to previously by
anyone in management about his UAW activities.
After Gutierrez and Bryant left the office it was suggested
that Joe Simon knew something about the Gutierrez-Bryant
incident. (Simon was the employee whom Gutierrez had
asked to sign the organizing committee letter and who after
keeping the letter one afternoon had refused to sign .) Simon
was summoned to the office and questioned about the
incident. Simon refused to talk about it. Another employee,
Leonard Packard , was also questioned about the incident,
but he did not have any firsthand information about the
incident.
Huizenga and Southway decided to discuss the matter
with General Manager Flynn. They went to Flynn's office
and discussed the incident with Flynn. Neither Bryant nor
St. Charles was present during this discussion. It was
decided that Gutierrez should be discharged and Flynn
instructed Huizenga to ask St. Charles to inform Gutierrez
of his discharge the following morning.
Huizenga and Southway then looked up Bryant and
asked him why the incident with Gutierrez had not been
reported . According to Huizenga , Bryant was given an oral
reprimand for failing to report this incident.
A few minutes after Gutierrez reported for work the next
morning, Saturday, August 15, St. Charles went over to
Gutierrez' bench and told him, according to Gutierrez, "I
am sorry but they called me last night to tell you you were
through . . . . I am sorry this has to happen this way .. .
you are a good worker but they don't want a union here and
you are through." St. Charles denied saying anything to
Gutierrez about a union at the time he discharged him. St.
Charles further denied any knowledge of Gutierrez' union
sympathies at the time of his discharge . For the reasons
discussed below I credit Gutierrez' testimony concerning
the discharge conversation . A few minutes later , as he was
being escorted out of the plant by St. Charles and Bryant,
Gutierrez stated, in response to inquiries from several of his
fellow workers as to what had happened, "they framed me."
Early on Monday, August 17, the UAW mailed a letter to
the Respondent containing an alphabetical list naming the
40 employees who were members of the UAW organizing
committee at the plant. Gutierrez was one of the employees
listed . This letter was posted on the Respondent 's bulletin
board.
On August 18, the UAW handed out the following
mimeographed letter to the employees at the plant:
TO: ALL PRODUCTION AND MAINTENANCE
EMPLOYEES LESCOA-32ND STREET
PLANT
Dear Friends:
I have handbilled your plant several times but because
of layoffs in the plant we have held off on a full blown
drive. Most of the people on days and many of you on
nights know Oswaldo Gutierrez who is known as
`Ozzie'. Well, `Ozzie' was a fellow employee of yours
until a certain so-called leader tried to make it look like
`Ozzie' had made a threat on his life. Actually the only
thing Ozzie said to this so-called leader was `Get off of
my back'. When this got to the office there was more
added to it to make it look like Ozzie had threatened
him.
Of course, this whole `frame-up' could not have had
anything to do with the fact that Ozzie was getting
names on a sheet of paper for an In-Plant Organizing
Committee for the UAW. Ozzie did not think that he
had to hide the fact that he wanted a union to represent
him. After all, the laws of the land say that an employee
had a right to join a labor organization of his own
choice or to help organize such a union without
interference from the management , but apparently he
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was wrong about the management of Lescoa, for
Saturday morning he was told that he was all done. He
was told by his supervisor that he was a good worker
but that they did not want a union there. These are the
true and simple facts of this case as told to me by Ozzie
and I have proceeded to file an Unfair Labor Practice
Charge against Lescoa in his behalf.
I think this should be a very good example of why you,
the employees of Lescoa, need a union The same thing
could happen to any employee. The management holds
a "drum head" hearing and then they make the decision
of life or death regarding your job, and no matter how
right you are some stooge, whom the Company wants to
believe, can cause you to lose your job. Remember,
unless you have a union to represent you, yourjob can
go the same way that Ozzie's did. Oh, I am sure that
Ozzie will once again be an employee of Lescoa, but
only because he was working for what he thought was
right, for himself and everybody, and he has the UAW
to help him process his grievance with Lescoa through
the NLRB.
If you have not already done so, sign the enclosed card
and send it in today. Don't forget you could be next to
come into disfavor with your boss who might also
trump up charges against you. Sign the enclosed card
and show your support for your fellow worker who has
already been discriminated against. Check the enclosed
pamphlet so that you will know your rights. Don't let
any employee tell you different. Stick up for your lawful
rights and sign your UAW Authorization Card today.
On the following day the Respondent replied to the
UAW's letter as follows:
TO: ALL EMPLOYEES
Yesterday the UAW handed out a letter concerning
the recent firing of one of our employees. That letter
contains a number of false statements . It also makes
several vicious, untrue accusations about the company.
We do not want to dignify such disgraceful tactics by
arguing with the UAW. Our employees already know
that this company does not fire people without cause.
You can be sure that we had a very good reason for firing
Mr. Gutierrez and it had nothing to do with any so-
called union matters. You can also be sure that we will
welcome a chance tojustify our actions to the NLRB.
The facts of his dismissal are these: Prior to August
12, 1970, Oswaldo Gutierrez was very careless in his
work and the Foreman had some complaints about his
work. On Wednesday, August 12th, he made two costly
mistakes which the Foreman told him about and
requested that he work more carefully. Later Oswaldo
Gutierrez called the Foreman over to his bench and
said, "I am going to cut your throat if you get me fired
from this job." He then showed him a knife he had in
his tool box. This episode was brought to the attention
of management and, after a meeting of representatives
of management , the parties directly involved, and
others, Mr. Gutierrez was subsequently discharged.
Doesn't this present a different picture than that of an
employee Just telling a Foreman to "Get off my back."
We know our employees can see what the UAW is
really trying to do. They have no real issues to talk
about at Lescoa so they are trying to create some. What
does this kind of thing say about the sincerity of these
people? We are confident that our employees can see
through this shabby tactic. We are also confident that
none of you will be misled into signing one of those
"harmless" little cards.
REMEMBER THIS-Do not sign a card unless you
really want this union to take over your affairs. After
this episode, ask yourselves whether you really want to
have anything to do with this union at all.
Donald B. Huizenga
Personnel Director
At the hearing on January 20, 1971, St. Charles testified
as follows regarding Gutierrez:
.. . he worked for me and he worked hard. He was a
good worker. The only time I had any problems was he
made a few mistakes and everybody does. He worked
fast and he worked hard and he was a good man as far
as working goes. It was solely on the basis of this one
incident. I would never have fired the man. I had no
intention to. He gave me no trouble. He was a hard
working man all the time. I was very surprised about the
whole thing.
5. The Respondent 's contention ; conclusions
The Respondent contends that Gutierrez was discharged
solely because of his threat to Bryant on August 11. It urges
in addition that it had no knowledge of Gutierrez' support
of the Union until it received the UAW' s letter of August 17
naming Gutierrez as one of the members of the UAW
organizing committee. The Respondent relies on the
testimony of Foreman St. Charles and Personnel Director
Huizenga in support of this latter contention. However,
General Manager Flynn and Superintendent Southway
who were responsible for the decision to discharge
Gutierrez were not called as witnesses by the Respondent
and consequently there is no denial of knowledge on their
part.
The record shows that St. Charles and others in
management had an adequate opportunity to gain knowl-
edge of Gutierrez' union activities. At the time of his
discharge Gutierrez had been active in support of the UAW
for over 3 months. He had solicited employees to sign
authorization cards on company premises on a number of
occasions. The week ending August 15, was a week of
extensive activity on behalf of the Union. During this
period the organizing committee forms were circulated and
the signatures of 40 employees were obtained. Gutierrez
was active in obtaining these signatures both in the plant
and on the Respondent's parking lot. Among those solicited
by Gutierrez was Joe Simon, who was later questioned by
management concerning his knowledge of the incident
involving Gutierrez and Bryant.
Highly significant on the question of Respondent's
knowledge of Gutierrez' union activities is Gutierrez'
testimony that St. Charles told him at the time he
discharged him that "they don't want a union here." This
testimony, if credited, clearly indicates that the Respondent
did have knowledge that Gutierrez was active in some
respects in behalf of the UAW. The conflict in the
LESLIE METAL ARTS CO., INC. 309
testimony between Gutierrez and St. Charles on this point
presents a very difficult credibility problem.
While I have not found Gutierrez wholly reliable-his
testimony was not forthright in connection with the threat
to Bryant-it is clear that Gutierrez' testimony about St.
Charles' statement that the Respondent did not want a
union was not something concocted long after the event for
the purposes of the trial. This was something reported to
UAW Representative Schultze a day or two after the
discharge, as is apparent from the statement in Schultze's
letter to the employees dated August 18 that Gutierrez was
told by his supervisor at the time of his discharge that "he
was a good worker but that they did not want a union
there." This statement alerted the Respondent at the outset
to the nature of Gutierrez' case and the kind of testimony
which would be required to rebut it. St. Charles' own
testimony establishes that he was sympathetic towards
Gutierrez and disapproved of top management's decision
to discharge this hard and willing worker. Under all the
circumstances , and having in mind the demeanor of the
witnesses , I conclude that Gutierrez was telling the truth
when he testified that St. Charles gave him the explanation
at the time of his discharge that the Respondent did not
want a union . I find, therefore, that the Respondent did
have knowledge at the time it discharged Gutierrez that he
was taking part in the current UAW organizing drive.
I turn now to the question of whether Gutierrez was
discharged because he threatened Bryant with a knife, as
contended by the Respondent, or because of his activities in
support of the UAW, as contended by the General Counsel.
The salient facts may be briefly summarized as follows:
On Friday, August 14, Superintendent Southway heard a
rumor that Gutierrez had threatened someone. Although
the Respondent had received no complaint from the
employee allegedly threatened, Southway insisted that an
investigation be made. The investigation disclosed that
Assistant Foreman Bryant was the employee involved and
that what had started out as an angry interchange,
including a serious threat by Gutierrez to Bryant, was
smoothed over by Bryant and ended up with Bryant
apologizing to Gutierrez and Gutierrez telling Bryant that
he was "a pretty good boss." Notwithstanding the fact that
the incident ended on this amicable note and that Bryant,
the employee involved, apparently treated the incident as a
closed matter, when the incident was reported to General
Manager Flynn, it was decided that Gutierrez should be
discharged.
Foreman St. Charles' testimony makes it clear that he did
not regard this incident as justifying Gutierrez' discharge.
And in view of the Respondent's failure to call Assistant
Foreman Bryant as a witness , the Respondent cannot be
heard to argue that Bryant desired the discharge or
regarded it as necessary to maintain his authority. On the
contrary the record shows that Bryant had reestablished a
satisfactory working relationship with this admittedly
competent employee. In these circumstances it is difficult to
understand why the Respondent's top officials found it
necessary to pursue a matter which had been adjusted to
the satisfaction of the supervisors primarily concerned.
Upon all the facts of this case I cannot believe that the
action of the Respondent's top officials in magnifying as
they did the Gutierrez-Bryant incident was motivated by a
desire to maintain discipline in the plant. Rather, I
conclude that this explanation was a cloak to conceal the
Respondent's real reason for discharging Gutierrez. As the
Court of Appeals for the Ninth Circuit stated in a parallel
situation, where "the stated motive for a discharge is false"
the examiner "can infer that there is another motive. More
than that, he can infer that the motive is one that the
employer desires to conceal-an unlawful motive-at least
where . . . the surrounding facts tend to reinforce that
inference." Shattuck Denn Mining Co. v. N.L.R.B., 362 F.2d
466, 470.
The surrounding facts of the instant case tend to support
the inference of an illegal motive. The Respondent was
opposed to the organization of its plant by the UAW. While
the Respondent refrained from engaging in the more crude
forms of opposition to the UAW such as threatening
employees with discharge and the like, the record does
show that when Gutierrez was hired Personnel Director
Huizenga questioned him about how he felt about working
in a nonunion shop, indicated to him that the Respondent
did not want a union in the plant, and urged upon him the
superior benefits offered by the Respondent' s nonunion
plant. The Respondent's letter to the employees dated
August 19 answering the UAW's letter of the previous day
in which it complained of the UAW's "shabby tactics" and
warned against permitting the UAW "to take over your
affairs" reflects the Respondent's animosity to the UAW.
Gutierrez was the instigator of the current organizing drive
at the plant and, as found above, was known to the
Respondent to be involved in that drive. When the
Respondent's top management received word Gutierrez
had been involved in some kind of an incident with another
employee, it immediately started an investigation. Although
its investigation revealed that the incident had ended
amicably and was not regarded as significant by Bryant, the
supervisor involved, the Respondent's top officials, blowing
up the incident far beyond its true proportions, treated it as
justifying Gutierrez' discharge. This decision was reached
at the end of a week of intensified organizing activity in
which Gutierrez was participating on company premises.
All these circumstances, in my opinion, point to the
conclusion, and I find, that the Respondent's top officials
seized upon the opportunity presented by the Gutierrez-
Bryant incident to rid itself of a known union supporter.
Such a discharge necessarily discouraged union member-
ship and violated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. By discharging Oswaldo Gutierrez on August 15,
1970, the Respondent has discouraged membership in
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW) by
discrimination in regard to tenure, terms, and conditions of
employment and has interfered with, restrained, and
coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, thereby engaging in
unfair labor practices in violation of Section 8(a)(3) and (1)
of the Act.
2. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, my recommended Order will direct that the
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
I have found that the Respondent discharged Oswaldo
Gutierrez in violation of Section 8(a)(3) and (1) of the Act.
To remedy this unlawful conduct my recommended Order
will provide that the Respondent offer Gutierrez immediate
and full reinstatement to his former job, or if this job no
longer exists , to a substantially equivalent job, without
prejudice to his seniority and other rights and privileges.
My recommended Order will further direct that the
Respondent make Gutierrez whole for his losses resulting
from the Respondent' s discrimination against him by
payment to him of the sum of money he would have earned
from the date of his discharge until the date on which the
Respondent offers him reinstatement , less his net interim
earnings . Backpay shall be computed on a quarterly basis
and shall include interest at 6 percent per annum, as
provided in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER?
The Respondent, Leslie Metal Arts Company, Inc.,
Grand Rapids, Michigan, its officers, agents , successors,
and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), or any other labor
organization , by discharging or in any other manner
discriminating against employees in regard in their hire or
tenure of employment or any terms or conditions of
employment.
(b) In any manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Oswaldo Gutierrez immediate and full reinstate-
ment to his former job, or if this job no longer exists to a
substantially equivalent job, without prejudice to his
seniority or other rights and privileges, and make him whole
for any loss of pay suffered by reason of his discharge in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Notify Oswaldo Gutierrez, 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.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, as well as all other records
necessary to analyze and compute the amount of backpay
due under the terms of this recommended Order.
(d) Post at its 32nd Street, S.E., Grand Rapids, Michigan,
plant copies of the attached notice marked "Appendix." 8
Copies of said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by the
Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 7, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.9
I In the event no exceptions are filed to this recommended Order as
provided by Section 102 46 of the Rules and Regulations of the National
Labor Relations Board , the findings , conclusions and recommended order
herein shall, as provided in Section 10(c) of the Act and in Section 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and order , and all objections thereto shall be deemed
waived for all purposes
8 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
9 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, 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 Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law and we have been ordered to post this notice. We
intend to carry out the order of the Board and abide by the
following:
WE WILL NOT discharge or otherwise discriminate
against any employee because of his union activities.
WE WILL offer Oswaldo Gutierrez immediate reins-
tatement with backpay.
WE WILL NOT interfere with, restrain, or coerce
employees in the exercise of these rights.
Our employees are free to join or assist International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW) or any other union
and to engage in concerted activities for their mutual aid or
protection.
LESLIE METAL ARTS
COMPANY, INC.
(Employer)
Dated By
(Representative ) (Title)
LESLIE METAL ARTS CO., INC. 311
This is an official notice and must not be defaced by Any questions concerning this notice or compliance with
anyone. its provisions, may be directed to the Board's Office, 500
This notice must remain posted for 60 consecutive days Book Building, 1249 Washington Boulevard, Detroit,
from the date of posting and must not be altered, defaced, Michigan 48226, Telephone 313-226-3200.
or covered by any other material.