Metal Assemblies, Inc.

National Labor Relations Board - Board Decisions

Dec 20, 1965

156 N.L.R.B. 194 (N.L.R.B. 1965)

194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if it so desires, upon such notice of its desire to the Regional Director
within 10 days after the issuance of this Decision and Direction of
Election.12
[The Board dismissed the petition in Case No. 21-RD-744.]
[Text of Direction of Election omitted from publication.]
' See Vita Food Products, Incorporated Max Block Co ., Inc. (Division of Vita Food
Products, Incorporated ), 103 NLRB 495, 497.
Metal Assemblies, Inc. and Wilburn Cooper. Case No. 7-CA-4794.
December 20,1965
DECISION AND ORDER
On September 21, 1965, Trial Examiner John P. von Rohr issued his
Decision in the above-entitled proceeding , finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He further found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint . Thereafter,
Respondent filed exceptions to the Trial Examiner 's Decision and a
supporting brief.
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 [Members Fanning, Brown, and Zagoria].
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 brief , and hereby adopts the findings , conclusions, and
recommendations of the Trial Examiner.1
[The Board adopted the Trial Examiner's Recommended Order
with the following modification : Add the following as paragraph
2(b), and reletter the following paragraphs consecutively:
["(b) Notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement
'The Trial Examiner properly found that the settlement agreement of March 3, 1964,
may not itself be used to establish union animus . Although his citation of Larrance
Tank Corporation, 94 NLRB 352 , is inapposite to this precise issue in the present proceed-
ing, we note our modification of that case in Northern. California District Council of
Hodearriers and Common Laborers of America, AFL-CIO, etc. (Joseph Mohamed, Sr., all
Individual, d/b/a Joseph's Landscaping Service), 154 NLRB 1384.
156 NLRB No. 18.
METAL ASSEMBLIES, INC. 195
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended, after dis-
charge from the Armed Forces."]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on July 21, 1964, the General Counsel for the National Labor
Relations Board, for the Regional Director for Region 7 (Detroit, Michigan), issued
a complaint on December 30, 1964, against Metal Assemblies, Inc., herein called the
Respondent or the Company, alleging that it had engaged in certain unfair labor
practices affecting commerce within the meaning of Section 8(a) (1) and (3) of the
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. The
Respondent's answer denies the allegations of unlawful conduct as alleged in the
complaint.
Pursuant to notice, a hearing was held in Detroit, Michigan, on March 10 and 11,
1965, before Trial Examiner John P. von Rohr. All parties were represented by
counsel and were afforded full opportunity to adduce evidence, to examine and
cross-examine witnesses, and to file briefs. I have carefully considered the General
Counsel's oral argument made at the conclusion of the hearing and the Respondent's
brief which was filed subsequent to the close of the hearing.
Upon the entire record in this case, and from my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Michigan corporation with its office and place of business
located in Centerline, Michigan, where it is engaged in the manufacture of welded
assemblies and automotive stamping. During the fiscal year ending September 30,
1964, the Respondent sold and distributed products valued in excess of $200,000 to
points and places located outside of the State of Michigan.
The Respondent concedes, and I find, that it is and has been engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 189, International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL-CIO, herein sometimes referred to as the
Union, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Wilbur Cooper was discharged by the Respondent on March 12, 1964. The issue
in this case is whether Cooper was discharged for allegedly threatening another
employee, as the Respondent asserts, or whether as the complaint alleges, such dis-
charge was motivated for reasons proscribed by the Act.
Cooper was hired by the Respondent as a press operator on July 30, 1963. Cooper
testified that at the time of his hire he was interviewed by the president of the
Respondent Company, Leon Simon. It is undisputed that during. this interview it
came to light that Cooper had formerly worked for the Midland Steel Products Co-,
a unionized company. It is also undisputed that Simon told Cooper that a number
of other employees from Midland Steel were presently working for the Respondent
Company. In addition, however, Cooper testified that during the course of this
interview Simon told him that he would not tolerate a union and that he did not
want anyone associated with the Union "in this Company." 1 Although denied by
'Having occurred more than 6 months prior to the filing of the charge, Simon's state-
ments are not alleged as a violation of Section 8(a) (1) of the Act. The incident is
admissable, however, as background evidence.
217-919-66-vol. 156-14
196 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
Simon , from my observation of these two witnesses, I credit Cooper's testimony as
aforesaid.2
Cooper worked on the second shift (4 p.m. to 12:30 a.m.) with approximately 34
employees. About. the middle of December 1963, Cooper began an organizational
campaign on behalf of the UAW, AFL-CIO, and thereafter obtained signatures from
some 27 employees on the night shift and several others from employees on the day
shift. There is, however, no direct evidence to establish company knowledge that
Cooper participated in these activities .3
I turn now to the incident which Respondent asserts as the basis for Cooper's dis-
charge. This involved an argument between Cooper and Roy Tidwell, the latter an
employee who worked on the same shift as Cooper. It occurred during a lunch break
about 8:30 p.m. on March 11, 1964. Starting with Cooper's version, Cooper testified
that the incident arose when Tidwell came over and began a conversation while he
was having lunch with some other employees.4 According to Cooper, the following
conversation thereupon ensued: Tidwell began by asking how the Union was doing.
Cooper replied that he "didn't know." Tidwell then stated, "I know that you're try-'
ing to organize a union in here and I don't want no part of it. You fellows can have
a union if you like. You can pay dues if you want. I'll get the benefits that you
get and I won't have to pay any dues." Cooper responded to this by saying that
"if we do get a union in the plant ... the men they wouldn't want to work with you."
Continuing, Cooper thereupon told Tidwell that if the Union got in, and he did not
join, "we'll protest to the company and we'll get a picket line around the plant."
Tidwell answered, "Well, I'll come through the picket line and go to work." Cooper
responded, "I'll be walking that picket line" to which Tidwell replied, "I'll run you
down and come in the plant and come to work." Cooper thereupon stated, "Roy,
if you do that, I'll have to protect myself, even if I have to smash your car to protect
myself." 5
As to Tidwell's version, Tidwell testified preliminarily (and credibly so) that about
2 weeks prior to the incident in question he had a brief conversation with Cooper in
which he told Cooper that he was not interested in a union and that he did not care to
talk about it.6 As to the March 11 incident, Tidwell testified that after eating lunch
alone he began walking toward the water fountain and was about to pass a group of
8 or 10 employees when'Cooper, who was among them, called out and said, "There's
a man that's against the union." Tidwell (whose version I now continue) responded
that he was not against the Union. Cooper then proceeded to say that when the
nonunion employees came in some evening, "there would be a picket line up there";
and that "if anybody tried to go through it they'd. get their car turned over and
something done to them." Tidwell asked "why he would want to do that." Quoting
Tidwell, Cooper's response was "he said something like, it would be taking bread off
his table, or something." Continuing, Tidwell testified, "Then, he [Cooper] asked me
how would I like to get my car tore up."
2 In view of the numerous credibility problems posed in the instant case, I find par-
ticularly applicable here the oft-quoted statement by Judge Learned Hand, "It is no
reason for refusing to accept everything a witness says, because you do not believe all
of it ; nothing is more common in all kinds of judicial decisions to believe some and not
all of It." N.L.R.B. v,. Universal Camera Corporation, 179 F. 2d 749 (C.A. 2).
9 Cooper testified that at one time his foreman, Arlie Campbell, stood about 50 feet
from him while he was in the act of handing union cards to an employee of, another
company who assisted directing the organizational campaign. However, Cooper conceded
that Campbell was not close enough to identify these as union cards. In fact, Cooper
conceded that "all be [Campbell] saw was me stop and hand Chester Bartosik some kind
of paper, or something."
* Cooper identified these as Gary 'Cady, Philip Gress, Larry Gress, and "another fellow."
5 Cooper testified that at one point Tidwell brought up the Kohler case, whereupon he
told Tidwell that "we didn't want no trouble like that." This testimony, which Tidwell
did not refute, is credited.
6 Tidwell testified that prior to March 11 he was not aware that Cooper was passing
out cards or that he was engaged in an organizing campaign, but that he knew Cooper
was "in favor of a union." While Cooper did not deny the conversation related above,
he testified that he never broached Tidwell about signing a card because Tidwell was one
of seven employees he was told "not to fool around with."
METAL ASSEMBLIES, INC. 197
While it is probable that neither version is entirely accurate ,? I credit , in essence,
the version of Tidwell over that of Cooper. This finding is primarily based upon my
observation of Tidwell, who impressed me as an honest witness. Moreover, I note
that although he was called as a Respondent witness his testimony was forthright
even when against Respondent 's cause.
Arlie Campbell, the foreman on the night shift, did not observe the argument
between Cooper and Tidwell. While it is undisputed that the matter came to his
attention and that he spoke to Tidwell about it the same evening, Campbell demon-
stratively proved himself to be an unreliable witness. Thus, in his prehearing affi-
davit,8 Campbell asserted that "Roy Tidwell, . . . came up and told me that he had
been threatened by Wilburn Cooper." At the hearing, however, Campbell con-
ceded that he walked up to where Tidwell was working on the press, this after "some-
body said something about an argument" and after he observed that "he [Tidwell]
started back to his press and he was walking along there with his head dropped
down." 9 In any event, Campbell testified that he then asked Tidwell, "What's the
matter, Roy" and that Tidwell responded, "Wilburn [Cooper] threatened me. You
know, doing harm to me and tying my little red car up." Additionally, Campbell
• testified that Tidwell told him that he was "scared," whereupon he told Tidwell that
"we can't have that going on."
Concerning this conversation, I credit the testimony of Tidwell who testified as
follows:
He [Campbell] came over there, and asked me, "Roy, did Mr. Cooper threaten
you or to damage your car, or anything like that?" And, I first told him I didn't
want to discuss the talk we had. And, he said, "Well, you might as well tell me.
I already know." He said there was five or. six that told him that he did do this.
And, he just put the question to me to either tell the story about it or tell the
truth, and I told him that Mr. Cooper said that. I asked him not to go to Mr.
Simon with it, but to forget it. He said that he'd have to report it and they'd
have to try to get rid of him if he was going to be that way and if he was that kind
of man. [Emphasis supplied.]
It is undisputed that Campbell telephoned Simon at home that night and told him
that there had been an argument between Cooper and Tidwell. Simon testified that
during this conversation Campbell reported that "threats against Mr. Tidwell's car
had been made by Mr. Cooper," and that thereupon he instructed Campbell "to do
nothing and say nothing," that he -would investigate the matter on the following day.
Simon testified that he investigated the matter the next day by interviewing Tidwell
and three of the employees who were present during the Tidwell-Cooper argument.
The three employee witnesses, he said, were called individually into his office first.10
According to Simon, these employees advised him as follows: Thomas Ambotis said
that he would rather not discuss the argument, but did state that Cooper had threat-
ened to damage Tidwell's "pretty little red car"; James Crump said that he did not
want to say anything about the argument, but did stated that he heard Cooper say
that he would "mess up" Tidwell's "pretty little red car"; the third employee, Thomas
Cady, while conceding to have been present during the argument, said that he did
not want to become involved and wouldn't say anything further.
Tidwell apparently was the last to be called into his office. Concerning his con-
versation with Tidwell at this time, Simon testified as follows:
I said, "Roy, I understand that there was an argument here last night and that a
threat had been made, and I want to hear your version of it. He said, "Yes there
was a threat made." I said, "Were you worried about it?" He said ... sub-
stantially . . . "You never can tell what a man like Cooper will do." He said
7 Neither the General Counsel or the Respondent called any of the employees who were
present during this incident as witnesses.
sCampbell's affidavit is dated August 28, 1964. (General Counsel's Exhibit No. 10).
O Apart from my unfavorable impression of Campbell as a witness, there are other
instances in the record reflecting upon his reliability as a witness. However, I deem
it unnecessary to detail these here since Campbell was not a participant in the decision
to discharge Cooper . His testimony to this issue herein therefore is not controlling or
determinative.
10 Other than to state that he asked Campbell to furnish him the names of the em-
ployee witnesses, Simon did not indicate that he spoke to Campbell further about the
matter on March 12. Campbell testified that the next time he spoke to Simon about
the matter was when Simon advised him that Cooper had been discharged.
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he was worried . . . "as any man naturally would be." I asked him what
led up to the argument, and he said he would rather not say; I said, "Well,
were you in fact threatened?" ' He said, "Yes." I said, "Did you say anything to
him?" And he said, "No, I didn't." I said, "Did you provoke him into saying
this?" And he said, "No, I didn't."' I said, "Did he threaten you or your car?"
And, he said, "He threatened my car." I said, "What did he say?" He said, "He
was going to mess up my pretty little red car."
While the significance of this testimony will appear later, it may be noted here that
immediately after relating the above conversation, Simon was queried as follows:
Q. Now, during the conversation you had with Tidwell, did Mr. Tidwell refuse
to tell you what the argument was about?
A. Yes, he did., He absolutely refused. [Emphasis supplied.]
Tidwell's testimony concerning his conversation with Simon on March 12 was
brief. Stating that he did not recall everything that was said, Tidwell merely testi-
fied that upon being called into the office; "he [Simon] asked me about this and asked
me was it so, did Mr. Cooper threaten to do damage to my car. And, I told him that
he did." 11 However, on cross-examination Tidwell recollected, when asked if he
informed Simon what the argument was about, "Well, I told him that it was concern-
ing the Union." [Emphasis supplied.] Not only do I credit Tidwell's testimony as
aforesaid, but Simon's testimony that Tidwell "absolutely refused" to tell him what the
argument was about is contradicted by his own sworn testimony before the Michigan
Employment Commission. Thus, the record reflects that in the latter proceeding
Simon testified as follows: 12
Q. Did he [Tidwell] tell you how this remark or this argument [between Tid-
well and Cooper] came about?"
A. He said there was a discussion going on about the union: that he was
accused of being a non-union man. [Emphasis supplied.]
Cooper was the last to be summoned to Simon's office. Since there is a conflict
in the testimony as to what followed, I set forth the two versions.
Cooper testified that Simon began by stating, "I understand that you had some
trouble in the back end last night." Copper said, "I don't think so." Simon stated:
"You had an argument and threatened Roy Tidwell ... you threatened to smash his
car." Cooper replied that "he did not" and that "he didn't think so." Cooper then
went on to state, "There was nobody threatened. We had a little argument last
night. It was regarding the union." Continuing, Cooper related to Simon that he
told Tidwell, "When we get a union in the plant [you'll] have to be a member of our
union; [you'll] have to pay union dues just like the rest of us." Cooper then related
of also telling Tidwell that a picket line would be put up around the plant "to get him
in." Tidwell's response, as Cooper told it to Simon, was that "he threatened to run
me down on that picket line to get into the plant to go to work ... and I told him
I'd smash his car if he tried to hurt me." 13 At this point, according to Cooper, Simon
stated he had brought him. [Cooper] "off of welfare" and that he was now "going
back on welfare." Cooper responded that "under the conditions he had to work,"
he would just as soon be on welfare. The conversation terminated, Cooper testified,
with Simon saying, "I'm not going to have anybody employed in my company that
threatens other employees with bodily harm or doing damage to their property .. .
I'm giving you an involuntary layoff. Do you deny all this?" Cooper testified that
n Tidwell testified that the conversation in Simon's office lasted about 15 minutes.
12 While the transcript of this proceeding was not introduced in evidence, counsel for
the General Counsel interrogated Simon by reading to him verbatim the questions and
his answers as set forth therein. No question was raised as to the authenticity of the
testimony as thus propounded . Indeed, upon having been read the testimony set forth
above, Simon responded . "You're saying I said it, so I must have said it."
is Cooper did not testify that he . told Simon of his above response to Tidwell until
cross-examination . However , having considered all the testimony pertaining to this
conversation , including Cooper's last and most detailed version thereof , I am convinced
and find that Cooper did tell Simon of his response to Tidwell when the latter said he
would run him down on the picket line. On cross -examination , Cooper testified for the
first time that during this conversation he also told Simon, "You know I'm trying to get
a union in here." Although of not controlling significance to this Decision , I am in-
clined not to credit this added testimony by Cooper.
METAL ASSEMBLIES, INC. 199
his final response was, "Yes, I do deny all this. I never threatened Mr. Tidwell's
car." It is undisputed that Cooper departed with the statement that he would take
the matter to the National Labor Relations Board.
Simon testified that his purpose in calling Cooper to the office was "to hear his ver-
sion; to find out if he had, in fact made a threat." Simon's testimony concerning the
discharge conversation was as follows:
I said, "Mr. Cooper, a serious charge has been made here, that you have made
threats against Mr. Tidwell. And, I would like to ask you if you did make
these threats7" And, he said, "Yes, I did and I'll do it again " And I said, "Well,
what's the nature of the argument)" Then, he started to talk about union activ-
ity, and I didn't want to hear anything about union activity ... 1 told Mr. Cooper
that I didn't want to hear about union activity. I asked him if he made this
threat. He started up again about union oiganizational activity. And, I said,
"Mr. Cooper, please, I don't want to hear about union organizational activity,
or anything about the union. All I want to know is did you make this threat,
and if you did will you not make a threat like that again?" And, he said, "No
I won't. I said it and I'll say it again." And, I said, "Mr. Cooper, you don't
understand, apparently. If you don't agree not to make these threats, I shall have
to let you go. I'm giving you an opportunity to say that you didn't say it. And,
I don't care if you lie to me about it and say that you didn't say it. Just tell me
you didn't say it and you can go back to work." He said, "I said it and I'll say it
again." And I said, "Mr. Cooper, please, you don't understand. Let's go over
this again . . Mr. Cooper, I don't want to terminate your employment. You're
a good worker. I want you to stay here. I have hired you and I want you to
keep working. Now, if you will tell me that you will not make threats to any
of the employees or to Mr. Tidwell in the future course of your employment, you
can stay here." And he says, "I said it and I'll say it again." And I said, "You
don't leave me any choice. I'll have to terminate your employment."
Additional Facts; Analysis and Conclusions
So that this discussion might best be followed, I will note at the outset that it is my
ultimate conclusion that Cooper was discharged for the reason that he was a prounion
employee and that the Cooper-Tidwell incident was used by Simon as a pretext or
an excuse for his discharge. As indicated below, this conclusion is in large part based
upon the very implausibility and unbelievability of Respondent's defense, this as
chiefly testified to by Simon
To begin with, the evidence clearly reveals that (1) either Simon did not conduct
a full and impartial investigation of the Cooper-Tidwell argument, and/or (2) he
did not disclose the full truth in his testimony concerning his interviews with the prin-
cipals to the argument and the employees who were witnesses thereto. As indicated
in the preceding section, it was Simon's testimony that employees Ambotis and
Krump, during their interviews with him, would admit only to the fact that Cooper
had "threatened" to damage Tidwell's "pretty little red car." According to Simon,
these employees absolutely refused to relate anything further as to what the argument
was about. 1 regard this testimony as incredible on its face. If these employees were
willing to relate that much about the argument, clearly it can be assumed that they
also would have disclosed in some greater detail the full nature of the argument. I
can but therefore conclude that either they did so, in which case Simon did not give
a full disclosure of his conversation with these employees, or that Simon heard as
much as he wanted but would not give these employees an opportunity to give the
full story.
For the reason's heretofore indicated, I have discredited a significant part of
Simon's testimony concerning his interview with Tidwell during his so-called investi-
gation of the incident. To reiterate, however, I am satisfied that during this inter-
view Tidwell did make known to Simon, contrary to Simon's testimony in the instant
hearing, that his argument with Cooper concerned itself about union or organiza-
tional matters.
But perhaps the most incredulous part of Simon's testimony is that pertaining to
his interview with Cooper when Cooper was discharged. As previously noted, Simon
testified on direct examination that he called Cooper to the office "to hear his ver-
sion of the story, to find out if he had, in fact, made a threat." The anomalous part of
Simon's testimony is, however, that even by his own testimony he did not in fact
accord Cooper an opportunity to explain "his version of the story." Thus, as
reflected in Simon's account of this conversation, it is Simon's testimony that when-
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever Cooper attempted to explain that the argument basically concerned union
activity, he refused to give him that opportunity and cut him off as soon as he men-
tioned the word "union." Indeed, when first called as an adverse witness by the Gen-
eral Counsel , Simon . testified , "I limited his [Cooper] response , to avoid any conversa-
tion brought in relative to union matters, which he was attempting to bring into the
conversation." 'The complete incompatibility of Simon's testimony as aforesaid is
too obvious to require further comment. Nor do I credit the remainder of Simon's
testimony, this to the effect that he determined to discharge only after Cooper refused
to comply with'his plea that he promise not to "threaten" employees in the future.
Cooper denied that this was so and I credit his testimony to this effect.14 As to what
actually occurred during the discharge conversation I cerdit the substance of Cooper's
testimony over that of Simon.15 In this regard, I am convinced and find that Cooper
related to Simon substantially the same version of his argument with Tidwell as he
testified to in the instant hearing.
In sum, I do not credit Simon's testimony as to his reasons for discharging Cooper.
While my rejection of Respondent's defense without more is not sufficient to prove a
violation, I find that the General Counsel has proved a discriminatory discharge by
affirmative evidence and reasonable inferences drawn therefrom. Thus, Simon's
animus toward union organization was clearly demonstrated when he advised Cooper,
at the time of Cooper's hire, that he would not tolerate a union and that he would
not have anyone working for his company who was associated with a union.16
While there is no direct proof to establish that prior to the Cooper-Tidwell incident
Respondent had knowledge of Cooper's then current organizational activities, the
evidence at the very least does establish that Respondent did learn of Cooper's pro-
union sympathies and inclinations at the time of his' discharge. In fact, I find that
the very basis for Cooper's discharge was Simon's discovery (from Tidwell and
Cooper) that Cooper was an active prounion adherent. Upon the entire record in
this case, and for the reasons already indicated, I conclude and find that Simon
utilized the Cooper-Tidwell incident to rid itself of any current or potential danger
14 Dianna Bodyk, Simon's secretary and bookkeeper , was asked by Simon to listen in
on this conversation from the outer office. She testified , in substance , that Simon told
Cooper that he would not take any "drastic measures " against him if he would "change
his attitude ." According to Bodyk, Cooper answered "that he said it and that he'd do
it again." I do not credit this testimony by Bodyk. She did not impress me as a
witness and I am persuaded that her testimony was slanted to favor her employer..
Moreover , Bodyk gave a different version of this testimony in her pretrial affidavit (Gen-
eral Counsel 's Exhibit No. 9).
15 Although I have not credited . all of Cooper 's testimony , he did impress me as a
more credible witness than Simon. I base this not only . from my observation of the
witnesses , but I regard much of Simon's testimony as incredible on its face. Moreover,
Simon's sworn testimony in this case was not in accord with his testimony before the
Michigan Employment Commission.
10 On March 3, 1964, the General Counsel and the Respondent entered into a settlement
agreement covering unfair labor practice charges filed in Cases Nos. 7-CA-4324 and
7-CA-4536 ( 2). Based upon the settlement stipulation , wherein the Respondent did not
admit the commission of unfair labor practices , the Board in that proceeding issued a
Decision and Order on March 31 , 1964, this being followed by a consent decree entered
by the United States Court of Appeals for the Sixth Circuit on April 8, 1954. The
General Counsel contends that I should take note of this proceeding and consider the
settlement agreement and decision as evidence to establish union animus on behalf of the
Respondent . He did not seek to adduce evidence antedating the said settlement agree-
ment. In accordance with established Board policy , I reject this contention of the Gen-
eral Counsel . Thus, in Dressmakers Joint Council , International Ladies' Garment Work-
ers Union, AFL-CIO (Susan Evans, Inc.), 146 NLRB 559, the Board reiterated its earlier
policy as established in Larrance Tank Corporation, 94 NLRB 352, and quoted from the
latter decision as follows:
It Is the Board 's established practice not to consider as evidence of unfair labor
practices conduct of a Respondent antedating a settlement agreement , unless the
Respondent has failed to comply with the settlement agreement or has engaged in
independent unfair labor practices since the settlement.
See also Poray, Inc., 143 NLRB 617; Metal Processors' Union Local No. 16, AFL-
CIO . (Porgy, Inc.) V. N.L.R.B., 337 F. 2d 114 (C.A.D.C.).
METAL ASSEMBLIES, INC. 201
of its plant being organized by this prounion employee. Accordingly , I find that
Respondent 's discharge of Cooper was in violation of Section 8 (a) (3) and ( 1) of the
Act.17
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices of the Respondent set forth in section III, above, occur-
ring in connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8 (a) (1) and (3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent discriminated against Wilburn Cooper by dis-
charging him, I shall recommend that the Respondent offer him full and immediate
reinstatement to his former or a substantially equivalent position, without prejudice
to his seniority and other rights and privileges, and make him whole for any loss of
earnings suffered by reasons of the discrimination against him. In making him whole
the Respondent shall pay to him a sum of money equal to that which he would have
earned as wages from the date of such discrimination to the date of reinstatement or
a proper offer of reinstatement, as the case may be, less his net earnings during such
period. The backpay is to be computed on a quarterly basis in the manner prescribed
by the Board in F W Woolworth Company, 90 NLRB 289, with interest thereon at
6 percent per annum as provided by the formula adopted in Isis Plumbing & Heating
Co, 138 NLRB 716.
The unfair labor practices committed by the Respondent strike at the very heart of
the rights guaranteed employees by Section 7 of the Act. N L.R.B. v. Entwistle Mfg.
Co., 120 F. 2d 532 (C A 4). The inference is warranted that Respondent maintains
an attitude of opposition to the purpose of the Act with respect to the piotection of
employee rights in general. I shall, accordingly, recommend that Respondent cease
and desist from infringing in any manner upon the rights guaranteed in Section 7
of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2(2) of the
Act and is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3 By discriminating in regard to the tenure of employment of Wilbur Cooper,
thereby discouraging membership in the Union, or in any labor organization,
Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices affecting commerce within the meaning
of 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in this case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I recommend that the Respondent, Metal Assemblies, Inc.,
Centerline, Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from-
(a) Discouraging membership of any of its employees in Local 189, International
Union, United Automobile, Aerospace and Agricultural Implement Workers of
America, AFL-CIO, or any other labor organization of its employees, by discharg-
ing or in any other manner discriminating against any individual in regard to hire,
tenure of employment, or any term or condition of employment, except as authorized
by Section 8(a) (3) of the Act.
17 The complaint further alleges that on or about March 8, 1964, Foreman Arlie Camp-
bell coercively interrogated employees in violation of Section 8(a) (1) of the Act There
being no evidence to support this allegation, I shall recommend that it be dismissed
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any other manner interfering with, restraining , or coercing its employees
in the exercise of their right to self-organization, to form labor organizations , to join
or assist the above -named Union or any other labor organization , to bargain collec-
tively through representatives of their own choosing , or to engage in other- concerted
activities for the purposes of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities , except to the extent that such right may
be affected by an agreement requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer to Wilburn Cooper immediate and full reinstatement to his former or a
substantially equivalent position , without prejudice to his seniority or other rights
and privileges , and make him whole for any loss of pay suffered by reason of the dis-
crimination against him in accordance with the method set forth above in the section
titled "The Remedy."
(b) Preserve and, upon request , make available to the Board and its agents, for
examination and copying, all payroll records , social security payment record, time-
cards, personnel records and reports, and all other records necessary or useful to
determine the amount of backpay due under the terms of this Recommended Order.
(c) Post at its plant in Centerline , Michigan , copies of attached notice marked
"Appendix ." 18 Copies of said notice, to be furnished by the Regional Director
for Region 7, shall , after being duly signed by the Respondent 's representative, be
posted by the Respondent immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereof , 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 cov-
ered by any other material.
(d) Notify the said Regional Director , in writing, within 20 days from the date
of the receipt of this Decision , what steps the Respondent has taken to comply
herewith.19
I further recommend that the complaint be dismissed as to any allegations not
herein found.
18 If this Recommended Order is adopted by the Board , the, words "a Decision and
Order" shall be substituted for the words " the Recommended Order of a Trial Examiner"
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" shall be substituted for the words "a Decision and Order."
16In the event that this Recommended Order be 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 Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Local 189,
International Union, United Automobile , Aerospace and Agricultural Implement
Workers of America, AFL-CIO, or in any other labor organization of our,
employees , by discriminatorily discharging or in any other manner discriminat-
ing against any individual in regard to his hire or tenure of employment or any
term or condition of employment , except as authorized in Section 8(a)(3) of
the Act.
WE WILL offer Wilburn Cooper immediate and full reinstatement to his former
or a substantially equivalent position , without prejudice to his seniority or other
rights and privileges , and we will make him whole for any loss of pay suffered
by reason of our discrimination against him.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their rights to self-organization , to form labor orga-
nization, to join or assist the above -named or any other labor organization, to
bargain collectively through representatives of their own choosing , or to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities , except to
LATIN WATCH CASE CO., INC. 203
the extent that such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as is authorized in
Section 8(a) (3) of the Act.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named or any other labor organization.
METAL ASSEMBLIES, INC.,
Employer.
Dated------------------- By--------------=----------------------------
(Representative) (Title)
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 226-3200.
Latin Watch Case Co., Inc. and Local 485, International Union of
Electrical , Radio and Machine Workers, AFL-CIO. Case No.
29-CA-113 (formerly 2-CA-10418). December 31, 1965
DECISION AND ORDER
On September 10, 1965, Trial Examiner Harry R. Hinkes issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent filed exceptions to the Decision with a
supporting brief. The General Counsel filed an answering brief.
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 [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision,
the exceptions and briefs,' and the entire record in this case, and hereby
adopts the Trial Examiner's findings, conclusions, and recommenda-
tions, as modified herein.2
'The General Counsel contends that the Respondent 's exceptions and brief do not
conform with Section 102.46 of the Board's Rules and Regulations , Series 8 , as amended,
and should therefore be disregarded . In view of our disposition of the case, we find
it unnecessary to pass on this contention.
3 We limit the findings of a violation to the conduct occurring within 6 months of the
service of the charge as proscribed In Section 10(b) of the Act, and earlier findings are
considered only for background.
156 NLRB No. 25.