Metal Assemblies, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1967

168 N.L.R.B. 11 (N.L.R.B. 1967)

METAL ASSEMBLIES, INC. 11
Metal Assemblies , Inc. and Wilburn Cooper, An In-
dividual . Case 7-CA-4794
October 31, 1967
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On August 14, 1967, Trial Examiner Herzel H.
E. Plaine issued his Trial Examiner's Supplemental
Decision, attached hereto, finding that the dis-
criminatee, Wilburn Cooper,' entitled to a payment
of $2,527.29. Thereafter, Respondent filed excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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 the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
SUPPLEMENTAL ORDER
On the basis of the Trial Examiner's Supplemen-
tal Decision and the entire record in the case, the
National Labor Relations Board hereby orders that
Respondent, Metal Assemblies, Inc., Detroit,
Michigan, its officers, agents, successors, and as-
signs, shall make Wilburn Cooper whole by pay-
ment to him of the amount set forth in the Trial Ex-
aminer's Supplemental Decision.
' See Metal Assemblies, Inc, 156 N LRB 194
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
HERZEL H.E. PLAINE, Trial Examiner: This is a
backpay proceeding, supplemental to the Board's Deci-
sion and Order in 156 NLRB 194 (December 20, 1965),
enforced on consent decree of the United States Court of
Appeals for the Sixth Circuit (No. 17,570, January 23,
1967).
The Board found that the Respondent had discrimina-
torily discharged its former employee, Wilburn Cooper,
on March 12, 1964, in violation of Section 8(a)(3) and (1)
of the National Labor Relations Act, as amended, and or-
dered that Respondent offer the discriminatee reinstate-
ment and make him whole for any loss of pay. On March
19, 1965, the Respondent offered reinstatement which
was declined by the discriminatee. Following entry of the
court enforcement decree in January 1967, a dispute
arose as to the amount of backpay due the discriminatee
for the backpay period March 12, 1964, to March 19,
1965.
Pursuant to a backpay specification and notice of hear-
ing, I held a hearing in Detroit, Michigan, on May 4,
1967, which was supplemented by the deposition of one
witness on May 10, 1967. Only counsel for the Respond-
ent has filed a brief.
Upon the entire record of the case and from my obser-
vation of the witnesses I make the following:
FINDINGS AND CONCLUSIONS
1. THE AMOUNT OF BACKPAY
The General Counsel established without contest the
amount of the gross backpay due discriminatee Cooper
for the backpay period, March 12, 1964 (the day of
discharge), to March 19, 1965 (the day offer of reinstate-
ment was declined), on the quarterly basis prescribed by
the Board in F. W. Woolworth Company, 90 NLRB 289
(1950), approved in N.L.R.B. v. Seven-Up Bottling Com-
pany, 344 U.S. 344 (1953). In this connection, the
General Counsel used as his measure of time the weekly
average of regular hours worked in the backpay period by
10 comparable representative workers plus 50-1/2 per-
cent of their weekly average overtime hours, based on a
comparison of the regular hours and overtime hours
worked by all 11 employees in the approximate 6-month
period prior to Cooper's discharge. See, Backpay Specifi-
cation, and General Counsel's Exhibits 3, 4, and 5. The
rate of pay used was the hourly rate of $2.05, paid to
Cooper prior to his discharge, with overtime computed as
was usual at 1-1/2 times the hourly rate.'
The General Counsel also gave credit for interim
earnings in the 5 quarter years of backpay period. These
earnings exceeded and eliminated what would have been
backpay in the fourth quarter of 1964 and the first quarter
of 1965. For the second quarter of 1964 the earnings
totaled $88 (credited by amendment of the Backpay
Specification at the hearing).2 There were no credits in
the first and third quarters of 1964.
' While Respondent suggested at the opening of the heanng that he had
a reservation respecting comparability of hours worked by discriminatee
Cooper with the hours worked by the 10 representative employees, he of-
fered no evidence on the point, did not question the exhibits, supra, and
abandoned the reservation in his brief
The $88 was derived by discriminatee Cooper from two casual house
painting jobs he did respectively for Eugene Kanar, one of Respondent's
foremen , sum $58, and forJohn Margaretta , Kanar's former landlord, sum
$30 Respondent produced Foreman Kanar in an attempt to show that
Cooper's casual employment earnings were more than $88, but Foreman
Kanar so thoroughly discredited himself as to convince me that he
fabricated testimony to curry favor with his Employer, the Respondent, or
for other unsavory reason Thus with respect to the larger sums allegedly
paid discriminatee Cooper, though Foreman Kanar claimed he paid in
cash he produced no receipts or any agreement for the work He testified
from a typewritten document concerning the work for himself and alleged
work for others by Cooper, a document which he said he had prepared for
the hearing (held May 4, 1967). When reminded that he had come to the
heanng under subpena without previously discussing his testimony with
counsel for the Respondent , he changed his story to say he had the state-
ment prepared in December 1964, several months after Cooper had
completed the work for him; and under further questioning , said it was
prepared in October 1964 as a memorandum in the event Cooper should
ask him for more money than had been paid him. At that juncture in his
testimony Foreman Kanar was unable to explain why his typed memoran-
dum also contained references to Jobs that Cooper allegedly told Kanar he
had done for people other than Kanar
I have accepted discnminatee Cooper's denials of making any such
statements and of the alleged other earnings, and I note that in its brief
Respondent has abandoned the claim of additional credits based on this
testimony by Foreman Kanar.
168 NLRB No. 3
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Therefore, for the three quarter years of 1964 in which
backpay would be owed, the figures are as follows:
Gross Interim Net
bac ay Earnings bac a
1964- 1st quarter $ 217.81 none $ 217.81
- 2nd quarter 1,133.14 $88 1,045.14
- 3rd quarter 1,264.34 none 1,264.34
total net $2,527.29
The sum of $2,527.29, with interest at 6 percent per
annum appropriately calculated,3 is due discriminatee
Cooper from the Respondent, unless there is merit to
Respondent's defense.
11. THE DEFENSE
The Respondent, in its brief, raises the issue of willful
loss of earnings, questioning that discriminatee Cooper
made reasonable efforts to secure employment during the
backpay period and contending that Cooper refused an
opportunity of a job offer allegedly tendered while he was
unemployed by a rival union (Teamsters) representative."
At the hearing, the General Counsel produced dis-
criminatee Cooper who testified in detail concerning his
efforts to secure employment following his discharge on
March 12, 1964.5 Cooper listed by name and location the
industrial plants and certain other businesses in the
Detroit area, many of which he said he walked to for lack
of bus fare, where he inquired, or filled out applications,
for employment. Among these were Tamm Corporation,
Martin's Electric Company, Fitzsimmons Manufacturing
Company, Star Equipment Company, Gimmer Manufac-
turing Company (where both a brother and brother-in-law
of his worked, but he was turned down allegedly because
he was over 40- he was age 47 at the time of the hear-
ing), Stone Container Corporation (application again
turned down because a younger man was wanted), Mas-
sey-Ferguson, Chrysler Kercheval plant, Chevrolet Gear
and Axle plant (at Hamtramck), and American Metal
Company. In a number of instances where Cooper filed
applications he followed up with later telephone calls but
had no success at these places. He tried, through a
brother who worked at Winkworth Landscaping Com-
' Interest at 6 percent accrues commencing with the last day of each of
the three calendar quarters , respectively, on the amount due and owing for
the respective quarterly period, and continuing until the date of payment
of the total backpay Isis Plumbing & Heating Co , 138 NLRB 716,
720-721 (1962), approved in Philip Carey Manufacturing Co v
N.L R B ,331 F 2d 720 (C A 6, 1964), cert denied 379 U S 888
° Discnmmatee Cooper had been engaged in organizing activity among
Respondent ' s employees for the UAW Local 189 at the time of his
discharge , 156 NLRB at 195-196
While there is disagreement among the United States Courts of Ap-
peals as to whether providing such evidence is a practice required of the
General Counsel, pro, N L R B v Mastro Plastics Corp, 354 F 2d 170
(C A 2, 1965), contra , Florence Printing Co v N L R B , 376 F 2d 216
(C.A 4, 1967), contra , N L R B v Mooney Aircraft, Inc, 366 F 2d 809
(C A. 5, 1966), there is no disagreement that "the defense of wilful loss of
earnings is an affirmative defense and the burden of proving it rests on the
employer " Florence Printing Co v N L R B , supra at 223, also Mastro
and Mooney, supra, and N L R B v Ellis and Watts Products, Inc , 344
pany, for a job there, but the company wanted an ex-
perienced landscaper.
Discriminatee Cooper registered with the Michigan
Employment Security Commission for employment and
for unemployment compensation," and reported regularly
each Monday as able and available for work, but ap-
parently received no referrals to work from the employ-
ment service.7
On October 5, 1964, discriminatee Cooper obtained a
job at Michigan Metal Processing Company where he
continued to work, and was working at the time of the
hearing, at higher pay than he had previously earned with
the Respondent.8 Cooper testified that he obtained the
job with the help of Frank Gosinski, President of UAW
Local 189, for whom Cooper had done organizing at
Respondent's plant before he was discharged.
Before getting this help, however, Cooper and Union
President Gosinski had come "almost to fighting terms"
because, as Cooper said, he felt that Gosinski had let him
down and was not helping as much as a union president
should. After Cooper was fired by the Respondent,
Cooper went to Union President Gosinski about getting
his job back with Respondent. Gosinski told Cooper to
file an unfair labor practice charge with the Board, but did
not assist him, or file for him, as Gosinski conceded he
would have done had he gone along; and over the summer
told Cooper that he would have to get the UAW into
Respondent's plant and then he would get Cooper's job
back. He told Cooper he would help him find a job and if
any prospects turned up would call him.
Cooper did not get any calls from anyone in Local 189
for a long time, and then not until he took action that was
disturbing to President Gosinski and his associates.
Cooper was doing some house painting in mid-June for
Eugene Kanar (see fn. 2, supra), who was then an inspec-
tor in Respondent's plant (and later became a foreman),
when Kanar introduced him to two representatives of the
Teamsters Union, the Petroffs, father and son, who came
to Kanar's house. They were interested in organizing the
Respondent's plant and, as Teamsters Organizer Edward
Petroff, Jr., testified (as witness for the Respondent),
wanted Cooper to come over to their side and help them
organize the men. They wanted his help in getting em-
ployees to sign for the Teamsters and wanted names of
people with whom they could talk. According to Petroff,
on direct examination, they particularly wanted Cooper
to go to the plant and tell the employees that he had
worked for the UAW and that the UAW had done
nothing for him, and now he was a Teamsters' member
F 2d 67, 69 (C A 6, 1965) The burden of the defense does not shift
because the General Counsel adopts such practice, New England Tank
Industries, 147 NLRB 598,601 (1964)
', The Respondent apparently contested Cooper's claim to unemploy-
ment compensation as a result of which he did not receive regular weekly
payments during his period of unemployment He apparently prevailed in
the contest and was paid a lump sum of $800 in November 1964, after he
had obtained what has proven to be regular employment since October 5,
1964
Respondent's witness Union President Frank Gosmski testified that
jobs were scarce in Detroit in the March to October 1964 period
Cooper's registration with, and reporting to, the employment service is a
factor to be given weight with other circumstances in determining that he
made a reasonable search for employment, Southern Silk Mills, 116
NLRB 769, 770 (1956)
" Respondent offered Cooper reinstatement March 19, 1965, which
Cooper declined
METAL ASSEMBLIES, INC. 13
and the Teamsters were going to pursue his case and
assist him in any way they could.
Cooper testified the Teamsters offer was to get his job
back if he would help them, and on Kanar's advice that he
was going along with them, Cooper indicated he would
too. According to Teamsters Organizer Petroff, Cooper
accompanied the Teamsters organizers on two cccasions
in June and July 1964 (Cooper claimed it was only one
occasion) in passing out literature at the plant and talking
to people he knew. Apparently an election was held at
which the Teamsters did not prevail, and thereafter
Petroff did not see Cooper again.
It was while handbilling at the plant that Teamsters Or-
ganizer Petroff claimed he offered to help Cooper get a
job in ExCel industries, a paint shop with which the
Teamsters had a contract, and that Cooper allegedly
replied he was not interested because he was separated
from his wife, and that he could get by on the painting
work he was doing and whatever compensation he could
get. Cooper testified that at no time did the Petroffs offer
to do more than get his job back at Respondent's plant,
and denied that he told Petroff, Jr., he was not interested
in other employment and content to get along on unem-
ployment compensation and house painting.
Counsel for the Respondent has asked that I credit
Teamsters Organizer Petroff's testimony on the ground
that, as a union organizer, Petroff has no community of
interest with the Respondent and therefore would not
"desire to publicly support the claims of a company
against one who did some organizing work for his
Union."
Unfortunately for the contention, I think the testimony
of Petroff concerning the job offer was incredible on its
face. Petroff was testifying to events that had happened
several years ago and was permitted to testify from con-
temporaneous notes he had kept of the interviews and
happenings involving the Teamsters attempt at organizing
the employees of the Respondent in 1964. In Petroffs
own words, "I have got a file on this company the size of
your file" (referring to General Counsel's file in this case)
including notes on "all of the people I talked to," among
them Wilburn Cooper. These were pencil notes that pur-
ported to cover advance questions as well as what was
said or what transpired at the time. On the notes concern-
ing Cooper, the reference to ExCel Industries appeared
in ink, and on cross-examination Petroff admitted he had
written the ink notation a day or two before the hearing,
and not several years ago when the pencil notes were
written; that he had gone through his notes and other in-
formation in the file for information on Cooper in
preparation for the hearing; that there was nothing in his
file about ExCel Industries; that he had recalled the name
of ExCel Industries without referring to anything and had
written it down in the notes affecting Cooper before the
hearing, just out of memory.
When asked if he had discussed whether there was an
actual job at ExCel Industries with the Employer, Petroff
admitted he had not, he just knew they were hiring.
Petroff further testified that he had in mind a regular full-
time daytime job for Cooper at ExCel, which was located
about 6 or 7 miles distant from Respondent's plant. When
asked if such a job would not make it impossible for
Cooper to give Petroff the help he wanted from Cooper
at Respondent's plant in handbilling and talking to em-
ployees, Petroff backed off from his original testimony
that this was what he principally wanted Cooper for, and
stated that it was just a passing idea he had that it might
be good to have Cooper along when the Teamsters litera-
ture was handed out.9
With such incredible testimony, I am satisifed there
was no offer of a job to discriminatee Cooper by or
through Teamsters Organizer Petroff, whom I suspect
testified as he did out of pique with Cooper either for not
staying with the Teamsters or not producing the expected
enthusiasm or help for them, as the complete testimony
suggests.1° Cooper's open switch to the Teamsters got
him the attention of UAW Local 189 that he felt he had
been lacking. When Union President Frank Gosinski
heard that Cooper was working with Petroff of the Team-
sters, he began making inquiries, he testified, and he had
Chester Bartosik make inquiries. Bartosik was chairman
of Local 189's bargaining committee, and an employee of
Aetna Tool Company, which occupied common premises
with the Respondent. Bartosik, who testified at the call of
the Respondent, had originally recruited Cooper to or-
ganize Respondent's employees for Local 189. Bartosik
had several conversations with Cooper and, according to
Union President Gosinski, "All at once it just seemed
that Mr. Cooper didn't want to take any sides he just
wanted his case to be taken up for him "
Bartosik suggested to Union President Gosinski that
something should be done to get a job for discriminatee
Cooper because of his service to UAW, and because he
had been out of work too long and needed help, according
to the combined testimony of both. Gosinski said at first
he was furious with Cooper for the "dirty deal" and
"refused to even talk to him, I was mad at him," but that
Bartosik smoothed the way by pointing out ('sometimes
it pays to turn the other cheek." Gosinski said he relented
and talked with Cooper, who asked for help with another
job. Gosinski helped find a job at Michigan Metal Process
Company, where discriminatee Cooper has worked since
October 5, 1964.
111. CONCLUSIONS
It seems to me that the account respecting dis-
criminatee Cooper in the period March - October 1964
was not the account of a man willfully avoiding employ-
ment. On the contrary he not only actively sought work,
" The evidence also established that Cooper lived with, and was not
separated from, his wife during the period March through October 1964,
and that marital trouble developed (testimony of Union President Gosm-
ski) after Cooper got his new Job in October 1964 and began making more
money and staying out longer, according to the wife' s complaints to
Gosinski It was therefore hardly likely that Cooper told Petroff, in any al-
leged June or July discussion of an employment opportunity, that he was
separated from his wife
Similarly, Cooper was not collecting unemployment insurance in June
or July 1964 and had only a contested claim to such compensation , so that
again it was hardly likely that Cooper would indicate contentment to rely
on his unemployment compensation for his needs
These unlikely embellishments of Petrof 's story of the job offer add to
the unlikeliness of the story
10 Even if I were to assume that Petroff did suggest to Cooper that he
could get Cooper ajob at ExCel Industries , as described it was only a pos-
sibility, and "The fact that [Cooper] did not exhaust every Job possibility,
even assuming he would be qualified or eligible does not necessarily
disqualify him [for backpay] The criterion here is not success, it is
whether, all factors considered, the individual involved made an honest
good-faith effort" W C Nabors Co, 134 NLRB 1078, 1093 (1961),
enfd 323 F 2d 686 (C A 5, 1963), cert denied 376 U S 911
14 DECISIONS OF NATIONAL
and took casual employment , but risked alienating his as-
sociates in the UAW Local in order to press for getting
back to work , at his old or a new job . There was no
evidence of an offer of another job prior to October 5,
1964, when Cooper obtained new regular employment,
and no evidence that discriminatee Cooper declined any
job offers . The defense of willful loss of earnings is
without merit.''
"Compare We,nacker Brothers , Inc., 166 NLRB 14 (1967)
LABOR RELATIONS BOARD
RECOMMENDED ORDER
Pursuant to Section 10(c) of the Act , upon the basis of
the foregoing findings and conclusions , it is ordered that
Respondent Metal Assemblies, Inc., its officers, agents,
successors , and assigns, shall pay to discriminatee Wil-
burn Cooper as net backpay the sum of $2,527 . 29, with
interest at 6 percent per annum calculated as provided in
fn. 3, supra , less any tax withholdings required by
Federal of State law.