Metal Plating Corp.

National Labor Relations Board - Board Decisions

Jan 11, 1973

201 N.L.R.B. 203 (N.L.R.B. 1973)

METAL PLATING CORPORATION
Metal Plating Corporation and Kenneth Eugene
Crook. Case 7-CA-9474(1)
January 11, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On September 29, 1972, Administrative Law Judge
Maurice S. Bush issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed a letter in support of the attached
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as ahiended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, only to the
extent consistent herewith.
The Administrative Law Judge recommended that
the complaint herein, which alleged that Respondent
violated Section 8(a)(1) of the Act by discharging
Kenneth Eugene Crook for engaging in protected
concerted activity, be dismissed in its entirety. For
the reasons set forth below we do not agree. In our
opinion the facts, as found by the Administrative
Law Judge on the basis of his credibility resolutions'
and fully set forth in the attached Decision, sustain
the allegations of the complaint.
Briefly, the facts show that Charging Party Crook
had been employed as a transfer man on Respon-
dent's chrome and nickel plating line until he was
discharged on April 13, 1972. After starting work
that morning, Crook and three coworkers agreed to
complain to General Manager Paul Baril about being
short one man on the chrome line and about the
extra work that it caused them.2 Shortly after 8
o'clock that morning the four employees sought out
Baril in his office. Crook acted as principal spokes-
man, stated their complaint, and requested that an
additional man be hired. Baril said that the employ-
' The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C A. 3). We have carefully
examined the record and find no basis for reversing his findings.
2 The Administrative Law Judge correctly stated that whether they were
in fact short handed was immaterial . What is material is that their
complaint concerned working conditions
3 We agree with the Administrative Law Judge that the four employees
201 NLRB No. 28
203
ees should do the best they could and that he would
try to hire someone the next day.3 Crook and the
others apparently were satisfied with Baril's response
and started to return to their work stations.
At this point, Willie Campbell, foreman over the
nickel and chrome plating operations, burst into
Baril's office and demanded to know, "What's the
problem?" Campbell and Crook then engaged in an
angry exchange of words.4 More specifically, Crook
said that he was a man and not afraid to speak up
and began to tell Campbell what the problem was.
Campbell angrily ordered Crook to return to his
work station stating, "If you don't want to do it [go
back to work], as far as I'm concerned you can go
home." Crook asked if he were fired and Campbell
repeated his statement. Crook again asked, "Am I
fired? Do you want to get rid of me?" and Campbell
fired him. Crook responded that he would rather be
collecting unemployment compensation.5 Through-
out this exchange neither Baril nor any of the other
employees commented, although they were present.
At some point during the exchange Campbell called
Crook, "the instigator, the troublemaker, and the
leader." 6
Crook went to the locker room, changed his
clothes, picked up his check, and walked out. The
three coworkers, who had been present throughout
the exchange, left the plant with Crook. They did not
return to work that day.7
The Administrative Law Judge found that Camp-
bell lacked restraint, tact, and consideration, but that
Campbell fired Crook in response to Crook's
taunting "Am I fired? Am I fired?" and Crook's
avoidance of Campbell's order to return to work.
Contrary to the Administrative Law Judge, however,
we conclude on the basis of the foregoing facts that
Respondent violated the Act by discharging Crook.
Section 8(a)(1) of the Act forbids an employer "to
interfere with, restrain, or coerce" employees in the
exercise of their rights guaranteed by Section 7,
including the right to engage in "other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection." It is now established
that a single, spontaneous work stoppage, absent
unusual circumstances, is protected by Section 7, and
had been engaged ih concerted activity within the protection of the Act.
4 There was a longstanding bad feeling between the two engendered by
Campbell 's rough tongue and Campbell's belief that Crook was the
instigator of employee unrest
a Crook's statement on a prior occasion that because of partial work
weeks it would be better to draw unemployment compensation is not
material to the events surrounding his discharge.
6 There is evidence that Crook had acted as spokesman for fellow
employees on prior occasions.
I The three coworkers were not fired.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharging employees for engaging in such activity
violates Section 8(a)(1).8 In our opinion, such is the
case here.
The record is clear that when Crook and his
coworkers complained to Baril they were acting in
concert for their mutual aid and protection. The
record is equally clear that the four employees
continued in their concerted activities when Camp-
bell entered the office. That the four employees had,
prior to Campbell's entrance, apparently been
satisfied with Baril's response cannot detract from
the concerted nature of their subsequent activity.
Crook began to state the problem, a complaint about
working conditions, and Campbell ordered him to
return to work. Crook refused and was discharged.
The other employees remained in the office and
refused to return to work. In fact, they left with
Crook after his discharge. Thus, we find that the four
employees were engaged in a spontaneous work
stoppage to protest working conditions.
Campbell's order to return to work was coupled
with the threat that refusal to comply would (and it
did) result in discharge. Crook by returning to work
would have to forfeit his Section 7 rights to act in
concert with fellow employees to protest working
conditions and withhold employment. It is well
established that an employer cannot require forfei-
ture of statutory rights as a condition of continued
employment.9 Accordingly, we find that Crook had a
protected right to avoid Campbell's order to return to
work.
Neither Crook's repeated asking "Am I fired?" nor
his statement that he would rather collect unemploy-
ment compensation detracts from the conclusion that
Crook was discharged for not returning to work. The
latter was clearly a response to his discharge (or
threat thereof) and was merely a succinct complaint
about working conditions. Crook's repeated question
was in response to Campbell's repeated statement,
"If you don't want to do it, as far as I'm concerned,
you can go home." An employee would naturally be
concerned with whether Campbell meant that he had
been discharged. In addition, as found by the
Administrative Law Judge, Campbell did not handle
the situation with restraint, tact, and consideration.
To require an employee in such circumstances to
exercise restraint, tact, and consideration would be
untenable and would severely erode the protection of
the Act.
For the foregoing reasons, we conclude that Crook
was discharged for refusing to return to work. Since
his refusal was protected concerted activity, Crook's
discharge violated Section 8(a)(1) of the Act. Accord-
ingly, we shall order that Respondent cease and
8 N G.R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9.
9 J H. Rutter-Rex Manufacturing Co, Inc, 164 NLRB 5, 11, enfd. as
desist therefrom and offer Crook full reinstatement
with backpay.
CONCLUSIONS OF LAW
1. Metal Plating Corporation , a Michigan Corpo-
ration , with its principal place of business at Oak
Park , Michigan , is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. By discharging employee Kenneth Eugene
Crook on April 13, 1972, Respondent has interfered
with, restrained, and coerced employees in the
exercise of rights guaranteed in Section 7 of the Act,
and has thereby engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1)
of the Act.
3. The unfair labor practice is an unfair labor
practice affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Metal Plating Corporation, Oak Park, Michigan, its
officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging employees because they engaged in
concerted action for their mutual aid and protection.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act to engage in
concerted activities for their mutual aid and protec-
tion or to refrain from such activity.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer to Kenneth Eugene Crook immediate and
full reinstatement to his former position or, if that
position is no longer available, to a substantially
equivalent position, without prejudice to his seniority
or other rights and privileges.
(b) Make Kenneth Eugene Crook whole for any
loss of pay he may have suffered by reason of the
Respondent's discrimination against him by payment
to him of a sum of money equal to that which he
normally would have earned as wages from the date
of the discrimination to the date of Respondent's
offer of reinstatement, less his net earnings during
said period, in accordance with the formula pre-
scribed in F. W. Woolworth Company, 90 NLRB 289,
with interest thereon at the rate of 6 percent per
annum, as set forth in Isis Plumbing & Heating Co.,
138 NLRB 716.
(c) Preserve and, upon request, make available to
modified 415 F.2d 1133; Royal Crown Bottling Co., Inc., 188 NLRB No. 54.
METAL PLATING CORPORATION
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its plant in Oak Park, Michigan, copies
of the attached notice marked "Appendix." 10 Copies
of said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by
Respondent's authorized representative, shall be
posted by 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.
MEMBER KENNEDY, dissenting:
I would affirm the conclusion of the Administra-
tive Law Judge that Crook invited his discharge
which "would give him time to find more congenial
work and supervision elsewhere while drawing
unemployment compensation." The majority's rever-
sal of the Administrative Law Judge's dismissal is
unwarranted.
1° In the event that this 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 read "Posted pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give
evidence, it has been decided that we, Metal Plating
Corporation, violated the National Labor Relations
Act. The Board therefore ordered us to post this
notice.
The Act gives employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or for other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of these rights.
WE WILL NOT discharge employees because
they engage in concerted action for their mutual
aid and protection.
205
WE WILL offer to give Kenneth Eugene Crook
his job back with full seniority and other rights
and privileges.
WE WILL also make up any pay he lost, with 6
percent interest.
METAL PLATING
CORPORATION
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
vidual, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 500 Book Building, 1249 Washington
Boulevard, Detroit, Michigan 48226, Telephone
313-226-3200.
DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH , Administrative Law Judge : The issue
in this proceeding under the pleadings is whether the
Respondent through its foreman Willie Campbell dis-
charged Kenneth Eugene Crook, the Charging Party, on
April 13, 1972, in violation of Section 8(a)(1) of the
National Labor Relations Act because of his conduct in
engaging that day in concerted activities with other
employees in presenting grievances over working condi-
tions at Respondent 's plant.
Although the Respondent has not filed a brief in this
proceeding in which it represented itself pro se through its
president and not by counsel , it appears from the record
that its principal defense is that Crook was discharged not
because of his protest over working conditions but because
he refused to return to his work station after he had lodged
his protest and that he provoked his own discharge by
repeatedly asking his foreman , "Am I fired?" in the face of
the foreman 's reiterated orders to return to his work station
or go home.
The complaint herein was issued on May 17, 1972,
pursuant to a charge filed on April 18, 1972, and duly
served upon Respondent . Respondent's answer denies the
alleged unfair labor practices.
The case was tried before me on July 11, 1972 , at Detroit,
Michigan . General Counsel filed a brief herein which has
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been carefully reviewed and considered . As heretofore
noted, Respondent has not filed a brief.
For reasons hereinafter indicated , I will recommend that
the complaint be dismissed in its entirety for failure of
proof of the alleged unfair labor practices.
Upon the entire record in the case and from my
observations ' of the witnesses , I make the following:
FINDINGS OF FACT
Respondent Metal Plating Corporation, a Michigan
corporation, with principal office, place of business, and
plant at Oak Park , Michigan , is engaged in the business of
chrome plating sundry parts sent to it for such purposes by
various fabricators of stampings, rolled formed parts, etc.'
During the past calendar year, which is a representative
period, the Respondent, in the course and conduct of its
business operations , purchased and caused to be transport-
ed and delivered at its Oak Park plant , chemicals and other
goods and materials valued in excess of $90,000, of which
goods and materials valued in excess of $50 ,000 were
transported and delivered to its plant at Oak Park,
Michigan, directly from points outside the State of
Michigan . The Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
The above-named Charging Party is an individual.
1. THE ALLEGED UNFAIR LABOR PRACTICES
At the time of Crook's discharge on April 13, 1972, the
Company employed approximately 25 employees at its
plating plant. Other than J. Bailey Clare and Paul Baril, the
Respondent 's president and general manager , respectively,
all other employees in the plant are black men who are
engaged in the actual physical work of dunking the parts in
the various tanks for chrome plating. They man the 24
tanks through which the parts go progressively. Each part
passes through two separate lines of tanks , known as the
nickel and chrome lines , as it takes both of these minerals
to complete the plating of a part. The plating is done by
crews of employees consisting of five men on the nickel
line and either two or three on the chrome line, the precise
number of the latter being in dispute. When a crew
member is absent , his work must be assumed and carried
on by the other members of the crew which makes their
work that much the harder than when there is a full crew.
Each part goes through approximately 20 tanks of
chemical washes, rinses, and nickel and chrome plating.
Much of the work involves the lifting of the parts which
average about 30 pounds from tank to tank despite a
comparatively recent installation of a hoist which makes
the transfer of a part from one tank to another somewhat
easier . The work on the lines is physically hard work. The
employee who transfers a part from one tank to another is
known as a transfer man. Crook was a transfer man.
The Company has very great difficulty in keeping full
crews because of extreme employee absenteeism and a very
high labor turnover .2 The plant suffers a daily absenteeism
of 25 to 30 percent and a labor turnover of 200 to 300
percent per year. Many new employees quit after a day or
part day's work.
One of the reasons for Respondent 's high absenteeism is
the unpopularity of Willie Campbell, the foreman who
discharged Crook. Although the record leaves no doubt
that Campbell , a black man of about 45, is highly efficient
in pushing the work through the plant , the credited and
undisputed testimony of Crook and former employee
Charles Flemister shows that he is generally greatly
disliked and feared by the younger black men who work
under him because of his rough, caustic, contemptuous,
and dictatorial manner of dealing with them . The record
shows that he is a harsh disciplinarian . Because of these
personality qualities he is regarded by employees as being
"nasty." The younger employees are particularly resentful
over Campbell's habit of addressing them as "boy" when
he is displeased with something one of them has done.
Thus, if an employee is late in reporting to work, Campbell
habitually reproached the man with "Where were you at,
boy?" To the indignant reply, "I'm a man," Campbell
repeated the indignity by telling the employee , "Well, you
go back where you was, boy," thereby sending him home
for the day. This was a daily occurrence at the plant.
The second reason for the high absenteeism at Respon-
dent's plant is that at the times here material the plant from
time to time was operated only 2 or 3 days a week due to
lack of work and because of this some of the employees
would absent themselves to search for more full-time
employment .3
Crook, a tall, handsome , proud, and highly intelligent
black man of 25, married and the father of four children,
was regarded by Campbell , his foreman, as a good and
steady worker. Crook, notwithstanding his reputation as a
good worker, had difficulties with Campbell because of the
latter's caustic and autocratic way of dealing with the men
under him. But the record shows that Crook because of his
pride and independence stood up to Campbell more than
any other employee and that other employees sought his
aid in interceding for them with Campbell. Crook on
several occasions acted as spokesman for other employees
and at one time complained to Mr . Clare, the aforemen-
tioned president of the Company, about Campbell's
inability to "communicate" with the men who worked
under him . Because of these challenges to Campbell's
authority, there was a highly strained relationship between
Crook and Campbell at the time of Crook's discharge by
Campbell. As will be shown below, Crook's persistence in
standing up to Campbell, and not his involvement in
concerted activities for the improvement of working
conditions, led to his discharge.
On April 13, 1972, the day of Crook's discharge, the crew
I That part of par. 3 of the complaint which alleges that the Respondent engaged in the chrome plating of various parts for other firms.
is "engaged in the processing and manufacture , sale and distribution of 2 All witnesses, both supervisory and nonsupervisory, agree on this
nickel and chrome plated automotive parts and related products " is 3 It is evident from the record that in addition there are sociological
conformed to proof to show as set forth in the above finding that it is merely reasons for the high absenteeism in Respondent 's industry.
METAL PLATING CORPORATION
on which Crook worked was one man short of the normal
crew complement4 which was not an unusual phenomena
due to the high daily absenteeism at the plant. Shortly after
the start of work that morning, Crook and three of his
coworkers on the same crew, David Jones, Arnie Driver,
and the aforementioned Flemister, decided to make a
complaint at their next break to General Manager Baril
about being short one man and about the extra work that
entailed for the remaining crew members and to see if they
could get him to put on another man. Shortly after 8
o'clock that morning, at a break period, the four employees
sought out Baril in his office and with Crook as their
principal spokesman made their complaint and requested
that an additional man be hired to replace the missing or
absent man. Crook also complained that he had a sore
shoulder which made the work even harder for him with
one man short . Baril heard the men out. In his testimony,
Baril acknowledged that "one man hadn't shown up that
particular day" and that he told the men "to try and get
along" with the one man short that day and that he "would
try to attempt to hire somebody to come in to work the
following day." The employee who was missing that day
was a man by the name of Melvin Fant who had a high
record of absenteeism.
According to Baril , the men were "pacified" by his
assurances of putting on another employee the next day
and ready to return to their stations when Campbell burst
into Baril's office . Campbell demanded , "What's the
problem?"
An angry exchange then took place between Campbell
and Crook. As may be expected , there are differences in
the versions of the witnesses as to precisely what was said
in these exchanges. I credit Crook's testimony that
Campbell accused him5 of being "the instigator, trouble-
maker, and the leader" in the concerted activity to get an
additional man on the chrome line. The composite
testimony of all witnesses establishes that Campbell then
told Crook that the work for the day had to be carried out
even if for present purposes no reference is made to the
disputed facts the crew was one man short. Campbell
thereupon ordered the men to return to their work stations.
Crook gave two versions of the exchange between
himself and Campbell. Under direct examination by
counsel for Geperal Counsel, Crook testified as follows:
Q. (By counsel for General Counsel.) Now you
indicated Campbell came in . Please relate what
happened at that point.
A. Okay. Campbell walked in and he said, "What's
the problem," so I told him that we came in the office
and asked Paul [Barill to hire another man on the
chrome line because we were a man short . So then Paul
4 There is a conflict of testimony on whether the crew that morning was
one man short . President Clare, who was not at the plant that morning,
testified repeatedly that on that day there was a full crew present of five
men on the nickel line and two men on the chrome line. Campbell also
testified to the same effect . Crook and coworker Flemister testified that a
normal crew consisted of five men on the nickel line and three men on the
chrome line. However, whatever number of men constituted a full normal
crew at that time, I credit the testimony of Clare's general manager, Paul
Bard, and that of Crook and Flemister that the crew was one man short that
morning as against Clare's and Campbell's testimony that the full crew was
on the job that morning In any event, it is immaterial whether or or not the
crew was one man short on the day in question as the issue in the case is not
207
asked Campbell if there was a shortage of a man on the
chrome line and Campbell said, "yes." Then Campbell
turned around and he walked over towards me and he
said, "Crook, you must be the instigator, the trouble-
maker and the leader, and as far as I'm concerned, you
can go."
Q. All right. What did you say?
A. I asked him if I was fired.
Q. What was his response?
A. He said, "Yes, you're fired."
Crook's second version of the exchange between himself
and Campbell under questioning by the trior of facts is as
follows:
JUDGE BUSH : Is it your testimony that Mr. Campbell
simply said to you, "You're fired," and nothing else?
THE WITNESS: Well, we had words before that, but
he did say I was fired.
s s s s s
JUDGE BUSH: Before he said, "You're fired," did he
say, "Go back to your job or leave?"
THE WITNESS: Well, he mentioned, "If you don't
want to do it, as far as I'm concerned you can go
home."
JUDGE BUSH : All right. Did you refuse to go back to
do your job?
THE WITNESS: No, I did not.
JUDGE BUSH: Well, what was his exact words?
THE WITNESS: He said, "If you don't want to do it,
you can go home."
s s s s
JUDGE BUSH : When he said, "If you don't want to
do it," didn't he mean go back to your job?
THE WITNESS: That's the way I interpreted it.
[Emphasis supplied.]
JUDGE BUSH : And you chose not to go back to your
job?
THE WITNESS: No.
D
JUDGE BUSH: Isn't that what you did?
THE WITNESS: He said, "If you don't want to do it,
you can go home," so I asked him if I was fired.
JUDGE BUSH : But he did give you the opportunity to
go back to your job, did he not?
THE WITNESS : He said-
JUDGE BUSH: He said , "If you don' t want to do it,
you can go home"?
THE WITNESS: I believe he said it in those words.
whether Crook and his coworkers were justified in complaining about
working conditions that morning but whether Crook was discharged for
engaging in such protected concerted activities for their mutual aid and
protection.
S Not denied by Campbell in his testimony.
6 On the question of whether there was a full crew, I do not credit
Campbell's insistent testimony that a full crew was present that day. As
heretofore noted , the testimony of General Manager Baril shows that the
crew was short one man that day . Crook's credited testimony also shows
that when Campbell burst into Banl's office , Banl asked him if they were
one man short on the chrome line and that Campbell replied , "Yes."
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
JUDGE BUSH : All right. Since you chose not to go
back to your job, you decided to quit, isn't that correct?
THE WITNESS: No, I didn't decide to quit because-
JUDGE BUSH : But he did give you the option of going
back to your job, did he not?
JUDGE BUSH: He did tell you that if you're not
satisfied, you can quit. Isn't that what he said in effect?
THE WITNESS: No, he did not.
JUDGE BUSH: What did he say?
THE WITNESS: He did not say quit. He just said I was
fired.
JUDGE BUSH: You're fired?
THE WITNESS: Right.
JUDGE BUSH: If you don't want to go back, you're
fired. Is that what he said?
THE WITNESS: "If you don't want to do it, as far as
I'm concerned, you can go home."
JUDGE BUSH: By "do it" he meant go back to your
job and work the rest of the day under the circum-
stances that prevailed that day?
THE WITNESS: I guess he meant back to work.
[Emphasis supplied.]
From a careful study of Crook's testimony and all other
testimony on the exchange between Crook and Campbell, I
discredit Crook's first version of the exchange and fully
credit his second version 7 of the last conversation he had
with Campbell which led to his discharge. The versions of
Campbell, the other party to the conversation that ended in
Crook's termination, is the same as Crook's second version.
Other corroboration of Crook's second version of the
terminating talk is found in the testimony of General
Manager Baril, Wilbert Perkins, who worked on the same
crew with Crook and overheard the conversation between
Campbell and Crook, and Foreman Willie Adams, who
likewise overheard the conversation.
During the tense moments when Campbell was telling
Crook to either go back to work or go home, Crook
repeatedly taunted Campbell with the question, "Am I
fired, am I fired?" until Campbell finally told him he was
fired. It is evident from Crook's own testimony as set forth
above that he goaded Campbell into firing him by
demanding, "Am I fired?" in response to Campbell's
repeated order that he go back to his work station or go
home. (Tr. 44, 79) Foreman Adams, when asked under
cross-examination by counsel for General Counsel if
Campbell told Crook he was discharged, replied, "Well, I
don't say he [Campbell] discharged him. He [Crook]
discharged himself." Similarly, the credited testimony of
coworker Perkins shows that Crook baited Campbell into
firing him by repeatedly asking Campbell, "Do you want
to get rid of me? Do you want to get rid of me?"
In the exchange that led to Crook's discharge, Crook told
Campbell that "he wasn't afraid to speak up for" himself
7 Crook, on his redirect examination , sought to walk away from his
second version of his termination conversation with Campbell by answer-
ing, "No" to his attempted rehabilitation question by counsel to General
Counsel, ". . did you indicate to Mr. Campbell that you were refusing to
do the work?" This denial is not credited . Crook's second version of the
because he "was a man" and "wanted to be treated like a
man„
The record shows that both before and after the verbal
scuffle that led to Crook's discharge, Crook told Campbell
that he would rather "draw unemployment compensation
than be working here." 8
Throughout the verbal exchange between Campbell and
Crook that ended with Crook's termination , Baril, who as
general manager was Campbell's superior although some
15 years younger, remained completely silent.
Upon Crook's discharge , Flemister , Jones, and Driner
also walked out of the plant with Crook although they had
not been fired by Campbell. As aforementioned they were
the coworkers who went with Crook to see Baril to
complain about the one-man shortage on the chrome line.
Respondent reoffered jobs to Jones and Driner but not to
Crook and Flemister . Crook was out of work for a little less
than 10 weeks and then found employment with the city of
Detroit as a truckdriver which was the job he was holding
at the time of the trial in this proceeding.
Discussion and Conclusions
The record leaves no doubt that Crook engaged in
protected concerted activities as a spokesman for a number
of his coworkers in presenting protests to management
over the working conditions on the tank lines caused by the
shortage of a crew member . He sought this first on the level
of Respondent's general manager, Baril. There is no claim
that Baril violated Crook's Section 7 rights as Baril did not
fire Crook or otherwise discipline him for presenting the
complaint but on the contrary listened sympathetically to
Crook's complaint and promised to put on another man
the very next day to alleviate the adverse working
conditions brought about by the shortage of a man on the
chrome line . At that point Crook and the other crew
members with him were ready to return to the tank lines to
finish up the day's work notwithstanding the shortage of a
man on the line and the extra work that entailed for them.
The trouble started when Crook's immediate supervisor
Campbell, who in turn worked under Baril, burst into
Bnril's office while Crook and his coworkers were still there
and belligerentlyedemanded to know what the problem
was. Crook again as spokesman explained the "problem"
to Campbell who, of course , was fully aware of the
problem. This caused the explosion between the two men
which led to Crook's discharge as there was longstanding
bad feeling between them engendered by Campbell's rough
tongue and Campbell's belief that Crook was the instigator
of employee unrest about working conditions at the plant.
What was said in the brief but explosive exchange that
took place between Campbell and Crook, after Crook
stated the "problem" to Campbell, is determinative of the
issue herein of whether Crook's ensuing discharge by
Campbell is a violation of Section 8(a)(1) as alleged by the
complaint.
Based on Crook's own testimony , as developed under my
terminating conversation with Campbell makes it altogether clear that
Crook was fired because he refused Campbell's order to go back to work at
his work station.
8 This finding is based on the credited testimony of Campbell and Bard
(Tr 128, 193-194) Crook's denial that he made the statement is not credited.
METAL PLATING CORPORATION
questioning , which as shown above corresponds with that
of Campbell and virtually all other witnesses, I find that
Crook was not discharged by Campbell because of his
complaint as spokesman about the shortage of one man on
the chrome line and the extra work it caused for those at
work , but because after Crook had made his complaint he
refused to obey Campbell 's order that he return to his work
station and carry on the day's work as indeed Crook and
his fellow workers had agreed to do only a few moments
earlier to Baril sans the missing man on the chrome line.
This is evident from the fact that Campbell 's first reaction
to Crook's complaint was not a discharge but an angry
order that he return to his work station . Crook , touched to
the quick by his pride and his determination to stand up to
Campbell , reacted to the rough and surly order by taunting
Campbell with the question , "Am I fired , am I fired?" It
was only in response to this taunting and Crook's patent
avoidance of the order to return to his work that Campbell
fired Crook . Obviously Campbell did not handle the
situation with the restraint , tact , and consideration that
good personnel relations would require , but under the
guarantees set forth in Section 7 such considerations are
not criteria for the determination of violations under
Section 8(a)(1) of the Act. Under Sections 7 and 8(a)(1) the
209
concern is solely with the question of whether there has
been an interference with the right to concerted activities
for mutual aid or protection . The record here fails to show
any interference with such rights . Crook, hot-headedly,
courted his discharge by his refusal to obey an order to go
back to work after he had stated his complaint . It is evident
that on the spur of the moment he came to believe that
working under Campbell had become intolerable, that a
discharge was preferable, and that it would give him the
time to find more congenial work and supervision
elsewhere while drawing unemployment compensation.
CONCLUSION OF LAW
By discharging Kenneth Eugene Crook on April 13,
1972, Respondent has not engaged in unfair labor practices
violative of Section 8(a)(1) of the Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.