Milford Fabricating Co., Inc.

National Labor Relations Board - Board Decisions

Oct 29, 1971

193 N.L.R.B. 1012 (N.L.R.B. 1971)

1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Milford Fabricating Company, Inc. and International
Union, United Automobile , Aerospace and Agricul-
tural Implement Workers of America (UAW) and
Dana Robert White. Cases 7-CA-7951 and
7-CA-7951-2
October 29, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On March 30, 1971, Trial Examiner George Turitz
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 Decision. The Trial Exam-
iner also found that the Respondent had not engaged
in certain other unfair labor practices and recom-
mended that such allegations be dismissed. Thereaf-
ter, the 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 proceeding 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, the brief, and
the entire record in this proceeding, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner except as modified below.
1. The Trial Examiner found, and we agree, that
the Respondent instituted a no-solicitation rule for
the purpose of hindering union organization, and that
by issuing written warnings to employees Martin and
Gerou, Respondent violated Section 8(a)(1) and (3) of
the Act. We also agree that Respondent's oral
warning to Gerou violated Section 8(a)(1) of the Act.
2. The Trial Examiner also found, and we agree,
that Respondent violated Section 8(a)(1) and (3) of
the Act by discharging Dana White. In reaching this
conclusion we agree with the Trial Examiner that the
employees classified as leaders are supervisors within
the meaning of the Act.
3. The Trial Examiner further found that the
Respondent violated Section 8(a)(1) and (3) of the Act
by discharging Charles Clinton, a probationary
employee, because of his union activities. For the
reasons discussed below, we do not agree.
The record supports the Trial Examiner's findings
that Respondent had knowledge of Clinton's active
interest in the Union and expressed disapproval of
Clinton's union activities. The basic question, howev-
er, is whether the termination of Clinton on May 22,
1970, together with seven class B mechanics and five
other probationary employees was for the purpose of
"weeding" out Clinton, an active union adherent, or
had an economic basis. It is undisputed that a week
before the layoff, on May 15, the Respondent in a
campaign speech to the employees boasted that it had
never had a layoff, and the record supports the
testimony of the Union's witnesses that a certain
amount of work remained to be performed and was
still being performed in the plaster department in
which Clinton was employed. The work in question
was performed by the class A mechanics.
Contrary to the Trial Examiner, however, we find
that the record supports the Respondent's contention
that there was not sufficient work to require the
services of the seven regular Class B mechanics who
were laid off or the six probationary employees who
were discharged. The Respondent's evidence that
there was a sharp decrease in orders, which in fact
began prior to the May 15 speech, and that the plaster
department, in which Clinton worked, was hardest
hit, is uncontroverted. Nor do we find strong support
in the record for the Trial Examiner's conclusion that
Clinton enjoyed a special probationary status which
would justify retaining him over other employees with
higher seniority and longer experience. Significantly,
we note that no charges were filed and no allegations
were made during the hearing, or in any of the
pleadings, that the termination of the other employees
was improper.' When work improved only four of the
seven regular class B mechanics laid off were recalled.
Accordingly, we find that there is insufficient
evidence to conclude that Clinton was singled out on
May 22, 1970, for discriminatory reasons and con-
clude that the layoff of Clinton, as well as the other 12
employees, was for legitimate business reasons. We
shall, therefore, dismiss the 8(a)(3) and (1) allegation
of the complaint relating to Charles Clinton.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
I We find Eugene Luhr and Co, 187 NLRB No 110, cited by the Trial the four employees of the barge was a violation of Section 8(a)(3) and (1)
Examiner in support of his conclusion that layoff was for the purpose of The Regional Director refused to issue a complaint in regard to the two
singling out Clinton inapposite In that case four employees of the barge yard crew members and the Board found that spch dismissal was irrelevant
Sheryl, as well as two other employees in the regular yard crew, were laid in finding a discriminatory motive in the discontinuance of the Sheryl
off The General Counsel alleged and the Board found that the layoff of operation
193 NLRB No. 146
MILFORD FABRICATING CO. 1013
Relations Board adopts as its order the recommended
Order of the Trial Examiner as modified below and
hereby orders that Respondent Milford Fabricating
Company, Inc., Detroit, Michigan, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, as
herein modified:
1. Delete the name of Charles Dean Clinton from
paragraph 2(a), 2(b), and 2(d) of the recommended
Order.
2. Substitute the following for the last paragraph
of the recommended Order:
"IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
other than found in this Decision."
3. Substitute the attached notice for the Trial
Examiner's notice.
APPENDIX
No1ICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Dana Robert White immediate
and full reinstatement to his former job, without
prejudice to his seniority and other rights and
privileges.
WE WILL pay Dana Robert White for any loss of
wages he suffered as a result of the discrimination
which it has been found we practiced against him.
WE WILL expunge from the personnel records of
Larry Gerou and Dennis Martin and from all our
other records the written warnings issued to them
on May 27, 1970, and all notations referring to
such warnings or to the oral warning issued to
Larry Gerou on May 20, 1970.
WE WILL NOT maintain or enforce any rule or
policy prohibiting solicitation or other union
activities on worktime while permitting other types
of noncompany activities during worktime, where
the purpose is to hinder or interfere with union
organization.
WE WILL NOT discharge or issue disciplinary
warnings to employees, or discriminate against
them in any other manner because of their union
activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their right to self-organization, to form,
join, and assist a labor organization, and to
bargain collectively through representatives of
their own choosing, and to engage in other
concerted activities, except insofar as these rights
might be affected by a contract with a labor
organization, if validly made in conformity with
Section 8(a)(3) of the National Labor Relations
Act.
MILFORD FABRICATING
COMPANY
(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 compliance
with its provisions may be directed to the Board's
Office, 500 Book Building, 1249 Washington Boule-
vard, Detroit, Michigan 48226, Telephone
313-226-3200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE TuRITZ, Trial Examiner : Upon charges and
amended charges filed by International Union , United
Automobile , Aerospace and Agricultural Implement Work-
ers of America (UAW) (the Union and, at times , the UAW)
in Case 7-CA-795 1, and by Dana Robert White (White) in
Case 7-CA-7951-2,1 the General Counsel of the National
Labor Relations Board (the Board), through the Regional
Director for Region 7, on July 31 issued and served an
order consolidating said cases and a complaint and notice
of hearing against Milford Fabricating Company, Inc.
(Respondent and, at times , the Company). Respondent
filed its answer in which it denied all allegations of unfair
labor practices . A hearing on the complaint was held before
me at Detroit , Michigan , on December 2, 3, 4, 21, and 22.
The General Counsel , Respondent, and the UAW were
represented by counsel at the hearing , and Respondent has
submitted a brief.
Upon the entire record and from my observation of the
witnesses I make the following:
' The respective dates of filing of the charge and amended charges in
Case 7-CA-7951 were May 21 and 25 and June 16, 1970; the respective
dates of service on Respondent were May 25 and 29 and June 23 The
charge in Case 7-CA-7951-2 was filed on June 22 and served on
Respondent on June 24 All dates referred to in this Decision , unless
otherwise noted, were in 1970.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, Milford Fabricating Company, Inc., is a
Pennsylvania corporation having its office and plant in
Detroit, Michigan, where it is engaged in the manufacture,
sale, and distribution of prototype sheet metal products and
related products.2 In the course and conduct of its
operations at the Detroit plant Respondent annually
purchases and causes to be shipped from points outside the
State of Michigan directly to said plant materials valued at
in excess of $50,000, and annually sells and ships from said
plant directly to its customers located outside the State of
Michigan products valued at in excess of $50,000. I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
National Labor Relations Act, as amended (the Act).
If. THE LABOR ORGANIZATION INVOLVED
International Union , United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), is a
labor organization within the meaning of Section 2(5) of the
Act.
iII. THE UNFAIR LABOR PRACTICES
The principal issues litigated at the hearing were:
Whether leaders were supervisors; whether Respondent's
rule against solicitation was new and discriminatory; and
whether Respondent's discharge of Dana White and
Charles Clinton was discriminatory.
A. The Status of Leaders
Respondent's production was carried on in two main
divisions; namely, tooling operations, with a plant manager
in charge, and sheet metal operations, with a plant manager
and an assistant plant manager in charge. Respondent also
had six "managers," each over several departments. Under
the managers were section leaders, and under them
leaders.3 Except in inspection each leader was in charge of
from 3 to 15 employees.
Leaders spent approximately 85 to 90 percent of their
time doing production work. They were assigned jobs by
their section leaders and then, in turn, distributed work to
their men, a responsibility requiring the exercise of
judgment because of the varying degrees of skill or
experience needed. They were responsible for meeting
schedules and at times took men from one job and put them
on another. They instructed their men how work was to be
done and the men were required to follow these instruc-
tions. They had authority to allow their men to leave work
early and, in the absence of the manager, which occurred to
a material extent, even to take a full day off. All this was
subject to the need to meet production schedules, and if the
leader had any doubt as to whether a man could be spared,
2 Respondent is a wholly owned subsidiary of the Budd Company
3 In some instances the job of section leader was vacant at the time of
the hearing because of the recent promotion of the section leader to
manager
Aratari, the assistant plant manager, testified that the leaders'
he consulted his manager. Leaders had responsibility for
their men's worktime; they initialed timecards in case of
irregularity; and they reported men who got to the
washroom before the specified cleanup time . They warned
men to attend to their work. At least one leader held
meetings of his men.
Respondent evaluated all employees several times each
year for the purpose of merit increases . Leaders were
consulted by their section leaders or managers for their
opinions and recommendations and these, in turn, gave
their own recommendations to the appropriate plant
manager or assistant plant manager. The increases were
granted or withheld by a group of six men, the three
corporate officers, the two plant managers , and the
assistant plant manager. Every week these six officials held
a meeting at which minutes were taken, and the latter three
reported their own recommendations to the meeting, based
on the departmental managers ' and leaders'
recommendations? Leaders' recommendations were not
always ultimately followed. However, the record shows that
when Leader Cruz learned that Harrison had not received
the 40-cent raise he had recommended, only 20 cents, he
became angry and went to speak to his superiors, and
Harrison was given the 40-cent increase.
While leaders' recommendations were not always
followed, the fact that they were systematically sought and
considered demonstrates that they did carry weight, and
Harrison's experience with Cruz's recommendation illus-
trated this forcefully. As the leaders responsibly directed
men in their work, excused them from work, participated in
maintaining discipline with respect to worktime, and made
effective recommendations as to wage increases , I find that
they were supervisors.5
B. The No-Solicitation Rule and the Reprimands
and Warnings
Organization among the employees on behalf of the
UAW started on May 12. Respondent learned of it on May
14 and on May 15 held a meeting of the employees for the
purpose of discussing the Union. The meeting was
addressed by Aram Safilian and Edward Nishon, president
and vice president of Respondent, respectively. While
strongly urging the employees to reject the Union, they
assured them on several occasions that if they really wanted
a union, Respondent would go along with their decision.
Nishon's final remark was:
... I'd like to wrap this meeting up now and I'd like
to say one more time that the management here at
Milford has no objection to our men forming a umon if
they really want to. When you get better, we get better. I
want you to talk together and decide what you together
as a group are in favor of.
For a time following the meeting there was a considerable
amount of "talking together" about the union question in
the plant. Aratari, the assistant plant manager, testified:
. . after the union organizing drive was started the shop
recommendations did not come up at those meetings , but Respondent's
minutes of one of the meetings warrant the inference that Aratan testified
incorrectly I have not credited his testimony
5 This finding does not apply to the inspection leaders ; they had no
employees working under them
MILFORD FABRICATING CO. 1015
was in complete disarray. There was all kinds of
commotion going on out there. . . . People gathering in
groups, talking, people going from department to depart-
ment talking . . . production was affected by it ... we had
never had anything like this." Members of management
participated extensively in the discussions.
Among those who were active in distributing union
literature and soliciting authorization cards were Larry
Gerou and Dennis Martin. On approximately May 20
Edwards, one of Respondent's plant managers, approached
Gerou at work and accused him of being "involved in some
other activities." When Gerou said he did not know what
Edwards was talking about, the latter replied, "You know
what I'm talking about. You are not allowed to talk about it
on company time , property, or anywhere around here."
Gerou insisted that he could talk about anything, including
union activity, on coffee breaks, lunchtime, or outside, but
he denied "talking about anything on company time."
Saying, "You heard what I said," Edwards walked away.6
Aratari testified that on May 27, after receiving
information that Gerou and Martin were promoting the
Union on company time , he met with Edwards, Aram
Safilian , and Nishon to discuss the subject, and that
Edwards reported he had already spoken to Gerou about
talking about the Union on company time. It was decided
to issue formal warnings to the two men. Aratari had Gerou
and Martin summoned to the machine shop. He also had
Walling, their leader, and one Bill Kish present to witness
what occurred. He handed Gerou and Martin each an
"Employee Warning Form," explaining that they were for
soliciting on company time and that a repetition would
result in dismissal .? Both men denied to Aratari that they
had solicited on company time. Each warning stated the
following under "Remarks":
Soliciting on company time in violation of company
rules. Interfering with production time of other
employees.
Gerou went back to work. He called Walling over and
suggested explaining to Walling dust where the job he was
working on stood since , he told Walling, he expected
Respondent to "pull something and probably get nd of me
today." Walling replied, "You are not going to continue on
soliciting, are you?" Gerou replied that he definitely would,
since he had a right to. Walling walked away.
Aratari, who issued the warnings to Gerou and Martin,
testified that Respondent's rule, in effect since he joined
Respondent, was:
Well, our rule is that we don't allow any unnecessary
talking to any extent. We don't allow the employees to
move from department to department, where they don't
belong. We don't allow anything, in general, that affects
the production that is necessary.
He testified that the rule had not been published in any
form, but that he had learned about it as follows: "If an
employee would stand and talk to another one for a long
6 Edwards' version of the conversation was that he confined his
admonition to working hours, and that he specifically told Gerou that he
had no control over what he did on his lunch hour. I did not find Edwards
a convincing witness Gerou did impress me as eager to tell his story of
what Respondent had done, but at the same time he seemed to be anxious
to adhere to accuracy I have credited Gerou's version of the conversation,
and I also find that he did not solicit signatures when he was supposed to
period of time the foreman would come up and say, `Hey,
break it up.' " He also testified that Respondent had an
unwritten (oral) rule against soliciting funds without
permission.
Nishon testified:
A. The word "solicitation" evidently is not the
correct terminology of our rule in the shop. We run a
very tight operation. We don't allow people to
indiscriminately come into the shop and try to promote
something, or even if they wanted to sell a field day
ticket they could not go into the shop. We would
immediately squelch it. They would have to go in and
see management and get permission before they could
go in the shop ... .
Q. In the history of Milford Fabricating . . . did
the company ever give anyone a warning for soliciting?
A. If you are using the term "soliciting" the way
that I am, we have warned many people for congregat-
ing in groups and talking. We have reprimanded people
for this.
Nishon also testified:
Q. . . . Do you know of any case in the history of
the company where any employee was given a written
warning with respect to-without management's
approval-going around soliciting for various items,
such as flowers or something, or raffle tickets ... ?
A. I would say yes . . . I can't remember the exact
situations. I know that Aram Safilian himself personally
used to be a terror in our shop for anyone congregating
or passing out something in the shop.
You can call any of my old employees and they will
swear that Aram was a terror of Milford, that he would
not allow no one-absolutely no one-to collect in
groups or do anything without management's approval
.... The terror has written slips on this item. I don't
know how far back they go. We might be able to find
something.
Respondent produced two employee warning forms, issued
in February and Aprils to Richard Cole and James Court,
commenting on, respectively, "excessive visiting with other
workers" and "too much time spent talking with other
employees"; but it failed to produce any warnings, except
those to Gerou and Martin, which referred directly,
indirectly, or by implication, to soliciting.
Respondent issued a book of rules to all employees. The
following topics were included in the six pages of the
booklet: probationary period, time clock rules, call-in rule,
hours and pay, tool checks, work clothes, telephone calls,
holiday pay, vacations, insurance coverage, retirement,
workmen's compensation, and general. The rule book
provided that employees were not permitted to use a
company telephone for personal calls, unless authorized by
the office, but otherwise contained no mention of anything
be working
7 Aratari testified similarly but also stated , "I think I said interfering
with production also " I have credited Gerou and Martin and I find that
Aratari's comment on that occasion was as stated in the text and included
no specific reference to interfenng with production.
8 This was prior to the Union's organizing campaign
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
possibly relating to soliciting or to talking, whether on
worktime or otherwise.
For some years Sam Torrosian, a relative of Nishon who
was a nonsupervisory employee with miscellaneous duties,
conducted a weekly pool based on the numbers on the
employees' paychecks, which Respondent knew about and
tolerated .9 In addition, employees from time to time made
collections to assist or send flowers to fellow employees, but
only after receiving permission from Respondent.
Concluding Findings as to the No-Solicitation Rule
Respondent emphasized at the hearing and in its brief
that the complaint does not allege the discriminatory
application of an established rule, but the institution of a
new discriminatory rule. In its effort to prove the existence
of a longstanding "established rule" Respondent adduced
no evidence of anything that could be called a rule, but
merely that it made an effort to limit the amount of time
lost in conversation. However, the Gerou and Martin
warning slips expressly referred to a rule; and the natural
reading of the slips was that the rule violated was a rule
against soliciting. The interference with production time
referred to was either an additional offense or a qualifica-
tion of the rule against soliciting Whatever ambiguity may
be present on the face of the warning slips was resolved by
Aratan's statement when issuing them that they were for
"soliciting." The fact that employees customarily requested
permission to collect money for flowers for fellow
employees does not prove that there was a rule to that
effect; there is no evidence that any such rule was ever
announced. Moreover, Torrosian regularly solicited for his
check pool, and I have not credited the testimony that he
sought or obtained permission.
In view of the foregoing I find that prior to the union
organizing drive in May Respondent had no rule against
soliciting, and that in May Respondent did establish such a
rule and promulgated it through the issuance of the Gerou
and Martin warning slips. In view of its timing, the fact that
Torrosian was allowed to solicit on worktime, and that
Respondent allowed and participated in discussion of the
union question on worktime, I further find the rule was
instituted for the specific purpose of hindering union
organization and was violative of Section 8(a)(1) of the Act.
Concluding Findings as to the Warnings
I have credited Gerou's testimony that he confined his
soliciting on behalf of the Union to nonwork time and that
he never solicited on company time. The issuance of the
warning slip to him was therefore plainly violative of the
Act.
As Martin did not deny soliciting during worktime, it is
necessary to examine carefully the question of whether
Respondent warned him because his activities interfered
with production or because he was engaged in a protected
activity disapproved by Respondent. See Greentree Elec-
9 Nishon first testified that the check pool had been going on since
Respondent's business had started-the record shows that this was 20 years
before-and had grown up with the Company He stated at one point that
management did not like the pool and "tried to discourage it," but he then
admitted that Respondent had done nothing to stop it Finally he said that
permission had been given for the pool 10 years before 1 have not credited
Ironies Corporation, 176 NLRB No.126, enfd. 432 F.2d 1011
(C.A.9). I have already alluded to Respondent's unsuccess-
ful effort to prove the existence of a previously existing
"rule," and the fact that its evidence tended, at best, to show
an effort to discourage loss of time through conversation.
Even this evidence was extravagantly exaggerated. Respon-
dent was not engaged in a mass production operation; the
employees made individual items for prototypes, producing
a limited number of each. They worked long hours-65 to
75 hours week after week. It is therefore not surprising that
Respondent's policy was to run quite the opposite of the
"tight ship" it claimed at the hearing. The very fact that
Respondent's chief executive officer had to act "the terror
of Milford" tended to show that the plant managers and
other supervisors were running no "tight ship." Cole and
Court's warnings refer to "excessive" visiting and "too
much" time spent talking, implying that visiting and talking
to a reasonable extent were expected and permitted.
Finally, Respondent deliberately loosened its standards at
the May 15 meeting by Nishon's inviting the employees "to
talk together and decide what you together as a group are in
favor of." As employees had always indulged in some
degree of talk on worktime and Nishon's invitation
contained no qualification, the reasonable meaning was
that Respondent did not expect the employees to limit their
discussion to nonworktime. Respondent's policy of allow-
ing such discussion was reflected in the evidence that
leaders and managers-Cedar, Edwards, Marks, Walling,
and Boyajian-10 engaged in much discussion of unioniza-
tion with employees. In view of the extent to which such
discussion took place, with no evidence of the issuance of
warning slips to others, I am compelled to infer that it was
not his use of worktime but the fact that Martin engaged in
solicitation that brought about his discipline. The issuance
of an identical warning to Gerou, who confined his
soliciting to worktime, strengthens this inference.
The fact that Respondent invited employees to "talk
together [about the Union ] and decide what you together as
a group are in favor of," and in fact tolerated a considerable
amount of discussion of the union question does not mean
that Respondent could not put a stop to such activity on
worktime when matters got out of hand. Respondent's
actions against Gerou and Martin, however, were not taken
for such a purpose. Respondent never withdrew or qualified
its invitation to the employees to discuss the union question
freely, so long as it did not include solicitation, nor did it
issue any kind of general admonition against carrying such
discussion too far. There is no evidence that soliciting
caused more interference with production than the various
discussions taking place; and in the light of all the evidence,
especially Aratari's description,ii there is no evidence
which would warrant the assumption that Gerou or
Martin's activities of any sort were outstanding from the
point of view of worktime lost. What was outstanding was
that these two men were engaged in union solicitation, and
that is why they were given the employee warning forms.
this testimony
10 Boyajian became involved in a long conversation with his friend,
James Clinton. While James Clinton was a supervisor , the record shows
that the conversation interfered with production.
11 While Aratan may have been exaggerating, it is apparent that the
amount of talk tolerated at that time by Respondent was considerable
MILFORD FABRICATING CO. 1017
I find that by issuing the written warnings to Martin and
Gerou Respondent threatened them with discharge unless
they refrained from assisting or supporting the UAW, and
restrained and coerced employees in the exercise of their
rights under Section 7 of the Act, thereby violating Section
8(a)(1) of the Act. I further find that Respondent, by issuing
said warning forms, imposed discriminatory conditions of
employment upon Martin and Gerou, thereby discouraging
membership in the Union in violation of Section 8(a)(3) of
the Act.
Unlike the employee warning forms, Edwards' oral
warning to Gerou contained no express reference to
solicitation . He accused Gerou of being engaged in "some
other activities," told him that he was not allowed "to talk
about it," and warned, "You heard what I said." Such a
warning implies ultimate discharge if not heeded. I have
found that Edwards' prohibition extended to Gerou's
nonworktime, and to all parts of Respondent's property. As
already indicated, even if Edwards' prohibition had been
limited to worktime, it could not have meant mere
discussion of the Union; that had been invited by
Respondent and it was going on all over the place.
Edwards' warning was aimed at more than mere talk; it was
aimed at "some other activities," plainly, solicitation for the
Union. I therefore find that Edwards' oral warning to
Gerou was not given because of loss of worktime but
because he was engaged specifically in union solicitation in
violation of the rule which I have found was established for
an illegal purpose. I find that by this warning to Gerou
Respondent threatened him with discharge unless he
refrained from giving assistance or support to the UAW,
and restrained and coerced employees in violation of
Section 8(a)(1) of the Act.
C. The Alleged Discrimination Against Dana White
White was employed by Respondent on April 13. He
worked in the maintenance department, at first under
acting leader William Marks. Wagg, the department
manager , commended White's work, and upon completion
of 30 days' employment about May 13 he received a 10-cent
pay increase. Nishon testified, "Mr. White probably could
have had a lot of potential with the company." Marks was
opposed to the Union and tacked up a supposedly
humorous off-color sign expressing his view.12 He had
several discussions with White about the Union, and he
knew that White favored it. He advised White that since he
felt that way, he would be better off in a union shop.
On May 22 White was transferred to the night shift where
he worked under Pemberton, another leader. About June 1
White did not report for work.13 However, he called
beforehand to say he would not be in. About June 4 he was
working with Pemberton, using a 4-foot pipe wrench, when
Pemberton became ill and had to leave. He told White that
he might as well go home, too, since he could not handle the
big wrench alone . The two men left together. Pemberton
informed Renzo Colaianni, a leader or acting leader, who
was in charge of the night shift.14
On June 5 Wagg summoned White to the office and
discharged him. Asked why, Wagg stated that since his 30-
day raise White's attitude had changed. White pleaded that
he had enjoyed the job and learned things, and he asked if
he could change Wagg's mind. Wagg said no; and he added
that White should not have left work with Pemberton
without Wagg's permission. Nothing was said about
White's absence on June 1. A week later White returned
and obtained his final paycheck. Marks accompanied him
to his car. He said, "I never did anything to hurt you, Dan, I
tried to save your job but you were on the wrong side. As I
said before my best advice to you is to go to a union shop."
Wagg testified that White showed disappointment with
the amount of his 30-day increase and thereafter was less
diligent and became critical of the way things were done.
His decision to discharge White, he testified, was triggered
by the two incidents referred to; namely, White's leaving
early and his 1-day absence in June without giving a reason.
He testified that White should not have left early without
calling him.
Concluding Findings as to White
Shortly before May 14, the day on which Respondent
learned of the attempt to organize the employees, White
was granted his initial pay increase. His immediate
supervisor, Marks, learned that he favored the Union, and I
infer that he informed Wagg, his superior; I do not credit
Wagg's denial. When Marks heard that Respondent was
going to discharge White, whom he knew to be a competent
worker, he urged his superiors not to do so, but they refused
to follow his recommendation. The reason they insisted on
discharging White was that he was "on the wrong side"; i.e.,
in favor of the Union.
Against these facts Respondent offered Wagg's testimony
about a change in attitude, the manifestation of which
Wagg particularized with but two instances-White's
failure to give a reason for his absence one night in June,
and his leaving early on June 4 without Wagg's permission.
White had complied with Respondent's published rules,
which required advance notice of an absence, but not a
reason ; and White was never asked the reason . As to the
instance of his leaving early, I found Wagg evasive and less
than accurate in his testimony. He ignored White's
testimony that the individual with whom he was working
that night and who suggested that he leave was a leader,
Pemberton, and that Colaianni was in charge of the shift.
Wagg referred only to "the person" with whom White was
working. In view of the established fact that leaders did
have authority to allow employees to go home early,
counsel for Respondent pressed Wagg, who thereupon
stated unequivocally that no leader was working that night.
Respondent could have disproved White's testimony by the
simple device of producing work records, such as
Pemberton's timecard, and Colaianni' s, also. Instead it
relied on the testimony of Wagg, whom I did not find as
convincing a witness as White. I do not credit Wagg's
testimony that he discharged White because of a change of
12 Marks denied this but I found him not a credible witness close somewhere around" May 15, but he was not sure whether it was
13 He had previously been absent one day because of a hearing on his before or after May 15 Aratan testified that Colaianni became a leader,
driver 's license "to the best of my memory, about a month ago"
14 Safilian testified that Colalanm became a leader at a time "pretty
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attitude with respect to his job. I have fully considered the
fact that Respondent did not discharge Gerou or Martin,
who solicited on behalf of the Union, whereas White
merely expressed himself in its favor. This can be explained
by the fact that an employer might feel it less difficult to
justify the pretextual discharge of a competent probationer
than of an employee with seniority.
I find that Respondent discharged White because he
expressed himself in favor of the Union and in order to
discourage membership in the Union. I further find that
Respondent thereby violated Section 8(a)(1) and (3) of the
Act.
D. The Alleged Discrimination Against Charles
Clinton
1. The hiring of Charles Clinton
Respondent's business consisted primarily, if not entirely,
of fabricating prototype sheet metal parts for Ford Motor
Company. In recent years its business grew rapidly; an
official testified that in the past 3-1/2 to 4 years
Respondent more than doubled the number of its
employees as well as its floor space. The employees worked
long hours, many frequently putting in as much as 14 hours
per day during the week, 10 hours on Saturday, and 8 hours
on Sunday. Respondent advertised for help frequently,
usually gearing the advertisements to attracting class A
mechanics. Respondent ran such advertisements even
during slow periods, since qualified class A mechanics were
hard to find and were always a welcome addition to its
work force. On February 24 Respondent instituted a
second shift in four departments; namely, press, plaster, die
barbering, and material control and maintenance. Regular
hours for both shifts were 11 daily, 10 on Saturday, and 8
on such Sundays as were worked, and employees who chose
to do so could often work longer hours.
Much of Respondent's work required the construction of
zinc-alloy dies for stamping out the prototype sheet metal
parts. Operations in such cases started with the building of
plaster models. Respondent was in frequent contact with
another firm, Imperial Design and Manufacturing Compa-
ny (Imperial), which designed parts for Ford Motor
Company (Ford). Imperial's operations also included the
building of plaster models.
Charles Clinton, then 21 years of age, started to work for
Imperial on May 4, 1965, doing plaster work. In July 1965
he was temporarily laid off and on July 18 he was taken on
by Respondent as a part-time employee. This was
apparently expected to be temporary employment; his 1965
employment application to Respondent omitted most of
the information called for by the form. On September 14,
1965, Respondent removed him and another part-time
employee from the payroll for the stated reason that "their
services will not be needed," and he returned to his job at
Imperial. He had worked a total of 87 hours for
Respondent.
In April 1970 Charles Clinton, then a "plaster mold
builder," was again laid off by Imperial. He called his
brother, James , a leader in Respondent's plaster shop, and
asked him to speak to Boyajian, Respondent' s plant
manager, about ajob with Respondent. James recommend-
ed his brother, who was then interviewed by Boyajian.
Respondent's appraisal of Charles-presumably by
Boyalian-read, "Should become a Class A mech. in less
than a year." In the course of the hiring interview Boyajian
remarked, "Chuck, if you had stayed here when you were
here before you would have been making over $5 an hour
now." Mechanics' top pay was $5.10 per hour. Charles was
taken on at $3.90 per hour, as compared with $4.68 he had
been earning at Imperial. Boyajian explained to him that he
could not be started at a higher rate because of other
employees who had been there a year or more, but he
promised Charles an increase after 30 days and said that
"in the day period" 15 he would probably come up to what
he had been getting at Imperial. Boyajian asked Charles
whether he "was going to stay with the Company this time
and not quit." Charles replied that if the increases indicated
by Boyajian materialized, he would probably stay. Boyajian
assured Charles that the work load was "pretty heavy" and
that Respondent needed men who knew "the plaster
business."
Charles started work on April 13. His attendance was
substantially perfect and , as a result of the long hours, his
earnings averaged $333.52 per week. He was complimented
for his work by Cedar, the manager of the plaster, plastic,
and foundry departments.
2. Respondent's reaction to Charles Clinton's
union activities
On May 12 Charles Clinton brought a supply of UAW
cards to Respondent's plant and started to distribute them
among the employees. On May 14, leaving work, he
encountered one Neeno on the parking lot and requested
him to sign a card. Neeno did so and returned the card to
Charles, who then drove away with his brother, James. That
evening Boyajian called James Clinton and asked him if he
knew that Charles had been getting cards signed and passed
out round the shop, and he also asked if he knew that
Charles had threatened Neeno in the parking lot and
compelled him to sign a card.16 James said that he did not
know that and would call his brother. The next morning,
May 15, Cedar ordered James to take an employee off a job
with Charles Clinton and to have Charles do thejob alone.
He said, "I want him talking to no one or trying to solicit no
union during working hours." James did as he was told and
ordered Charles not to speak to anyone about the Union
during working hours. Cedar approached Charles, said he
knew he was trying to organize the plant, and ordered him
to stay on his job and not talk to anyone. Charles admitted
passing out cards but assured Cedar that he would stay on
the job and not speak to anyone "during company time."
The two had a further discussion about the Union, Cedar
saying that he did not want to see the Union come in.
Subsequently Cedar, contrary to past practice, followed
15 Employees were given one evaluation after 30 days, then three 16 I have credited Charles Clinton's testimony as to the nature of his
evaluations at 90-day intervals After the first year they were evaluated encounter with Neeno, including his denial that he threatened Neeno in
every 120 days Boyapan presumably referred to Clinton's second any way Neeno did not testify
evaluation, which would take place about 4 months after he started
MILFORD FABRICATING CO.
Charles whenever the latter went to the coffee machine.
Employees had always been free to get themselves coffee
whenever they wished, without comment by management.
During the following week Cedar had a number of
conversations with Charles about the Union. Boyajian and
Cedar both told James that he should talk his brother out of
his union activity; and on May 21 Cedar told James that "if
he had a boy that come in there and started something like
that he would kick his ass out."
At the May 15 meeting Respondent specifically identified
Charles Clinton as the person who was organizing for the
Union. Respondent's text of the speech included the
following:
By the way, I'd like to digress for a minute and point out
something that just happened in this shop recently. An
employee, one who has been with us only 31 days, has
brought in literature concerning the unionizing of our
shop. We don't question the right of individuals to
group together for their common good . . . . First,
however, I'd like you to know that this man is being
paid by the union to organize you into that union.
Though he was laid off by his previous employer, he has
seniority there and will return to that employment in the
near future . I ask you, now, if this man truly represents
you?
Safilian described Clinton as a "bounty hunter." Several
employees so testified and Safilian himself testified that at
the meeting he stated that he had been informed that the
UAW was paying Charles Clinton $75 a week for him to
organize the shop. He admitted using the term bounty
hunter but thought that he had done so after the meeting.
At one point during the meeting Boyalian interrupted an
employee who was making a statement about the Union,
pointed to Charles Clinton, and said, "There is the man to
see for information about the Union." I have credited
Charles Clinton's denial that he was paid by the UAW, and
I have not credited Nishon's testimony that James Clinton
told him that the UAW was paying Charles $70 per week to
organize the plant. James Clinton impressed me favorably
as to credibility and I have credited his version of his
conversation with Nishon.i7
3. Charles Clinton' s discharge
During the meeting on May 15 Respondent placed much
emphasis upon its history and/or policy of not laying
employees off. The following are excerpts from Respon-
dent 's text:
Now men , in reference to job security , let me point out
that we are always busy here . Milford does , in fact, have
it James Clinton was trying to track down the source of a rumor that
Charles was "trying to collect some bounty money," and he asked Nishon
about it Nishon professed ignorance and commented that James was his
"brother's keeper" and should be able to "keep him from talking union in
the shop "
is The testimony of General Counsel's witnesses as to what was said at
the meeting on the subjects of layoffs, apprenticeship , and overtime was,
like Respondent' s admittedly incomplete text, to the general effect that
predictions were made as to what the UAW might require in those areas
Union objection to high apprenticeship ratios and "flexibility"-here,
interdepartmental transfer-which directly affects staffing and, conse-
quently, possible overtime and layoff problems, is sufficiently common and
1019
a heavy work load and a constant need for qualified
men to meet this work load and our delivery dates.. . .
I don't know if you younger men are aware of
this, but we are the only prototype shop in the history of
the automotive industry who have never had any lay-
offs. Even during the lean years we keep our men, and I
am sure you know our competitors, and even the
automobile industry itself, has not been able to
accomplish this. And these companies have unions!
This seems to indicate that we are better able than they
are to keep our men at work. . . . We are a flexible
company. We take on all the work we can which means
new jobs and more opportunity for all of you to share in
the profits of a growing company.. . . In fact we rotate
men when times are slow in one department to another
so that we can get the job out and keep our men at work
instead of laying them off. Could a union do more for
you? You know the history of Plaster shops in other
companies. Did they keep their men? We have at
Milford year in and year out ... .
And what can a union give you? Can they promise
job security. No! If a man isn't needed he is laid-
off-and again I say Milford has not laid-off a man in
the history of this company.. . .18
On Tuesday, May 19, Respondent reduced the schedule
for the plaster department from between 60 and 70 hours to
48 hours per week. Round that time, also, the night shift
was eliminated.19 On Friday, May 22, Respondent
discharged Charles Clinton and five other probationary
employees, and temporarily laid off seven employees. All
13 of these employees had worked on tooling operations, 8
in the plaster department and 5 in the plastic department or
the foundry. On Saturday, May 23, Respondent posted a
notice for the plaster department increasing the schedule
for some jobs to 10 hours and for others to 12 hours daily.
James Clinton asked Cedar to explain the sudden shifts.
Cedar replied that because of "certain hot jobs" overtime
was required. Nishon testified, referring to May 22: "The
plaster department was still busy, as far as the work that
they had for the next 2 weeks." James Clinton, who
continued to work for Respondent until his resignation on
July 10, testified that from May 19 to July 10 the men in the
plaster department worked an average of 60 hours per
week, and that when he left "work was still good." Cedar
testified that some 10 days or 2 weeks after the layoff some
surfaces 20 "finally were shipped into the shop." On June 6
Respondent recalled the seven temporarily laid-off employ-
ees, but not all returned. None of the terminated
probationers were ever recalled.
well-known to make an employer's prediction of such results appear to
employees to be a prediction of consequences of unionization outside his
control , rather than an implied threat that he will take retaliatory action
solely on his own initiative for reasons unrelated to economic necessities
and known only to himself Cf N.LR B v Gissel Packing Co, 395 U.S
590, 618 1 shall for these reasons recommend dismissal of subparagraphs
(a), (b), and (c) of paragraph 9 of the complaint
is Night-shift assignments were alternated among all employees in the
affected departments
20 As described below , plaster work could not be started on receipt of a
customer 's order ; a "surface" was needed . See fn . 24, below
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the end of the day on May 22 Charles and Gary
Clinton21 approached Cedar and Edwards and the four
went together to check Charles' tools. They discussed
Charles' discharge and Cedar remarked, "Well if it hadn't
been for this other stuff that you would have been good for
the company here." He repeated the remark later in the
lockerroom, with Boyajian and Edwards present.22 The
group walked out to Charles Clinton's car. Referring to
Safilian's comment on May 15 that he noticed that many
Milford employees were driving new cars, Charles Clinton
pointed out that his car was new also. Either Cedar or
Boyajian replied, "maybe that's your payoff from the union
for organizing here."
Respondent placed in Charles Clinton's personnel file an
"Employee Warning Form" dated May 22 emphasizing
that his termination was permanent and containing the
following "remarks": "Charles lost a lot of time on jobs
because he spent too much time in idle talk."
Respondent's officials testified that the reason Charles
Clinton was terminated was primarily a stopping or slowing
up of orders, resulting in lack of sufficient work for the
three toolmaking departments; namely, plaster, plastic, and
foundry. At the same time, they testified, construction work
in progress in Respondent's buildings reduced the amount
of room available in the various departments. Accordingly,
while the sheet metal departments were extremely busy, or
even for the very reason that they were so busy, their work
space was too cramped to permit the temporary assignment
there of employees from the toolmaking departments. They
testified that even before Safilian's May 15 speech they had
had "an inkling" that there might have to be a layoff, and
that the six top officials had been discussing such a
possibility among themselves. The minutes of the meetings
of these six officials, regularly held every week, contained
no reference to the impending layoff on May 22. The
minute book, kept in looseleaf form, contained minutes for
meetings on May 13 and 27, but none for any meeting
between those dates.23 Respondent's officials testified that
the regular meeting was not held that week because of a
retirement party, and that the discussions of the layoff took
21 Gary Clinton was among those temporarily laid off
22 Cedar's testimony at the hearing contained no direct denial of this
incident, although he did state on cross-examination that he told Charles
Clinton that he was sorry there was no business and that "things" had
fallen off so drastically since the night before . He denied the incident in his
investigatory affidavit , where he also stated , however, with reference to an
occasion when he was working with Charles shortly prior to his
termination
I told him in our general discussion about the Union I said that it was
too bad that he was involved in this because I felt that there could
have been a better relationship because I enjoyed working with him
Charles Clinton said that he was sorry, that he knew that things
could have been better if he had not been the instrument behind the
union I told him that undoubtedly he would be a regular employee
and that the relationship between the two of us could have been better
because I enjoyed working with him By regular employee, I meant
like any other employee I had gotten the feeling that Clinton felt we
were picking on him and I was just telling him that he was a regular
good guy I did not mean that by regular he could have obtained
seniority
Boyajian did not testify about the incident either The only evidence
offered by Respondent at the hearing to contradict Charles Clinton
about Cedar's remark on that occasion was that of Edwards, who denied
making or hearing the statement at the toolbox I have credited Charles
place at emergency or "impromptu " meetings, at which no
minutes were kept.
Cedar testified that on May 19, the day the reduced
schedule for the plaster department was posted , he went
over the tooling list with Edwards and pointed out that
there were not many jobs available for immediate work.
Boyajian testified that he went over the tooling list with
Cedar before May 22 and that immediately available work
was running low at that time.24
Edwards testified that an additional reason for discharg-
ing Clinton was a certain moral obligation to Imperial
arising from the following : 25 In April 1970, knowing from
his visits to Imperial that work was slowing up there, he
spoke to the Imperial foreman26 whom he had got to know
more or less personally , and asked him to let him know if,
because of the slowing up of work, Imperial was going to let
some men go who were "real good workers," whom
Respondent could count on. The foreman replied , Edwards
testified , that he might possibly be able to send Respondent
some good people , and Edwards testified that he promised
not to "steal" any help . Only two such "real good workers"
went to Respondent from Imperial at that time ; namely,
Charles Clinton and A. Huraibi. Asked whether Respon-
dent considered them permanent or temporary employees,
Edwards testified , "I felt that I had a moral obligation to
Imperial Design that we would not keep these people."
Edwards testified he discussed Respondent 's "moral
obligation" at the meeting of Respondent 's officials, and
that he also said there that he knew right from the start that
Clinton and Huraibi were to be with Respondent
temporarily.
Basso , subpenaed by the General Counsel , testified: "It is
a practice not to draft each other's men , at the high peak of
programs for specially skilled work . In other words, all
companies need their own men and if you know the people
you don 't try to take their men away from them." He
testified , however , that he knew of no agreement,
arrangement, or mutual obligation with Respondent about
hiring each other's employees , and specifically denied
having had any conversation with Edwards or anyone else
Clinton's testimony.
23 Edwards testified that he mentioned something about the Union at a
weekly meeting at which minutes were taken He did not recall the date.
The first meeting following Respondent 's learning about the Union would
normally have taken place on May 20.
24 Respondent adduced no documentation indicating the amount of
work then available in the plaster department . It did show the number of
purchase orders for work requiring plaster models for tools which were
received each month in 1969 and 1970. However, Nishon testified that no
actual work could be done on the basis of a purchase order, other than
"paper work." Production work could not be done until after Respondent
received the "surface" for the job from Ford; i.e., a model of some kind
and a telegram giving permission to pour the dies. This did not happen
until weeks or months later In addition , Boyajian testified that the number
of purchase orders did not indicate the volume of toolwork , since a
purchase order could call for a single tool or as many as 20 tools.
21 Nishon testified that, while Charles Clinton was discharged solely
because of a light workload in the plaster department , he was not recalled
because of the moral obligation arising from Edwards ' conversations with
Imperial described in the text.
26 John Basso was foreman over all shop employees at Imperial. The
only other production employees were designers.
MILFORD FABRICATING CO.
from Respondent about sending Imperial employees
temporarily to Respondent.27
Charles Clinton's employment application to Respondent
included the following comment by a representative of
Respondent, presumably Boyajian, who interviewed him at
hiring: "Is looking for a job with steady work-no layoffs."
As already noted, Boyajian specifically asked Clinton
during his employment interview if he was going to remain
with Respondent this time; and the application also
included the comment, "Should become a Class-A Mech. in
less than a year."
Concluding Findings as to Charles Clinton's
Discharge
Respondent met Clinton's union activities with a
campaign of unfounded accusations and other actions
calculated to discourage him and other employees from
engaging in union activities . Boyajian falsely accused him
of threatening Neeno; Cedar isolated him at work and
dogged his steps whenever, as was normally permitted, he
left his bench. At the meeting Respondent sought to
disgrace him before all his fellow employees by denouncing
him, with no justification whatsoever , as a self-seeking
bounty hunter who would desert them as soon as he had
collected his bounty. The day before his discharge Cedar in
effect suggested to James Clinton that he administer a
beating to his younger brother for having "started
something like that." And when Charles Clinton was
leaving the plant after being discharged, one of Respon-
dent's officials suggested that his new car might be the
Union's "payoff."
In the face of the above evidence and of evidence in the
record that Clinton was an able mechanic, Respondent
claimed that Clinton's discharge was brought about by a
lack of immediately available work in the plaster
department.28 The only evidence offered to this effect was
testimony that the possibility of a layoff was under
discussion in meetings of Respondent 's six top officials
since shortly prior to May 15, and Cedar and Boyajian's
testimony that they had gone over tooling lists and found
that plaster work was running low.29 However, no minutes
were produced of any meeting of Respondent's six top
officials discussing the problem. Those meetings, with
minutes being taken, were held, according to Nishon, once
a week "regardless," and "with rather rigid regularity,"
except that at some seasons the meeting day might be
changed from Tuesday to Wednesday or Thursday.
Respondent's explanation for skipping a meeting during
that crucial week, which saw the appearance of the UAW
and Respondent's sudden reversal of its no-layoff policy
27 In May Basso and his superior , a vice president of Imperial, called in
the UAW shop steward at Imperial and requested permission to recall
Clinton from Milford and rehire him out of seniority for a few days after
which he would be let go The record does not show their reason . The shop
steward insisted upon adhering to the contract and therefore refused the
request . The shop steward testified that the purpose had something to do
with Clinton 's activities at Respondent 's plant However, in the absence of
corroboration I cannot accept this testimony as to the purpose of the
request as accurate.
29 Respondent 's explanation of why the sheet -metal departments were
busy at the same time was plausible and has been credited
29 As already stated, the charts which Respondent prepared for the
1021
was unconvincing and has not been credited. Moreover,
other evidence about the amount of plaster work available
contradicted Cedar and Boyalian. First, James Clinton
testified that the plaster department was still busy on May
22 and until he left in July 30 Second, at the May 15 meeting
Respondent emphasized its no-layoff policy, with specific
emphasis on "plaster shops." Conceding that employers
and unions use hyperbolic arguments, as urged by
Respondent, it is difficult to credit testimony that
businessmen would make such strong representations to
their employees about a no-layoff policy while they were so
actively considering an immediately pending layoff. Third,
at least so far as Charles Clinton was concerned, the
reliability of Respondent's evidence on this issue is clouded
by its testimony that at the meetings of the top six officials
two other factors allegedly affecting him were discussed;
namely, his status as a temporary employee and Respon-
dent's "moral obligation" not to keep him. Edwards'
testimony that he requested Imperial to send some "real
good workers," and that he promised not to "steal" them
was effectively contradicted by Basso and by Boyajian's
asking Clinton at the hiring interview whether he would
stay this time; and the claim that Clinton came as a
temporary employee was destroyed by Boyalian's notation
that Clinton, who had been laid off by Imperial, was
"looking for a job with steady work-no layoffs," and
would make a class A mechanic in less than a year. I do not
credit the testimony that Respondent's officials discussed
any temporary status or "moral obligation" with regard to
Clinton. I find that there was a substantial amount of work
immediately available in the plaster department on May 22
and for some time thereafter, and that whatever reduction
of work might have occurred was not great enough to call
for Charles Clinton's discharge.
There remains for consideration the question whether
any interference must be drawn from the fact that
Respondent also permanently laid off five other probation-
ers and temporarily laid off seven employees. If Respon-
dent's aim was to discourage union membership, that aim
could have been attained by reversal of its no-layoff policy
at least as effectively as by discrimination against the
outstanding union leader. It would therefore be unsound to
reason that a conclusion of discrimination against Charles
Clinton cannot be made without a finding that Respon-
dent's action against the other 12 employees was taken
solely to reach him. While the credited evidence does not
negate such a finding, it is unnecessary to pass in this
proceeding upon Respondent's motivation with respect to
the other 12 employees; only Charles Clinton's discharge is
at issue.31 It is, however, noted that so far as the seven who
were temporarily laid off were concerned, a period of only 2
hearing showing purchase orders were i rrelevant to this question so far as
concerned immediately available work. See In 24, above
30 Nishon, Respondent 's vice president , refernng to May 22, testified,
"The plaster department was still busy, as far as the work that they had for
the next two weeks " According to Respondent more plaster work started
to come in early in June , and all the temporarily laid-off employees were
recalled. Not all returned however. Those permanently laid off were not
recalled Nishon explained this, sofar as Clinton was concerned, with the
account of a "moral obligation" to Imperial which I have not credited.
31 Respondent's contention that the action against the other 12 "was
recognized as perfectly legitimate and legal" is unfounded . Counsel for the
General Counsel, while indicating that he thought that the action taken
(Continued)
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weeks was involved. As to the five probationers, the record
is devoid of evidence as to whether they had turned out to
be the kind of employees Respondent desired or whether
they were interested in further employment with Respon-
dent. On the other hand, the evidence is persuasive that
Charles Clinton was an able mechanic, the kind that
Respondent was seeking in good times and bad. Edwards,
by testifying, albeit without factual foundation, that
Clinton had been sent by Imperial as a "real good worker"
lent support to this conclusion. Moreover, the record
establishes that Cedar enjoyed working with him and
praised his work; and the form filled out at his discharge
contained no unfavorable comments on the quality of his
work. Finally, Cedar said to him, "Well, if it hadn't been for
this other stuff . . . you would have been good for the
Company here." Plainly, in Respondent's estimation
Charles Clinton was not in the same category as any
ordinary probationer.
As I have not credited the testimony of Respondent's
officials explaining Clinton's discharge, and on the basis of
my findings that he was a good mechanic, such as
Respondent was always seeking, who would have been
"good for the Company" but for his union activities, that
there was a substantial amount of work in the plaster
department, that Respondent was hostile to the UAW, and
especially hostile to Clinton "for this other stuff," i.e., for
bringing the UAW to the employees, I find that Respon-
dent discharged Clinton because of his union activities,
thereby violating Section 8(a)(1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
I find that the activities of Respondent set forth above in
section III, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
In order to effectuate the policies of the Act, I find that it
is necessary that Respondent be ordered to cease and desist
from the unfair labor practices found and from like or
related invasions of the employees ' Section 7 rights, and to
take certain affirmative action.
The presence of adverse notations and warnings in the
personnel records of Dennis Martin and Larry Gerou
constitutes a constant threat that they may suffer some
disadvantage in the future from those warnings or
notations . In order to ensure that this does not occur, and
to give them and other employees assurance that it will not
occur , I am recommending that Respondent be required to
expunge from its records the copies of the warning notices
against those other 12 employees was discriminatory, stated that he was
"prosecuting" only the complaint, which did not contain such an
allegation See Eugene Luhr and Co, 187 NLRB No 110, In. 1
32 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
issued , both oral and written, and of all notations with
respect thereto.
I am also recommending that Respondent reinstate
Charles Clinton and Dana Robert White to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
and other rights and privileges, and that they be made
whole for any loss of earnings suffered by reason of the
discrimination against them. The amount of backpay in
each case shall be a sum of money equal to the amount that
he normally would have earned as wages from the date of
the discrimination against him to the date of his
reinstatement or offer of reinstatement , less his net earnings
during said period, the backpay to be computed on a
quarterly basis in the manner established by the Board in F.
W. Woolworth Company, 90 NLRB 289, 291-294; and it
shall include interest at the rate of 6 percent per annum, to
be computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716. Respondent shall also
preserve and, upon request, make available to the Board or
its agents , for examination and/or copying, payroll and
other records necessary for computation of the backpay.
Upon the basis of the foregoing findings of fact and of
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Milford Fabricating Company, Inc., is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Respondent is, and at all times material has been, an
employer within the meaning of Section 2(2) of the Act.
3. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW),
is a labor organization within the meaning of Section 2(5) of
the Act.
4. By discriminatorily discharging Charles Dean Clin-
ton and Dana Robert White, and by issuing written
warnings to Larry Gerou and Dennis Martin, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
5. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
6. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 32
ORDER
Respondent, Milford Fabricating Company, Inc., its
officers, agents , successors , and assigns , shall:
1. Cease and desist from:
findings, conclusions , and Recommended Order herein shall, as provided
in Section 102.48 of the Rules and Regulations , automatically become the
findings, conclusions, decision, and order of the Board , and all objections
thereto shall be deemed waived for all purposes
MILFORD FABRICATING CO. 1023
(a) Promulgating, maintaining, or enforcing any rule or
policy prohibiting solicitation or other union activities on
worktime while permitting other types of noncompany
activities during worktime, where the purpose is to hinder
or interfere with union organization.
(b) Issuing warnings, whether written or oral, or
otherwise threatening employees with discharge or other
reprisals, for exercising rights under Section 7 of the Act,
where that is done under color of a rule promulgated or
invoked for the purpose of restraining or coercing
employees in the exercise of those rights.
(c) Discouraging membership in International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), or any other labor
organization, by discharging employees or issuing warnings
to employees because they engage in union activities, or by
discriminating against them in any other manner in regard
to their hire, tenure of employment, or any term or
condition of employment.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed under Section 7 of the National Labor
Relations Act, as amended.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer immediate and full reinstatement to Charles
Dean Clinton and Dana Robert White to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges.
(b) Make Charles Dean Clinton and Dana Robert White
whole for any loss of earnings they may have suffered as a
result of the discrimination against them, in the manner
described in section V of this Decision entitled "The
Remedy."
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records, timecards,
permission-to-pour telegrams, personnel records and
reports, and all other data necessary to analyze and
compute the backpay required by this Order.
(d) Notify Charles Dean Clinton and Dana Robert
White, if presently serving in the Armed Forces of the
United States, of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(e) Expunge from the personnel records of Larry Gerou
and Dennis Martin and from all other records of
Respondent the warnings issued to them on May 27, 1970,
and all notations referring thereto or to the oral warning
issued to Larry Gerou on May 20, 1970.
(f) Post in its office and plant in Detroit, Michigan, copies
of the notice attached hereto marked "Appendix."33 Copies
of the notice, on forms provided by the Regional Director
for Region 7, shall, after being duly signed by a
representative of Respondent, be posted 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 to ensure that said notices
are not altered, defaced, or covered by any other material.
(g) Notify said Regional Director for Region 7, in wnting,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith,34
IT IS FURTHER ORDERED that the allegations in the
complaint that Respondent threatened its employees with
loss of overtime and layoff practices, and with layoffs and
adverse changes in the apprentice program, be dismissed.
33 In the event that the Board 's Order is enforced by a judgment of a 34 In the event that this Recommended Order is adopted by the Board
United States Court of Appeals, the words in the notice reading "Posted by after exceptions have been filed, this provision shall be modified to read:
Order of the National Labor Relations Board" shall be changed to read "Notify said Regional Director for Region 7, in wnting, within 20 days
"Posted Pursuant to a Judgment of the United States Court of Appeals from the date of this Order, what steps the Respondent has taken to
Enforcing an Order of the National Labor Relations Board." comply herewith."