Motor City Electric Co.

National Labor Relations Board - Board Decisions

Jun 25, 1973

204 N.L.R.B. 460 (N.L.R.B. 1973)

460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Motor City Electric Company and Robert D. McDan-
iel. Cases 7-CA-8836 and 7-CA-9650
June 25, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On February 26, 1973, Administrative Law Judge
Lowell Goerlich issued the attached Decision in this
proceeding. Thereafter, the General Counsel and Re-
spondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Motor City Electric Company, Detroit,
Michigan, its officers, agents sucessors, and assigns
shall take the action set forth in the said recommend-
ed Order.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge: The charge
in Case 7-CA-8836 filed by Robert D. McDaniel on July
16, 1971, was served by registered mail on the Motor City
Electric Company, the Respondent herein, on about July
21, 1971. A complaint and notice of hearing was issued on
September 30, 1971. In the complaint it was charged that
there was a mutual understanding and arrangement be-
tween the Respondent and Local Union No. 58, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO,
herein referred to as the Union or Local 58, whereby all the
overtime at the Ford Motor Company Flat Rockjobsite was
assigned by stewards of the Union solely rather than by and
with the concurrence of representatives of Respondent. It
was further alleged that the Union discriminatorily assigned
overtime work for employees of the Respondent at the Ford
Motor Company Flat Rock jobsite to its own members
whereas members of other electrical unions commonly
called travelers, such as Robert D. McDaniel, were refused
overtime work and that the Respondent was aware and
acquiesced in such discrimination. The complaint further
alleged that the Respondent threatened McDaniel with the
loss of his job if he continued to complain or if he filed a
grievance with respect to the Union's assignment of over-
time. Finally the complaint charged in respect to the Re-
spondent that it discharged McDaniel because of his status
as a traveler and because of his having filed and processed
the above-mentioned grievance. By these acts it was
charged that the Respondent violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended, herein
referred to as the Act. In the same complaint in Case 7-
CB-2448 the Union was charged with violating Section
8(b)(1)(A) and (2) of the Act.
The Respondent filed timely answer denying that it had
engaged or was engaging in any of the unfair labor practices
alleged.
The complaint came on for hearing and on December 7,
1971, an informal settlement agreement was approved and
the hearing was postponed without date.
On June 28, 1972, the charge in Case 7-CA-9650 was
filed by Robert D. McDaniel and served by registered mail
on the Respondent June 29, 1972. A complaint and notice
of hearing was issued on August 18, 1972. In the complaint
among other things it was charged that on about June 27,
1972, the Respondent refused to hire McDaniel, who had
been referred to the Respondent's Ford Motor Company
River Rouge jobsite by the Union, allegedly because the
Respondent had an unwritten rule against rehiring former
employees it had discharged and that by such conduct the
Respondent violated Section 8(a)(1) and (3) of the Act. On
the same date the Regional Director for Region 7 moved to
open Case 7-CA-8836 and consolidate it with pending Case
7-CA-9650. The cases were ordered consolidated. Ruling
on the Regional Director's motion that the settlement agree-
ment be set aside was deferred until such time as evidence
should be taken.
The Respondent filed timely answer denying that it had
engaged or was engaging in any of the unfair labor practices
alleged.
The consolidated cases came on for trial on October 12
and 13 and November 21, 1972, at Detroit, Michigan. Each
party was afforded a full opportunity to be heard, to call,
examine , and cross-examine witnesses, to argue orally on
the record, to submit proposed findings of fact and conclu-
sions, and to file briefs. All briefs have been carefully con-
sidered. After the introduction of the General Counsel's
evidence, the motion to vacate the settlement agreement
was granted in Case 7-CA-8836.
FINDINGS OF FACT,I
CONCLUSIONS, AND REASONS THEREFOR
I THE BUSINESS OF THE RESPONDENT
The Motor City Electric Company is and has been at all
times material herein a corporation duly organized under
and existing by virtue of the laws of the State of Michigan.
At all times material herein Respondent has maintained its
1 The facts found herein are based on the record as a whole and the
observations of the witnesses
204 NLRB No. 77
MOTOR CITY ELECTRIC COMPANY
principal office and place of business at 840 West Milwau-
kee Avenue in the city of Detroit and State of Michigan and
maintains another place of business in the State of Florida.
Respondent is and has been at all times material herein
engaged in the business of industrial electrical construction.
During the fiscal year ending September 30, 1971, which
period is representative of its operation during all times
material herein, Respondent in the course and conduct of
its business operations realized a gross revenue in excess of
$500,000 and purchased and caused to be transported and
delivered at its Michigan places of business, electrical wire
components and other goods and materials valued in excess
of $100,000 of which goods and materials valued in excess
of $50,000 were transported and delivered to its places of
business in Michigan directly from points located outside
the State of Michigan.
During the fiscal year ending September 30, 1971, which
period is representative of its operation during all times
material herein, Respondent in the course and conduct of
its business operations performed services valued in excess
of $100,000 of which services valued in excess of $50,000
were performed in and for various enterprises located in
States other than the State of Michigan.
Respondent is now and has been at all times material
herein an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Local Union No. 58 , International Brotherhood of Elec-
trical Workers , AFL-CIO, herein called the Union, is and
has been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES 2
A. Discrimination in the Assignment of Overtime
Robert D. McDaniel was a member in good standing of
International Brotherhood of Electrical Workers, Local
1547, Anchorage, Alaska. In November 1970, he was re-
ferred through Local 58's hiring hall to the Respondent
Motor City Electric Company for employment at the Ford
Casting plantsite in Flat Rock, Michigan. He was hired and
worked there in a traveler's status until June 25, 1971, at
which time he was discharged for "leaving for lunch early
and coming back from lunch late."
On April 16, 1971, McDaniel filed a grievance against
Union Steward Paul Monberg "concerning the practices of
overtime distribution at Ford Casting Plant." McDaniel
claimed discrimination and demanded overtime backpay
noting that "a junior fellow employee, Robert Rolland, was
2 The credibility resolutions herein have been derived from review of the
entire testimonial record and exhibits, with due regard for the natural logic
of probability, the demeanor of the witnesses , and the teachings of N L R B
v Walton Manufacturing Company & Loganville Pants Co, 369 U.S 404, 408
(1962). As to those witnesses testifying in contradiction to the findings herein,
their testimony has been discredited , either as having been in conflict with
the testimony of credible witnesses or because it is in and of itself incredulous
and unworthy of belief.
461
permitted 8 hours overtime pay." It is this discriminations
in the assignment of overtime which the General Counsel
points to as a violation of Section 8(a)(3) of the Act, main-
taining, in this respect, that, with the acquiescence of the
Respondent, McDaniel received disparate treatment from
Local 58 because of his status as a traveler.
Union Steward Paul Monbert whom McDaniel charged
with discrimination was "in charge" of the assignment of
overtime.3 However, Assistant Steward Michael Canfield
"primarily took care of the overtime." Canfield assigned the
overtime to employees when he was informed by Job Super-
intendent Roy Smalstig on which jobs overtime was needed.
This information usually came to Canfield late in the day.
For this reason and because of the immense area in which
the employees worked (2,500,000 square feet) Canfield's
task of reaching the employees was not always an easy one.
In this respect Canfield explained, "I tried to go in rotation,
but if I-if there was just a little time allotted to me to get
the fellows, most of the time, I'd say ninety percent of the
time, I'd just grab who ever I could for overtime." Around
50 percent of the overtime work was on panels. Since the
employees working on panels were familiar with the job and
the thousands of wires composing the panel and needed no
instruction, according to the Respondent they were general-
ly offered overtime work on the panel on which they were
working.4 Nevertheless, Canfield maintained a list which he
utilized for the assignment of overtime but had not seen it.5
On the list was recorded the hours of overtime credited to
each employee. Thus from the list it could have been de-
termined, based on rotation of overtime, which employees
were entitled to an overtime assignment.'
Prior to April 1971 McDaniel had received no overtime
assignments. In the forepart of April McDaniel asked Stew-
ard Paul Monberg when it would be his turn to work over-
time. Monberg, "pointing to a list of people unemployed on
the books at the union hall," replied that McDaniel "was
lucky to be working let alone working any overtime." I On
another occasion when Canfield was passing out overtime
on a jobsite, McDaniel inquired about overtime. Canfield's
answer was, "We'll get to you." Although some overtime
was assigned for the job on which McDaniel worked his
only opportunity for overtime occurred when Charlton had
3 General Foreman James D Charlton testified
Q Well, didn't Monberg give out overtime?
A Yes, he did. He was in charge of it
4 Canfield testified "[Job Superintendent Roy Smalstig] would tell me
where he wanted them [lobs] and he would tell me if there was already people
working on them, like a panel, and in such cases I would grab them "
5 Smalstig testified, "To my knowledge, [Canfield] had a list of people that
had overtime and those that were up for it he went out and got."
6 On Canfield's overtime list travelers and Local 58 members were carried
in separate groups. Canfield claimed that the separation of travelers from
Local 58 members was "just a form of bookkeeping that stewards have," as
an easy reference to ascertain whether the travelers have paid their permit
fees.
7 It is highly likely that Monberg was alluding to McDaniel's status as a
traveler and his statement seems indicative of an attitude toward travelers
expressed by Foreman Joseph M Piccola to McDaniel, i e , "travelers
shouldn't have the same rights as local men and they shouldn't be working
when local men weren't working" That McDaniel's protest over overtime
was considered an unusual one is evident from the testimony of Field Super-
intendent Victor J Rizzo, "I have personally been a foreman with many
travelers in my crew through the years We have never had this situation with
fellows on the job. If they got some overtime, they were happy If they did
not, then nobody said anything"
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"struck his head in the door of the bus 8 and asked if any-
body was interested in working one hour overtime." There
were no takers.
On April 15, 1971, McDaniel informed General Foreman
Charlton that he was not receiving any overtime assign-
ments on the job and that he wanted some . Charlton said
that he would talk to Monberg. Later Charlton reported to
McDaniel that he had talked to Monberg who "didn't say
anything." Charlton told McDaniel not to press a grievance
about the overtime "because [he] was a good worker and he
didn't want to see [him] lose [his] job by a forced layoff."
He added that he knew that McDaniel "had house pay-
ments and car payments to make and [he] couldn't be mak-
ing them without a job," and that "it wouldn't do [him] any
good to complain about the overtime situation in the first
place."
Charlton admitted a conversation with McDaniel in
which McDaniel had asked, "What did you find out about
my overtime?" Charlton replied, "Nothing, Bob. You'll
have to talk to the steward." On another occasion Charlton
said McDaniel told him about his overtime grievance and
Charlton said, "Gee, Bob, I hate to lose you." 9
In respect to the assignment of overtime the Respondent's
records reveal that during the period from October 28, 1970,
through June 29, 1971, the three journeymen travelers 10
who worked substantially throughout the period received I
hour overtime among them and 54 Local 58 members (jour-
neymen) received an average of 12.75 hours overtime each.
Five Local 58 members worked no overtime. The foregoing
employees were all hired prior to January 1, 1971. As to
those employees who were hired between November 25,
1970 (McDaniel was hired November 30, 1970), and De-
cember 2, 1970, for the period of their employment ending
June 29, 1971, the three journeymen travelers received I
hour overtime among them and the 12 Local 58 members
(journeymen) received an average of 15.083 hours each. All
Local 58 members received some overtime. Between April
28, 1971, and July 20, 1971, travelers Korhonen (hired May
3, 1971), LeBlanc (hired December 2, 1970), McKinley
(hired April 29, 1971), Mullins (hired May 3, 1971), Neil
(hired April 29, 1971), Nummer (hired April 29, 1971), and
Wanttaja (hired November 30, 1970) received no overtime.
Thus the Respondent's records reveal that from October 28,
1970, through June 29, 1971, travelers worked 1 hour over-
time whereas, for example, journeyman Bjorn , hired the
same day as travelers McDaniel and Wanttaja received 19-
1/2 hours. Canfield explained the apparent disparate treat-
ment of travelers; "[M]y explanation on that, sir, would be
that in relation-that the ratio of the travellers to the men
on the job was that there were very vew travellers so it would
be very easy to miss them. I think at the time that Mr.
McDaniel complained there must have been, I don't know,
close to a hundred men and three travellers. Now it's very
easy to miss three out of a hundred people in that plant
believe me, sir." Nevertheless, there was no credible proof
that there had been no overtime available for McDaniel or
6 The employees were on the bus in preparation for leaving work
9 Charlton testified, "I was just saying it because I liked the way he was
working and I hated to lose him as a worker "
10 McDaniel was included among the three
that an assignment could not have been made had Canfield
willed.
In due course McDaniel's grievance came before the
Joint Management Committee which was composed of
three members of Local 58, Tom Garrison, Bill Zimmer-
man, and Richard Brazil, ll and three employer representa-
tives of the Southeastern Michigan Chapter National
Electrical Contractors Association of Detroit, Michigan,
Donald McFadden of Triangle Electric Company, Norbert
Holstein of Holstein Brothers Electric Company, and Rob-
ert Talbert, assistant manager of the Association. The Joint
Labor Management Committee rendered a decision in writ-
ing which in part read, " .. . there did not appear to be
substantial reason for overtime discrimination charges, on
the project cited in your grievance against Paul Monberg
and therefore, that the grievance be denied."
At the hearing in the presence of Roy Smalstig and Super-
intendent Victor J. Rizzo, Chairman McFadden "suggested
that maybe [McDaniel] was entitled to fifteen and a half
hours overtime because a person with lesser seniority had
received that many." Brazil and Zimmerman referred to the
"insofar as practical" provision of the contract.12 McDaniel
responded that he "thought it would be practical for him to
be offered overtime when the steward had a hard time find-
ing other employees to work this overtime." Monberg re-
sponded by telling Chairman McFadden that he wanted to
file charges against McDaniel for "intimidating" him. Mon-
berg further said that "he wasn't going to have [McDaniel]
working on the same job with him."
The credited facts in this case support a finding that the
Respondent delegated the assignment of overtime to Local
58 and it is so found. This finding is clinched by Charlton's
admitted direction to McDaniel when he inquired about
overtime, "You'll have to talk to the steward." There could
not have been a clearer delegation.
While the delegation of power over the assignment of
overtime to Local 58 may not be discriminatory,13 to the
extent, however, that an employer participates in a union's
arbitrary or discriminatory action against an employee, the
employer violates Section 8(a)(1) and (3) of the Act. Miran-
da Fuel Company, Inc., supra. Thus, if the Union discrimi-
nated against McDaniel because of his traveler's status, the
Respondent having delegated to the Union power over the
assignment of overtime is guilty of a violation of Section
8(a)(3) and (1) of the Act. These factors establish that there
was discrimination. The Respondent's records reveal that
the travelers were assigned almost no overtime. In this re-
spect the record reveals that, of the employees hired in the
approximately 2-week period during which McDaniel was
hired, all Local 58 members, 12 in number, received some
li Richard Brazil was the brother of Foreman Brazil employed by the
Respondent
Art VII, sec 3 of the contract, provides
OVERTIME ROTATION When overtime is necessary on ajob it shall be equal-
ly divided among the workmen regularly employed on such a job, inso-
far as practical Men not working on the job during the regular working
hours shall not be placed on overtime work while any of the regular crew
on said jobs are available for such work.
13 Cf Miranda Fuel Company, Inc, 140 NLRB 181, 183, wherein it is stated,
We accordingly do not find in the present case that the mere delegation to
the Union of authority to determine seniority status is itself sufficient predi-
cate for a finding of discrimination "
MOTOR CITY ELECTRIC COMPANY
overtime. The three travelers received 1 hour; McDaniel
received none. Common sense and the Laws of mathemati-
cal probability indicate that the pretermission of the travel-
ers was highly unlikely. Cf. Ventre Packing Co., Inc., 163
NLRB 540. Moreover, the records reveal that overtime was
fairly well equalized among the 12 Local 58 members. Ex-
cept for one who worked 25 hours overtime and one who
worked 2-1/2 hours overtime, the difference of overtime
hours assigned amounted to around 8 hours.14 One member
received I I hours; two, 12 hours; two 15-1/2 hours; two, 16
hours; two, 18 hours; and one, 19-1/2 hours. Here again
these assignments do not appear to have been the product
of chance. Union Steward Canfield's claim that because of
the ratio of travelers to Local 58 members "it would be very
easy to miss them" and the Respondent's claim that the
disparity between the assignment of overtime to travelers
and Local 58 members was due to the continuation of over-
time work on panels, and the authorization of overtime late
in the day do not have a convincing ring. As for Canfield
not only was he reminded by McDaniel that he was being
assigned no overtime but, with a separate list of travelers
and Local 58 members to which he constantly referred, it
seems highly unlikely that he would have missed the travel-
ers. As for the Respondent's claim not only does the cred-
ited evidence reveal that overtime was fairly well distributed
among Local 58 members under the circumstances and that
rotation was practiced but there is no credible proof that
none of the travelers worked on panels or there would have
been no overtime work available for them. Indeed there had
been overtime on thejob on which McDaniel worked yet he
received none. It also must be considered that neither the
Union nor some of the Respondent's supervisors looked
with favor upon travelers working when Local 58 members
were unemployed. Monberg's answer to McDaniel when he
inquired about overtime clearly implied that McDaniel as
a traveler ought to consider himself lucky that he was work-
ing. Foreman Piccola was frank in telling McDaniel, " .. .
travellers shouldn't have the same rights as local men and
they shouldn't be working when local men weren't work-
ing." Field Superintendent Rizzo articulated this same atti-
tude when he said, "If they [travelers] got some overtime,
they were happy. If they did not, then nobody said any-
thing." McDaniel was an unhappy traveler. He said some-
thing; the response was a threat of discharge if he pressed
his grievance. Since the credible record reveals nothing
which would have generated such threat except McDaniel's
status as a traveler, it is concluded that McDaniel was dis-
criminated against in the assignment of overtime because of
his traveler's status. Accordingly, it is found that the Re-
spondent as a participant in such discrimination violated
Section 8(a)(3) and (I) of the Act. Miranda Fuel Company,
Inc., supra, 188, "The right to hire and fire and to control
tenure of of employment is an employer' s alone ; and where
an employer does delegate or surrender hiring and firing
and related authority to a labor organization, the employer
is responsible, so far as this Act is concerned, for the unlaw-
ful manner in which the Union exercises the delegation."
463
See also Local Union No. 444, International Association of
Bridge, Structural and Ornamental Iron Workers, A FL-CIO
(Gust K. Newberg Construction Company). 174 NLRB 1108;
Buck Kreihs Company, Inc., 185 NLRB 620; Newport News
Printing Pressmen's and Assistants' Union, Local No. 288
(The Daily Press, Inc.) 188 NLRB 475; International Associa-
tion of Heat and Frost Insulators and Asbestos Workers, LQcal
No. 53 (McCarty and Armstrong), 185 NLRB 642; and Air
Conditioning, Refrigeration and Steamfitters Local Union No.
725, United Association of Journeymen & Apprentices of the
Plumbing & Pipefitting Industry of U.S. & Canada, AFL-
CIO, 194 NLRB 1089.
Foreman Charlton's implied threat to McDaniel that if he
pressed his overtime grievance he might be discharged was
a violation of Section 8(a)(1) of the Act. Local Union No.
444, Iron Workers, supra
Nevertheless, the Respondent contends, relying on Spiel-
berg Manufacturing Company, 112 NLRB 108&, that it ought
to be relieved of any liability in any event because the Joint
Labor Management Committee denied McDaniel's discri-
mination charges. The determination of McDaniel's griev-
ance required the interpretation and application of article
VII, section 3 (overtime rotation), of the contract between
Southeastern Michigan Chapter, National Electrical Con-
tractors Association of Detroit, Michigan, and Local 58.
Each member of the committee either because he was a
union member or connected with the association had an
interest in the interpretation and application of the section
involved. Three members represented the employer and
three members represented the Union.15 Since McDaniel, a
nonmember of Local 58, charged a Local 58 steward, both
the Employer and the Union were directly affected by the
resolution of the grievance. Thus there was no impartial
participant on the committee. The "fair and regular" hear-
ing envisioned in Spielberg Manufacturing Co., supra, is not
satisfied except when the tribunal to which the employee's
grievance is submitted is free from bias or interest. See also
Corral v. Associated Musicians of Greater New York, Local
802, 283 F.Supp. 176 (D.C.N.Y., 1968); John E. Parks v.
International Brotherhood of Electrical Workers, 203 F.Supp.
288, 307 (D.C.M.D., 1962). Moreover, Committeeman Bra-
zil was the brother of Foreman Brazil who was employed by
the Respondent.
Indeed, because McDaniel's grievance was leveled
against a union steward he was pitted against both the
Union and the Respondent whose interests were allied and
antagonistic to the interests of McDaniel and whose repre-
sentatives composed the tribunal to which was submitted
the resolution of the issues raised by McDaniel's grievance.
Among these issues was whether Local 58 had discriminat-
ed against a traveler, a nonmember of Local 58. Indeed a
finding that McDaniel had been discriminated against by
Monberg because he was a traveler would have carried with
it a finding that the Respondent had violated the Act since
it had delegated the power to assign overtime to the Union.
It is further significant that McDaniel, a non-Local 58 mem-
ber, neither had a member representing him on the commit-
15 Art II, sec 2, provides in part "There shall be a Joint Labor -Manage-
14 Canfield testified that a difference of 8 hours was allowed in rotating meat Committee with a minimum of three (3) and a maximum of five (5)
overtime among employees. As to these employees, except for the travelers , representing the Union and a minimum of three (3) and a maximum of five
the records reveal that Canfield deviated little from the rule (5) representing the Employer"
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tee nor was he represented by a Local 58 representative
before the committee . He stood alone . These circumstances
are not unlike in kind to those circumstances in the case of
Kansas Meat Packers, 198 NLRB No. 2, wherein the Board
refused to refer a grievance to arbitration because of the
"apparent antagonism between the interests of the discrimi-
nat es , on the one hand and both parties to the collective-
bargaining contract . . . on the other ." Accordingly, it is
found that the decision of the Joint Labor Management
Committee is not binding in these proceedings . See also
Fleet Distributing Service, Inc., 200 NLRB No. 35.
The award was clearly repugnant to the National Labor
Relations Act. The deciding tribunal was clearly antagonis-
tic and hostile to McDaniel 's interests.
B. The Discharge of McDaniel on June 25, 1971
A witness for the General Counsel , Donald W. Wilson,
testified credibly that on June 24 , 1971, he told Foreman
Scofield about 11:45 a.m . that he was going to lunch. Sco-
field replied that "lunch was from twelve to twelve thirty"
and that Wilson "could go at five to twelve ." Scofield left
at 11:45 a .m. When Wilson returned from lunch Scofield
escorted him to Union Steward Monberg and Superinten-
dent Roy Smalstig . Monberg quoted the working rules "that
lunch is from twelve to twelve thirty ." Wilson was told that
he would be dismissed if he committed another like offense.
As Scofield and Wilson returned to the job , Wilson angrily
said , "I'd do it again tomorrow , too." Scofield responded,
"I'll fire you too."
On June 25 , 1971, anticipating Wilson 's early departure
for lunch Superintendent Smalstig placed himself at the
guard 's gate at 11 : 30 a.m . At 11:45 16 McDaniel came
through the gate. Employee Herbie Maffen came through
the gate at 11:55 a.m . and employee Joe Kotula , a "couple
of minutes later." McDaniel returned through the gate at
12:30 p .m. and Kotula at 12 : 37 p.m . Maffen did not return;
he had been excused . It took between 2 to 5 minutes to go
from McDaniel 's work station to the gate . McDaniel and
Kotula were both discharged . Kotula was a member of
Local 58 . Neither employee filed a grievance under the
contract . McDaniel filed the charge in Case 7-CA-8836
which was settled as above noted . The company rules re-
quired that an employee remain on his job until 11:45 a.m.
and return to his job by 12:30 p.m.
The Supreme Court teaches that " ... the `real motive'
of the employer in an alleged § 8(a)(3) violation is decisive."
N. L. R. B. v. Brown et . a!. d/b/a Brown Food Stores, 380 U.S.
278, 287 ( 1965). "It is the `true purpose ' or `real motive' in
hiring or firing that constitutes the test." Local 357, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America [Los Angeles-Seattle Motor Express]
v. N.L.R . B., 365 U . S. 667 , 675 (1961 ). Both Local 58 mem-
ber Kotula and traveler McDaniel were caught in the trap
set for employee Wilson. Since they were treated the same,
a discriminatory purpose is negated . "Discrimination con-
sists [of] treating like cases differently ." Frosty Morn Meats,
Inc. v . N. L. R. B., 296 F .2d 617 , 621 (C.A. 5, 196 1), While no
16 Later in his testimony Smalstfg fixed the time as "between eleven forty-
five and eleven forty-six -
doubt the Union was glad to be shed of McDaniel and the
Respondent did not look askance at removing an irritant
from its payrolls , it is clear that the "true purpose" of Mc-
Daniel 's discharge was as given by the Respondent . Accord-
ingly , it is recommended that the allegations in the
complaint in respect to McDaniel 's alleged wrongful dis-
charge on June 25 , 1971, be dismissed.
C. The Refusal To Reemploy McDaniel on June 27, 1972
As noted above neither Kotula nor McDaniel filed griev-
ances in connection with their discharges on June 25, 1971,
although, in view of the piddling 17 nature of the infractions,
the fact that the infractions were first offenses, and the
circumstances of the discharges themselves , reinstatement
seems probable . Indeed , employee Wilson was not dis-
charged for the first offense although he left early for lunch
in direct violation of his foreman 's orders. Moreover, em-
ployee Herb Maffen , who was discharged for "having a cup
of hot coffee ," a rather piddling offense, after an appeal to
the Union 's executive board was returned to work.
McDaniel chose to file an unfair labor practice charge
which was a subject of the complaint in Case 7-CA-8836.
His choice to go to the Board rather than the committee was
understandable in view of his prior discriminatory treat-
ment by the Union and the Respondent.
In May 1972 Kotula was rehired by the Respondent on
the Ford River Rouge job . On June 27, 1972, McDaniel was
referred by the Union to the Respondent for employment
on the Ford River Rouge job. He was not hired . Edward St.
Onge, a member of Local 58, was also referred by the Union
to the Respondent on the same day; he was hired . McDaniel
and St . Onge arrived at the jobsite at approximately the
same time . General Foreman Roy Smalstig referred Mc-
Daniel and St. Onge to the steward who was located in a
trailer on the jobsite . St. Onge and McDaniel contacted the
steward in the trailer . The steward received St. Onge 's refer-
ral slip and dues receipt but refused McDaniel 's tender of
the same "saying that he would be right back ." About 5 or
10 minutes later somebody came to the trailer and requested
that St . Onge come outside . Shortly thereafter Smalstig and
the steward entered the trailer and Smalstig announced that
McDaniel "wasn ' t being accepted ." Upon McDaniel's in-
quiry as to why he was not to be accepted Smalstig re-
sponded, "No comment ." Smalstig left . McDaniel then
asked the steward the same question. The steward re-
sponded that "Smalstig did not say why." On August 11,
1972, the Union again referred McDaniel for employment
with the Respondent . He was again refused employment.
According to Rizzo he made the decision not to rehire
McDaniel. On the occasion of McDaniel 's referral on June
27, 1972 , Rizzo informed Roy Smalstig that McDaniel "had
been fired and we do not rehire the men we fired in the
past." Rizzo testified that this was the only reason he offered
Smalstig for McDaniel 's rejection although he had in mind
McDaniel 's poor work record . 18 According to Roy Smalstig
the Respondent put into effect an unwritten rule in the first
part of 1970 which required the rejection for employment of
17 McDaniel 's lost time involved less than 10 minutes
18 The working agreement provided that "The Employer shall have the
right to reject any applicant for employment"
MOTOR CITY ELECTRIC COMPANY 465
any employee who had been previously discharged by the
Respondent . However , according to Rizzo , the "rule had
been put into effect in the early part of 1971, approximately
March or April ." Other than Rizzo , Rizzo testified that only
Job Superintendents Roy Smalstig and Jack Novak had
been informed of the rule.
The Respondent cited several alleged examples of em-
ployees who had been refused employment ; however, only
two of them , Herb Maffen and William Byrd , had been
discharged by the Respondent previously . Both were re-
fused employment after the McDaniel incident ; Maffen on
July 28, 1972, and Byrd on August 7, 1972.
Rizzo explained the employment of Kotula as follows:
Job Superintendent Russ Smalstig "advised that he needed
some people for his job ." Rizzo authorized the hiring of
some employees . Smalstig called the union hall for the em-
ployees . The employees arrived at the job among whom was
Kotula . Kotula was put to work . Smalstig was a new job
superintendent and Rizzo had "neglected" to familiarize
him with the rule barring hires of previously discharged
employees . Rizzo was not contacted by Smalstig because
Rizzo was out of the city attending a funeral . When he
returned , Smalstig advised Rizzo that he had hired Kotula.
Rizzo replied , " ... you made a mistake , you should not
have hired this man ." Kotula was continued in employ-
ment.19
The Respondent claims that McDaniel was refused em-
ployment because of the no-hire rule above noted and be-
cause of his poor work record . Facts to substantiate the
latter were derived by Rizzo from other employers and the
Respondent 's own supervisors . Information from other em-
ployers was obtained in the preparation of a defense to
McDaniel's discharge on June 25 , 1971, and is given little
probative weight in the light of the Respondent's own
known work experience with McDaniel . McDaniel's work
experience with the Respondent indicated that McDaniel
had some problems getting along with certain individuals
but significantly when McDaniel was put "with George
Nummer . . . they got along fine." George Nummer was a
traveler as was McDaniel . Piccola testified that McDaniel
"got along fairly well with most of the men ." One employee
mentioned that he did not want to work with McDaniel
"because of some charges ." Charlton admitted that he
"liked the way [ McDaniel] was working and [he] hated to
lose him as a [good] worker ," In fact his pleasure with
McDaniel was such that he warned him not to press his
overtime grievance lest he lose him as a worker . Thus it is
concluded that reliance on McDaniel's rejection of employ-
ment drawn from his poor work record was an afterthought
offered in argumentation of the Respondent's defense here-
in. As for the no-hire rule , it apparently came into being
(that is if it ever did ) some time after McDaniel was refused
employment . This seems apparent because of the disparity
between Smalstig and Rizzo as to the effective dates and
because the examples of its use all occurred after McDaniel
was discharged. This conclusion is also obvious from the
fact that Kotula, a prior dischargee for the same reason, was
reemployed . The Respondent 's claimed oversight of the no-
19 Russ Smalstig was not called for testimony According to Rizzo, Smal-
stig is presently in West Wood, Wyoming, working for Allied Chemicals
hire rule in this regard does not have a convincing ring. Had
Rizzo really been interested in the enforcement of the no-
hire rule he surely would have countermanded Kotula's
hiring when he learned of it . Another incongruous happen-
ing which manifests the doubtful character of the testimony
of Rizzo and Smalstig on this subject is the fact that Smal-
stig contacted Rizzo at all when McDaniel appeared for
employment . It does not seem reasonable that Smalstig,
who had previously fired McDaniel , would have needed to
consult Rizzo, when , if the no-hire rule was in effect, he
could have rejected McDaniel out of hand . It is also difficult
to explain Smalstig's reluctance to tell McDaniel why he
was rejected for employment unless one infers that the real
reason was being concealed . Moreover , the Respondent
failed to call Russ Smalstig who had hired Kotula and was
most familiar with the incident or to come forward with any
reasonable explanation for his absence . Thus the inference
obtains that had he been called his testimony would have
been unfavorable to the Respondent. "Silence then becomes
evidence of the most convincing character." Interstate Cir-
cuit, Incorporated v. U.S., 306 U.S. 208, 226 (1939). See also
International Union, United Automobile, Aerospace and Agri-
cultural Implement Workers ofAmerica (UAW) v. N. L. R. B.,
459 F .2d 1329 (C.A.D.C . 1972), and Threads -Incorporated,
124 NLRB 968, 971.
The Supreme Court teaches us that the "real motive" or
"true purpose" of the employer constitutes the test when
discrimination under Section 8(a)(3) is charged . The "true
purpose" of the Respondent in rejecting McDaniel for em-
ployment was in gratification of the Respondent's desire to
bar from its employment an employee who was looked upon
unfavorably by the Union,20 had been the butt of its prior
discrimination , had shown militancy in pressing an over-
time grievance , and had pressed grievances against the
Union and the Respondent by filing charges with the Board.
Except for this conclusion there is no credible explanation
for the Respondent's conduct for McDaniel was a "good
employee" and the cause of his initial discharge was not one
(which the Respondent demonstrated when it rehired Kotu-
la) of such a serious nature as to render McDaniel an unde-
sirable employee for this reason . Furthermore , the credible
record indicates that the no -hire rule was tailored to fit the
McDaniel situation . Accordingly, it is found that , by discri-
minatorily rejecting McDaniel for employment , the Re-
20 Such conclusion follows from the Respondent's acquiescence in the
Union's discriminatory assignment of overtime to McDaniel because he was
a traveler Moreover, Steward Monberg in the presence of Respondent's
representatives said that "he wasn't going to have [McDaniel] working on the
same job with him " In this respect it is further significant that when Mc-
Daniel arrived for work on June 27, 1972, while the union steward accepted
the referral slip and dues receipt from Local 58 member St Onge, he refused
the same from McDaniel, left his presence, and thereafter returned with
Superintendent Roy Smalstig at which time McDaniel was rejected for em-
ployment. These events are not cloaked in the innocence suggested by the
Respondent On the other hand, it appears that McDaniel was flagged by the
union steward since Smalstig who had discharged McDaniel and supposedly
knew of the no-hire rule had passed him to the steward Had Smalstig been
imposing the no-hire rule, or had there been such a rule, there would have
been no need for Smalstig to have referred McDaniel to the steward. Thus,
there is a strong inference that at the time McDaniel was rejected for employ-
ment the Respondent was still engaging in hanky-panky with the Union
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent violated Section 8(a)(1), (3), and (4) of the Act. See
Phelps Dodge Corp. v. N. L. R. B., 313 U.S. 177 (1941).21
The instant case is not unlike that of Gates Air Condition-
ing, Inc., 199 NLRB No. 143, wherein the Board said,
"Whatever the reasons Respondent may have had for origi-
nally discharging Squicciarini , it is clear that those reasons
were no longer material when Respondent refused to rein-
state Squicciarini on August 24 and that the real reason was
his concerted [union] activity." It is concluded that the real
reason for the Respondent's refusal to reemploy McDaniel
was wholly unrelated to the cause of his initial discharge;
it was wholly grounded on unlawful discrimination.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act and it will effec-
tuate the purpose of the Act for jurisdiction to be exercised
herein.
3. By unlawfully refusing employment to Robert D. Mc-
Daniel on June 27, 1972, the Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(3) and (1)
of the Act.
4. By interfering with , restraining , and coercing its em-
ployees in the exercise of their rights guaranteed them by
Section 7 of the Act , the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a)(1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE RECOMMENDED REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
It having been found that the Respondent unlawfully
refused to employ Robert D. McDaniel on June 27, 1972,
and thereby violated Section 8(a)(3) and (1) of the Act, it is
recommended that the Respondent remedy such unlawful
conduct in accordance with Board policy 22 by offering
Robert D. McDaniel immediate employment to the position
he would have occupied on June 27, 1972, had he been
employed on that date by the Respondent or a substantially
equivalent position , without prejudice to his seniority or
other rights and privileges and by making him whole for any
loss of earnings he may have suffered as a result of the
discrimination against him by the payment to him of a sum
21 "Section 8(a)(3) imposes a duty upon management not to discourage or
encourage union membership by its hiring procedures And by 'membership',
we mean effective, not docile , membership If the company were permitted
to encourage union eunuchs , the basic purpose of the whole Act would be
emasculated Effective and representative union organization can be deter-
red by the company's complacency toward the union's treatment of its dis-
senting members as well as by overt action directed at the union itself "
N L R B v. Aclang, Inc, 466 F 2d 558, 562 (C.A 5 September 12, 1972)
22 See The Rushton Company, 158 NLRD 1730, fn 2. In that McDaniel did
receive reimbursement of overtime in the settlement of Case 7-CA-8836,
reimbursement of lost overtime is not recommended herein.
of money equal to the amount he would have earned from
June 27, 1972, to the date of an offer of employment, less
net earnings during said period, to be coputed on a quarter-
ly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289, and shall include inter-
est at the rate of 6 percent per annum to be computed in the
manner set forth in Isis Plumbing & Heating Co., 138 NLRB
716.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 23
The Respondent, Motor City Electric Company, its offi-
cers, agents successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully discriminating against employees in the
assignment of overtime because they are travelers or not
members of Local 58 or any other labor organization in
violation of Section 8(a)(1) and (3) of the Act.
(b) Unlawfully threatening to discharge employees who
press overtime grievances.
(c) Unlawfully refusing to hire or employ individuals be-
cause they are travelers or not members of Local 58 or any
other Labor organization, because they press grievances
against the employer or the Union or because they file
charges with the National Labor Relations Board.
2. Take the following affirmative action which will effec-
tuate the policies of the Act:
(a) Offer Robert D. McDaniel immediate employment to
the same position at which he would have been employed
had he been employed on June 27, 1972, or, if that position
no longer exists, to a substantially equivalent position, with-
out prejudice to his seniority and other rights and privileges,
and make him whole for any loss of pay he may have
suffered by reason of the Respondent's discrimination
against him in accordance with the recommendations set
forth in "The Recommended Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(c) Post at its Detroit Michigan, places of business, cop-
ies of the attached notice marked "Appendix.', 24 Copies of
said notice, on forms provided by the Regional Director for
Region 7, after being duly signed by the Respondent's au-
thorized representative, shall be posted by the Respondent
23 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board, the fmdmgs,
conclusions, and recommended Order herein shall, as provided in Sec. 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and order, and all objections thereto shall be deemed
waived for all purposes
24 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
MOTOR CITY ELECTRIC COMPANY
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 custom-
arily posted. Reasonable steps shall be taken by the Respon-
dent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed insofar as it alleges violations of the Act other than
those found in this Decision.25
25 In that the General Counsel has advised that the copies of the affidavits
sought by the General Counsel in his motion for Order Requiring Return of
Copies of Statements have been returned by Respondent , the matter is con-
sidered moot and the General Counsel's motion is denied
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully discriminate against our em-
ployees in the assignment of overtime because they are
travelers or not members of Local 58 or any other labor
organization in violation of Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended.
WE WILL NOT unlawfully threaten to discharge em-
ployees who press overtime grievances.
WE WILL NOT refuse to hire individuals because they
467
are travelers or not members of Local 58 or any other
labor organization.
WE WILL NOT refuse to hire individuals because they
have pressed grievances against us or have filed charges
against us with the National Labor Relations Board.
WE WILL offer traveler Robert D . McDaniel immedi-
ate employment to the job he would have held had he
been hired on June 27, 1972, or, if that position no
longer exists , to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges , and make him whole for any loss of earnings
to which he may be entitled by reason of our failure to
employ him on that date.
Dated By
MOTOR CITY ELECTRIC
COMPANY
(Employer)
(Representative) (Title)
We will notify immediately the above-named individual, 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 Boulevard, Detroit, Mich-
igan 48226, Telephone 313-226-3200.