Savair Mfg., Co.

National Labor Relations Board - Board Decisions

Sep 20, 1977

232 N.L.R.B. 156 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Savair Mfg. Co. and Joseph C. Hankins. Case 7-CA-
13281
September 20, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 1, 1977, Administrative Law Judge Irving
M. Herman issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
brief, and has decided to affirm the rulings, findings,1
and conclusions of the Administrative Law Judge, to
modify his Remedy,2 and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent Savair Mfg. Co.,
Warren, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods pnor
to August 25. 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
DECISION
STATEMENT OF THE CASE
IRVING M. HERMAN, Administrative Law Judge: This
case was heard before me on February 9-10, 1977, in
Detroit, Michigan. The charge was filed by Joseph Gilbert
Hankins, an individual, on August 18, 1976, and duly and
I Certain errors in the transcript have been noted and corrected.
232 NLRB No. 15
timely served on Respondent. The primary issues are
whether Respondent violated Section 8(a)(1) and (4) of the
National Labor Relations Act, as amended (29 U.S.C., Sec.
151 et seq.), herein called the Act, by refusing to hire
Hankins because of his protected concerted activities
and/or because he had sought the assistance of the
National Labor Relations Board.
Upon the entire record,' including my observation of the
witnesses, and after due consideration of the briefs filed on
behalf of the General Counsel and Respondent, I make the
following:
FINDINGS AND CONCLUSIONS
I. RESPONDENT'S BUSINESS
Respondent is a Michigan corporation and maintains its
principal office and place of business in Warren, Michigan,
where it is engaged in the manufacture, sale, and distribu-
tion of parts for pneumatic and hydraulic control valves
and related products. During the year ending December
31, 1975, a representative period, Respondent, in the
regular course of its business, shipped products valued in
excess of $100,000 directly to other points in Michigan
where they were incorporated into finished products which
were then shipped directly to points outside Michigan by
companies engaged directly in interstate commerce. Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Facts
I. Hankins' prior employment by Respondent
Hankins worked for Respondent for a period of about 6
months ending around mid-April of 1969. He was leadman
in the turret lathe or screw machine department which
included about two or three other employees. Around
March 1969, the entire department engaged in a walkout to
protest the failure to fulfill a promise of higher wages and
the hiring of a new man at a wage equal to or higher than
theirs. While the others punched out at lunchtime and
remained in the parking lot beyond the lunch period,
Hankins went up to the office, as their spokesman, to talk
to their supervisors. He spent about an hour discussing the
situation with their immediate supervisor, Fred Popek, the
engineer, Ray Neck, and Wilbur (Bud) Fisher, the general
superintendent and production manager, who was called in
by Popek and Neck. The meeting was amicable and
culminated in a 10-cent raise for the employees other than
Hankins. 2 After the men returned, however, Popek asked
Hankins whose side he was on, and shortly thereafter
another man was hired at what Hankins believed was a
higher rate than his and for the purpose, Hankins believed,
of taking his job. Hankins testified that one of the
2 No explanation appears for the absence of a raise for Hankins.
156
SAVAIR MFG. CO.
employees was fired about a week after the walkout, but
Fisher testified that none of the men were disciplined
because of the walkout. Fisher did testify as follows,
Q. What was the result of your discussion with Mr.
Hankins?
A. We settled the thing in question, the amounts
and so on that the men wanted.
Q. Did you have any feeling as to whether-strike
that. What was your reaction to the matters that he
raised, the wages and the complaints that he raised?
A. I had no reaction other than if they had a
problem, I would like to have them come in and talk it
over and let's get it straightened out. They didn't have
to go as far as they did.
The turret lathe department makes parts for the rest of
the shop, so that a tieup in production there affects the
production of the whole shop. Around early April in 1969,
Hankins decided to quit Respondent's employ because of
the hire of the man he thought was slated for his job. At
that time Hankins was averaging about 56-58 hours a
week. He testified that he informed Popek of his intention
to seek another job and to leave as soon as he found one;
and that Popek said that was fine with him, and then went
on vacation. About a week later, Hankins located a job and
advised Neck, who was then filling in for Popek, that he
would be leaving the next day.3 Fisher testified without
objection that Popek (apparently no longer in Respon-
dent's employ), from whom he learned 2 or 3 days later of
the quit, "was a little unhappy. He give (sic) him no
notice." 4
From the time Hankins left Respondent until August
1976 Hankins spent no time as a turret lathe operator. At
first he did other mechanical work, but since July 1970 he
engaged in the business of supplying Christmas trees and
firewood.
2. Hankins' 1976 application
On August 2, 1976, Hankins telephoned Respondent for
the purpose of obtaining a job. 5 He talked with Carroll
Bridgeman who had apparently succeeded to Popek's
position but had not known Hankins during his prior
employment there. In answer to Hankins' inquiry, Bridge-
man, who had authority to screen out applicants, acknowl-
edged that they were hiring turret lathe operators. Hankins
said he had worked there before but quit, and Bridgeman
said he would check Hankins' record and return the call.
Bridgeman called Hankins at his home about an hour or
two later. 6 According to Hankins, Bridgeman said that the
records showed Hankins had been terminated and that
after talking to Neck he did not want to hire Hankins. He
declined to tell Hankins what Neck had said, stating that
that information was confidential, and, in response to
3 Hankins added on cross-examination, without contradiction, first, that
he "[Plrobably," and then, that he definitely, had earlier given Neck the
same kind of notice he had given Popek. Neck. still in the company
hierarchy, did not testify.
4 If not hearsay, this last was an inference from the fact (if his further
testimony is credited) that Popek never notified him that Hankins was
leaving, although a supervisor would ordinarily bring such information to
his attention.
Hankins' statement that he had not been terminated but
had quit, Bridgeman said "that wasn't the issue." Accord-
ing to Bridgeman, after examining the company records he
consulted Neck who informed him that Hankins was
Lane's son-in-law and "That rang a bell"; he recalled
Lane's having complained to him about Hankins in casual
conversation over the past 2 or 3 years, as follows:
Q. (By Mr. English) Mr. Bridgeman, will you tell us
please what you recall at that moment Mr. Lane had
told you in the past about his son-in-law Mr. Hankins?
A. That they had worked together at one time and
that his son-in-law had been let go or fired from the job
for punching in and then leaving the place of employ-
ment without telling the supervisor or without punching
out, and this is why he was discharged, meaning, in my
estimation, that the man was untrustworthy, that if he
would punch in, that was one of the impressions that I
got from talking to Charley.
Q. What other impression did you get?
A. That his son-in-law was lazy, would not go out
and seek employment.
Q. Why? Tell us what specifics were related, not
the conclusions.
A. One thing he told me his son-in-law had a lot of
orders to chop wood, and he would not do it. He just let
it go and slide and they could use the money but he
would not chop the wood or cut the wood or whatever
he was supposed to do and deliver it. This was on one
occasion he mentioned this to me.
Q. Was there any indication of any hostility
between Mr. Lane and Mr. Hankins?
A. Yes, there was. Mr. Lane told me on more than
one occasion that he would quit our employment if he
had to work with his son-in-law again.
Accordingly, Bridgeman testified, he told Hankins in the
second conversation that it would not be worth his while to
come down and fill out an application, that he did not
believe he wanted him as an employee because "I didn't
care to hire problems or trouble and to me he presented a
problem"; he did not recall any protest from Hankins or
that Hankins asked him what he meant by calling Hankins
a problem or trouble, and while he did not explain the
terms to Hankins, what he had in mind was the fact that
Hankins did not get along with Lane, Lane's account of
Hankins' loss of a job because of the punching-in episode,
and Hankins' having quit Respondent when he was needed
in 1969. Bridgeman denied that the 1969 walkout had
played any part in his decision to tell Hankins on August 2
that it would be futile to file an application although he
admitted that he had learned about the walkout that day
5 Hankins' father-in-law, Charles (Chuck) Lane. who was also a turret
lathe operator and who did not get along with Hankins. had informed him
that Respondent was hiring turret lathe operators.
6 Hankins' call had been made from a friend's house. The friend, whom
Hankins described as a practical joker. had told Hankins after the call that
he had taped the conversation. Hankins did not know whether he had or not
but mentioned the matter to Lane who apparently related it in turn to
Respondent.
157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when "[slome of the men mentioned it and so did Ray
[Neck]" in the course of his inquiries concerning Hankins.7
On August 6, Hankins called Bridgeman to say that he
had talked to people at the Labor Board s and been advised
that he had a right to know why he was not being hired. He
testified that Bridgeman said that he had been told by
Neck that Hankins had "missed a lot of work," that he
denied it, and Bridgeman advised him not to cause any
trouble and that he could get a better job elsewhere. He
also testified that he again raised the question of "termina-
tion" on his record and that Bridgeman said that the term
was probably used only to designate his last day of
employment. Bridgeman testified that Hankins insisted in
this conversation that the reason he was not being hired
was his involvement "in some incident there at the plant,"
i.e., the walkout, that Bridgeman replied "that was the
farthest reason of all," and that when Hankins continued
to argue about it, he hung up on him. Hankins' testimony
was that the walkout was not discussed in this conversation
but the next day when he again called Bridgeman, 9 and the
following ensued:
A. I called Mr. Bridgeman and I said, "I'd like to
get my record straightened out," and he said, "Look,
Joe, I was nice enough to call you the first time, but I
was aware of the problem that Fred had with the
walkout when I come over to this shop, and I don't
want to hire a problem."
And I said something to the effect that I didn't cause
the walkout, I believe in that conversation I said that.
And he said, "Well, I just don't want to hire a labor
problem," he said, "but I'll give you a good recommen-
dation to get another job if you don't cause any trouble.
But if you do, well, I can't."
On August 9 Hankins called Eugene Wolfbauer, Respon-
dent's vice president and told him that Bridgeman did not
want to hire him because he felt the walkout had been
Hankins' fault. According to Hankins, Wolfbauer said,
"Well, you more or less stuck you neck out and got it cut
off," Hankins said, "Well, yes," and Wolfbauer said,
"Well, we have it on record who caused the protest, let me
check it out and I'll get back with you." Wolfbauer's
account of the conversation was that he told Hankins that
he did not remember him or the walkout; that Hankins
then asked him to talk to Bridgeman about giving him a
job; and that he promised to pull Hankins' file and "I told
him I would review his record, I would have a look at it,
and I would see the conditions of him leaving the
company." According to Wolfbauer, he also asked Han-
kins what he had been doing in the interim and Hankins
replied that he had been in "the landscaping business and
chopping wood and so on." Hankins did not recall
discussing this subject, but both agreed that Wolfbauer
promised to call Hankins back.
On August I I Hankins went down to the shop. He went
to the office of Ray Neck with whom Bridgeman was
lunching. He introduced himself and, according to his
testimony, asked Bridgeman if the walkout was the reason
7 On cross-examination, Bridgeman changed "some" to "one."
g In his conversations with the Company he referred to the Board as the
Fair Labor Relations Board.
he would not hire him, to which Bridgeman responded,
"Yes, I don't want to hire a problem"; that he protested
that the walkout had not been his fault and he had merely
acted as the men's spokesman; that he told them he had
been informed by people at the Labor Board that the
walkout could not be used as a reason for rejecting him;
that Bridgeman suggested he fill out an application and
told him that his old application would not suffice; that he
told Bridgeman that Gordon of Fairlane Tool, where he
had gone to work after quitting Savair in 1969, would give
a good recommendation, and Bridgeman said he would go
over to his office in the adjoining building and call
Gordon; that after Bridgeman left, Neck asked Hankins
what he was going to do about his problem, and he replied
he would try to work it out himself but, failing that, he
would take it to the Board; that he then went over to the
other building to get the application; that Bridgeman met
him there and told him he had talked with Gordon who
said that Hankins had missed 8 days in 8 months; that
Hankins asked whether that was the reason he was not
going to hire him and Bridgeman replied, "That's reason
enough"; that they then got into an argument with
Hankins charging Bridgeman with violating his rights and
saying he would see Bridgeman in court with the Board,
and Bridgeman replying that Hankins had violated his
rights by taping the phone conversation; that Bridgeman,
who had a blank application in his hand, told him to fill it
out but that "it wouldn't do me any good"; that he grabbed
the application from Bridgeman's hand and took it home
where Lane told him that night to fill it out and submit it
because it would be considered fairly.
Bridgeman's version of the August 11 events was that
Hankins commenced the conversation in Neck's office by
stating he had come to tell his "side of the story"; that
while Hankins then proceeded to deny responsibility for
the walkout, Bridgeman shrugged his shoulders and said it
did not matter to him, that the walkout did not interest him
and that if Hankins wanted to "he could go right next door
and get an application over there"; that about 10-15
minutes later, after he had returned to his office, he was
called by Ann Glavin, the office secretary, to come to the
front office to see a man who had refused to fill out an
application and asked to see him; that when he got there he
found Hankins "in a noisy, shouting mood"; insisting that
filling out an application would be useless, and they could
not refuse to hire him because of the walkout; that he in
turn became angry and lost his temper "and I told him,
well, you have to fill out an application. I said I can't do
anything for you unless you fill out an application. He
provoked me further. I told him I had already known that
he missed quite a bit of time" at Fairlane Tool, and that he
would have to fill out an application or leave, at which
point Hankins took the application.
Glavin, the secretary, testified that she called Bridgeman
to come up front because Hankins had refused to fill out an
application and asked to see him, and that when Bridge-
man appeared, they argued about the application, Hankins
saying that Respondent already had one on file and did not
9 Bridgeman recalled only one conversation with Hankins between
August 2 and August I I, but he placed that on a Saturday about 4 days after
the initial contact.
158
SAVAIR MFG. CO.
need another, but that he finally took one and left.
Although she could "hear the whole conversation" between
the two "very well," her testimony is silent about the
walkout and about Hankins' work at Fairlane. She also
failed to corroborate Bridgeman's testimony of another
applicant's presence in the office or waiting room at the
time. She testified that when Bridgeman came in he called
Hankins by name, and that she recognized the name
"[f]rom doing payroll." Hankins firmly denied "refus[ing]
to fill out an application at any time." 10
Hankins completed the application at home that night
but "messed [it] up," and returned the next day, August 12,
for another which he obtained from Glavin and filled out
at the plant. Meanwhile, earlier that morning, Fisher, who
by this time was in semiretirement, had come to the plant.
He testified that at about 7:45 a.m., about 10 minutes after
his arrival, Bridgeman, after talking with him about a new
machine they had, reported to him the events of the
preceding day, which he in turn immediately passed on to
Wolfbauer together with his recommendation not to hire
Hankins." Glavin called for Bridgeman to come to the
office to see Hankins, and it was at that time that
Bridgeman went to Fisher's office, explained what had
happened the previous day and "dumped the matter in
[Fisher's] lap." Both of them went to the conference room
to meet with Hankins. Bridgeman testified that this was
still in the morning. Fisher testified, however, that the
meeting occurred in the afternoon and was immediately
preceded by a second visit from Bridgeman who informed
him of Hankins' presence and asked him to accompany
him because Bridgeman did not wish to handle the
situation himself in view of "this problem" he had
indicated that morning.
The meeting proceeded more amicably than had been
expected. Hankins and Bridgeman exchanged apologies for
their prior conduct and shook hands. Fisher testified that
he was aware before the meeting started that Hankins had
"threat[ened]" to go to the Labor Board.'2 Hankins
apparently raised the subject of the walkout, asking Fisher
if he remembered the incident, and, according to him,
Fisher said "that wasn't the issue" but that he recalled that
Hankins had been the spokesman. Hankins further
testified that Fisher added that the fact that Hankins had
gone to the Labor Board could affect his employment
because the men might bring him their problems; and that
Bridgeman stated that he couldn't walk through the shop
without the men making some kind of remark about taking
him to court, and that "We had trouble with the [Labor
i' The testimony of Respondent's witnesses suggests no explanation for
the unlikely sudden outburst by Hankins who had only just left Neck for the
express purpose of obtaining the application which filing until that date
Bridgeman had admittedly indicated would be futile.
" "The only reason" for this recommendation "was due to the trouble
[Hankins ] had caused" on the I I th.
12 He stated that he had been informed, inter alia, that Glavin had been
one of those so threatened. Her testimony contained no reference thereto.
11 Bridgeman. ;hough present, gave no testimony concerning the details
of the meeting, confining himself to his having entrusted the matter at that
point to Fisher.
14 Fisher testified that he believed that despite Hankins' mistake of
leaving the Company when he was badly needed, they had rehired people
before who had made mistakes, and he felt that Hankins could he brought
back and given a trial. Wolfbauer confirmed that Respondent has no firm
policy against rehiring employees who are discharged or quit.
Board] before, but we can get out of it, but it's a lot of
paperwork we don't need." Fisher denied ever saying that
Hankins would not be considered for employment because
he had complained to the Board. According to him,
however, Hankins himself said that he would not press the
matter before the Board and that any statements to the
contrary had regrettably been made in anger.i 3
Fisher and Bridgeman asked Hankins if he could handle
the job in view of his absence from that type of work since
his last employment and whether he could work nights, and
were reassured on that score, which was important
because, as Fisher testified, Respondent "really did need
help" at that time. The meeting concluded with Fisher's
promise to have Vice President Wolfbauer get back to him.
As of that time, according to their respective testimony,
Hankins expected to be hired and Fisher intended to make
such a recommendation to Wolfbauer. 14
Fisher, however, according to his testimony, "didn't get
the time" to contact Wolfbauer until the following
afternoon, August 13. Meanwhile, on the morning of the
13th, Wolfbauer had called Hankins and, according to
Hankins, told him that he had quit and been replaced and
there was no reason to take him back. Hankins testified
that Wolfbauer then abruptly hung up.'5 Wolfbauer's
version of this call was that he told Hankins he would not
be hired because of his unreliability as manifested by his
having quit on short notice at a time when his help was
needed. In any event, Hankins called Wolfbauer back,' 6
and told Wolfbauer that other men who had quit had been
rehired and he wanted to know why he would not be
considered; and, according to Hankins, Wolfbauer replied
he did not wish to waste more time discussing it, that he felt
that Hankins might have "other motives" for wanting to
work there. 7 Hankins said he had not been responsible for
the 1969 walkout, the other men having merely chosen him
as their spokesman, whereupon Wolfbauer admittedly
asked, "didn't they ask you to be their leader, and he said
yes."
According to Wolfbauer's direct examination, his judg-
ment not to hire Hankins had followed receipt of, and
rested upon, Glavin's report that Hankins had quit after
working there about 6 months; Neck's report about
Hankins' involvement in the 1969 walkout and that the
quit had been on a couple of hours' notice, thereby
disrupting the work schedule; Bridgeman's report of his
initial phone conversation with Hankins in which Hankins
had allegedly protested against having to file a new
i5 Hankins had tned to get Wolfbauer on the phone about twice between
their earlier conversation and August II but had been unable to reach him.
Wolfbauer testified on cross-examination that the purpose of such calls was
"to tell him that I had looked over his file and that I would not give him his
job back." Despite suggestions by counsel on redirect that this determina-
tion was merely "some tentative conclusion" or "some decision," Wolfbauer
acknowledged that he had indeed "made up [his I mind" by that time.
iS Hankins testified it was within 10 minutes of the first call. Wolfbauer
testified it was in the afternoon.
17 Wolfbauer testified that Hankins opened the conversation by saying
he had been "unprepared" for Wolfbauer's earlier call, and that this raised a
suspicion in Wolfbauer's mind that Hankins was taping the conversation
Hankins testified that he had not used "those words" or anything to the
effect that he was not prepared for the earlier call but that he did say that he
wanted some explanation beyond Wolfbauer's curt statement.
159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
application, and Bridgeman's report of Lane's statement
about taped conversations; and the events of August 1 I.1
Indeed, Wolfbauer testified specifically that the events of
August 11 affected his decision. But while admitting that
Fisher's adverse recommendation on the 12th had thus
confirmed his judgment19 Wolfbauer testified that he did
not know what he would have done if Fisher had made a
favorable recommendation.20 In disavowing either the
walkout or Hankins' going to the Board as a motive for
denying his rehire, he testified as follows in respect to the
walkout:
Q. What, if any, effect did that have on your
decision to hire or not hire Mr. Hankins?
A. I couldn't even remember the incident. I had to
keep recalling it, and I had to think back in time. It was
an incident where it was not significant, and I wasn't
even involved in it.
However, Wolfbauer acknowledged on cross-examina-
tion that in his September 20 affidavit given to the Board
agent during the investigation he had stated as the only
reason for not hiring Hankins that "he had quit without
notice and was unreliable"; and that in fact, as indicated
supra, his decision had been reached prior to learning of
Hankins' visit of August 11 and without the benefit of
Fisher's adverse recommendation but was based on what
Neck had told him which included Hankins' involvement
in the walkout.
When Fisher did get around to seeing Wolfbauer on the
afternoon of the 13th, testified Fisher, Wolfbauer told him
that he had turned Hankins down, and Fisher made no
mention of his change of mind as a result of his meeting
with Hankins on the 12th because he felt that Hankins'
rejection was now "a completed matter." Hankins thereaf-
ter delivered a letter to Fisher requesting reconsideration of
his application in preference to his pressing the instant
proceeding because, according to the letter, "All I wanted
was a job, I don't want to cause any unnecessary trouble or
time." Fisher transmitted the letter to the main office, but
Hankins never received a response.
B. Concluding Findings
1. The merits
This case turns on credibility, I find Hankins' testimony
more credible than that of Respondent's witnesses. I was
particularly impressed with the fact that, notwithstanding
18 On cross-examination Wolfbauer testified he had learned of these
events from Bridgeman. He was confused, however, as to the number and
times of his conversations with Bridgeman, and he ultimately admitted that
he had not talked with Bridgeman on the 11 th. Wolfbauer acknowledged on
redirect examination that the information concerning the events of the I 1th
had come from Fisher on the 12th.
'9 On redirect Wolfbauer testified that if Hankins had been hired he
would have had to work directly under Bridgeman.
20 Fisher testified that Respondent had never rejected an applicant he
had recommended for hire.
21 I note, specifically, the failure to call Neck to dispute Hankins' version
of the notice that he was quitting in 1969. The failure to impeach Hankins'
denial that he was collecting unemployment insurance; the absence of
evidence to contradict Hankins' testimony-indeed Fisher's corroboration
thereof-that no other employees were present when Hankins acted as the
employees' spokesman during the 1969 walkout; the failure to produce Lane
minor variances, he essentially clung to his account despite
a cross-examination repeatedly marked by insinuations of
falsehood based on innuendo usually signaling forthcom-
ing evidence from Respondent that never eventuated.2 1 In
contrast, as indicated by the foregoing factual reciting, not
only is the testimony of each of Respondent's witnesses
inconsistent in material respects with that of his associ-
ates,22 but Wolfbauer's testimony in particular is a mass of
internal contradictions in its essentials. That Respondent
engaged in no other unfair labor practices is a factor to be
considered in determining the likelihood of its having
committed the instant ones. But unless Hankins' clear
testimony is discredited, that Respondent's agents indicat-
ed their displeasure over his participation in the walkout
and gave him impermissible reasons for rejecting his job
request, the violations must be found. On the entire record,
I see no basis for not believing him. On the contrary, I find
corroborative of his version some elements in Respondent's
own testimony.
Respondent's contention that Hankins' reliance was
upon an incident long forgotten does not fit this record.
Despite the fact that the walkout occurred in 1969, Fisher
remembered it, including Hankins' role as spokesman and
the details involved in resolving the underlying dispute.
And Fisher's recollection was apparently one of resentment
over the resort to the walkout-"They didn't have to go as
far as they did." Moreover, Neck's recollection of the event
was sufficient for him to mention it to Wolfbauer, if indeed
Wolfbauer needed reminding. In response to Wolfbauer's
question whether Neck knew Hankins, according to
Wolfbauer's own testimony, Neck recalled just three
things: Hankins had done good work in the screw machine
department; he "had been involved" in the walkout; and
he had quit work on a couple of hours' notice. When, in
their second conversation of August 13, Hankins sought to
belittle his role in the walkout, Wolfbauer admittedly said,
"Didn't [the other employees] ask you to be their leader?"
In light of this, I find Wolfbauer's protestations that he
"couldn't even remember" the walkout and that the
incident "was not significant" less than compelling. This
conclusion is buttressed by the numerous other inconsis-
tencies in Respondent's position and evidence.
Wolfbauer started out by professing to have relied on
every factor that might conceivably have furnished ground
for rejecting Hankins. Only when confronted with his
affidavit 23 to the effect that the single reason he had given
Hankins was his having quit on short notice did Wolfbauer
concede that at least some of the factors initially cited
to impeach Hankins; the utter lack of substance to the alleged suspicion
concerning the taping of phone conversations-not only does the very fact
that Hankins mentioned the incident to Lane tend to rule out any basis for
suspicion in view of the ill feeling between them, but if there had been some
insidious purpose, it is hardly likely that Hankins would have had
Bridgeman call him back at his own home rather than at his friend's or in
lieu of Hankins' calling Bridgeman again.
22 1 note especially the events of August 12, including the discrepancies
between Bridgeman's testimony and that of Fisher as to the occasion for
informing Fisher of the occurrences of the 11th, and the time of their
meeting with Hankins. From Bridgeman's account, it would have been
impossible for Fisher to have contacted Wolfbauer prior to meeting with
Hankins, as Fisher testified and Wolfbauer implicitly confirmed.
23 Made barely 5 weeks after the event and some 5 months before the
hearing herein.
160
SAVAIR MFG. CO.
could not possibly have entered into his decision which had
indeed been reached prior to the occurrence of these
events. And yet, Respondent's brief not only continues to
cite factors which Wolfbauer's testimony ultimately disa-
vowed but even adds others which Wolfbauer had never
claimed to rely on.24 Thus, nowhere in Wolfbauer's
testimony does he suggest a linkage between the decision
not to hire and Hankins' 6-year absence from the trade, or
Hankins' alleged statement that he had been unable to get
along with Popek, or the fact that his hire would have put
him under Bridgeman,2 5 or that Lane may have thought
Hankins lazy and unreliable and had allegedly said he
would never work with Hankins. 26
Nor can I accept Fisher's testimony concerning his
failure to carry out his averred intention to revise his
recommendation to Wolfbauer following the meeting with
Hankins on August 12. Wolfbauer had never ignored a
recommendation from Fisher to hire an employee. Fisher
had every reason to believe 1hat Wolfbauer had acted in
this case, at least in part, on the basis of his recommenda-
tion. To treat Wolfbauer's report that he had rejected
Hankins as afait accompli, despite Fisher's knowledge that
Wolfbauer had had his adverse recommendation before
him when he telephoned Hankins, I find too strange to
credit, particularly in view of Fisher's awareness that
Respondent "really did need help" at that time. Fisher
certainly had nothing to lose by simply informing Wolf-
bauer that "the only reason" for his adverse recommenda-
tion had vanished. Indeed, in all the circumstances, he
would have been uncharacteristically derelict in his duty to
Respondent by withholding the new information. I believe
either that he did in fact convey it before or after
Wolfbauer's call to Hankins, but that it was decided to
stand by the decision not to hire Hankins; or alternatively,
that he did not transmit the information because he knew
that it could not have caused Wolfbauer to change his
mind. But if the reason for Hankins' rejection had merely
been his precipitous quit, as Wolfbauer testified, Fisher
might have reminded him of his having once rehired, even
over Fisher's objection, "a man [who] had been fired
sometime before that for not reporting for work, staying
away from work, and he was warned a number of times."
I credit Hankins, particularly noting the absence of
testimony by Neck, that Hankins gave fair notice of his
quit in 1969 and that Respondent had no reason to believe
24 Respondent's propensity for exaggeration is also manifested elsewhere
in its brief, as e.g., by its attribution to Hankins, "before he has any
indication that he may be rejected," of "frequent contacts with NLRB
staff," notwithstanding his first contact with the Board was precipitated by
Bridgeman's phone call on August 2, telling Hankins not to bother filling
out an application because he was not wanted; or by its reference to Glavin,
still Respondent's secretary, as "a totally independent witness," and again
"an independent and obviously unbiased witness" (ibid).
25 This was mentioned for the first time on Wolfbauer's redirect
examination, and, as stated, without making the connection. If Wolfbauer
had claimed this as a basis for rejecting Hankins, the record does not
support it. Bridgeman and Hankins had composed their differences on the
12th, and there is no evidence that Bridgeman disagreed with Fisher's
expressed view that Hankins should have been hired.
26 I specifically discredit the alleged statements that Lane would never
work with Hankins. I note not only Respondent's failure to call Lane as a
witness but the fact that it was Lane who informed Hankins of the
availability of the job in question. I credit Hankins as to this, as I also do his
testimony that Lane told him to fill out the application. I deem it a fair
otherwise. But even if I did not credit Hankins in this
regard I would find Wolfbauer's declared reason for not
hiring him a screen for the real reasons, at least one of
which I find to be his leadership role in the walkout. This
after all, had been a subject to Hankins' conversations with
Respondent's entire hierarchy, and the fact that Hankins
may have been the one to raise it does not detract from its
significance. 27 Moreover, Neck had mentioned the walkout
to both Bridgeman and Wolfbauer when they consulted
him about Hankins' application.2 And Bridgeman admit-
tedly told Hankins he did not want to hire "a problem." I
credit Hankins' testimony that Bridgeman said "labor
problem."
I further find that Respondent's determination not to
hire Hankins was motivated in part by Hankins' resort to
the Board, as evidenced by Fisher's and Bridgeman's
remarks to Hankins on August 12. Wolfbauer must also be
deemed to have known to Hankins' invocation of Board
help since Hankins had advised Bridgeman, as early as
August 6, of information he had already obtained from the
Regional Office. Respondent's contention that it "had no
knowledge or belief that [Hankins] would file charges"
with the Board is sheer nonsense. It rests on two points,
first, that "as of August 31," Hankins undated letter to
Fisher "reinforced his earlier statements that he was not
threatening to file charges . . . and would not do that
.... " (ibid),' and second, that Hankins "by his own
admission never, at any time referred to the NLRB but
rather to the 'FAIR LABOR RELATIONS BOARD,' "and that in
view of the proliferation of government agencies "and
particularly various labor law boards including the agency
administering the Fair Labor Standards Act," the General
Counsel failed to meet his burden in this regard. As to the
first point, the so-called "earlier statements" consist of a
single statement attributed to Hankins by Fisher at the
August 12 meeting which Hankins denied making. But
more important, the date August 31, which Fisher testified
he stamped on the letter, is virtually incredible on its face
in the context of this case. Not only do the contents of the
letter support Hankins' testimony that it antedated the
charge,29 which was filed on August 18, but the service of
inference that, despite the animosity between them, Lane's concern for the
welfare of his daughter's family was an ovemding consideration. In any
event, it does not appear that Wolfbauer knew anything whatever about
Lane's opinion of Hankin's reliability or Lane's alleged unwillingness to
work with Hankins.
27 Indeed, despite Hankins' testimony that he raised the matter with
Wolfbauer, the latter testified that he might have raised it himself
28 At least one employee had also mentioned the walkout to Bndgeman.
29 The letter reads in full as follows:
Dear Mr. Fisher,
In regards to my refused employment at Savair.
I do not want to get into a personality assination contest with
anyone at Savair. I have talked with the people at the Fair Labor
Relations, and they have talked with the company attorney. The Fair
Labor Relations wants me to file an affirmation so that they can send
investigators to the shop.
But before I do that, I want to appeal to you again to talk with me
(Continued)
161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the charge by registered mail on August 20,30 utterly
precludes Respondent's contention. Respondent's second
point enjoys no greater credence. It misstates the records in
asserting that Hankins "never, at any time referred to the
NLRB," for the letter just discussed specifically mentions
the "N.L.R.B." in the same context as it does the "Fair
Labor Relations Board." To suggest, as does Respondent,
despite its background of prior litigation with the Board,
that it could have been so confused as to lack "knowledge
or belief" of Hankins' intention to invoke the protection of
this Act is nothing short of preposterous.
Accordingly, the refusal to hire Hankins, in addition to
violating Section 8(aX)() of the Act, violated Section
8(a)(4). General Nutrition Center, Inc., 221 NLRB 850, 855
(1975); Mitsubishi Aircraft International Inc., 212 NLRB
856, 866 (1974); cf. N.LR.B. v. Scrivener, 405 U.S. 117
(1972).
2. Procedural contentions
a. Section 10(b)
Respondent urges the 10(b) limitations period as a bar to
this proceeding, citing Bryan Manufacturing Co.31 The
contention plainly lacks merit. Obviously, it can have no
possible application to the 8(a)(4) aspect of the case which
involves no events antedating the 6-month period. As to
the other facet, the contention is specious. I would have
supposed it to be beyond cavil that an employer's
statement to an employee at the time of discharge (within
the 6-month period) that he is being fired for having
engaged in protected activity a year earlier is not within the
bar. That is essentially what we have here. This is at worst a
case where anterior events are "utilized to shed light on the
true character of matters occurring within the limitations
period," which the statute does not bar. Bryan, at 416. It is
most certainly not a case "inescapably grounded on events
predating the limitations period" (id. at 422) or even one
where "the evidence in fact marshalled from within the six
month period is not substantial, and the merit of the
allegations in the complaint is shown largely by reliance on
the earlier events" (id. at 421).
b. Production of statements
Equally unmeritorius is Respondent's contention that it
was not afforded sufficient time at the hearing to examine
Hankins' statements given during the course of the
investigation. At 11:25 a.m. Respondent's counsel, who
was accompanied by cocounsel, requested "approximately
2 hours" to study the three statements in question. They
totaled 40 pages, about half typewritten and half single-
about this matter. All I wanted was a job. I don't want to cause any
unnecessary trouble or time.
If you don't want to talk to me and you feel there is nothing to say.
Then I will have no other choice but to go to the N.L.R.B. If I felt
that I wasn't a good machine operator and I couldn't do the job, I
would forget the whole thing. However, I have been working on
machines since I was 16 years old. And I have the ability. And I feel the
reasons you don't want to hire me have nothing to do with my ability.
And if I can't be judged on my ability then I might as well throw
away the time I spent learning.
Because I won't be able to use it.
spaced longhand. The witness' direct examination had
consumed only 14 double-spaced pages of the typewritten
transcript of testimony. I recessed the hearing until 1 p.m.
for lunch and counsel's examination of the statements, and
at his request authorized him to remove the statements
from the hearing room for this purpose. Upon reconvening
at I o'clock, counsel requested "additional time." I offered
him 5 minutes and denied his request for "at least another
half hour" which he further stated was "only minimal."
Compliance with such tactics can result only in stopping
this agency from conducting its legitimate business.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6). and (7) of the Act.
2. Respondent violated Section 8(a)(1) and (4) of the
Act by refusing to hire Joseph Gilbert Hankins on and
after August 2, 1976, because he had engaged in activity
protected by Section 7 of the Act and sought to invoke the
Board's jurisdiction.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
In order to remedy the unfair labor practices found
herein, my recommended Order will require Respondent to
cease and desist therefrom and, because the violations here
go to the very heart of the Act, from violating the Act in
any other manner. Moreover, in order to effectuate the
policies of the Act, my recommended Order will require
Respondent to offer employment to Hankins in the job he
applied for or in a substantially equivalent position, and to
make him whole for any loss of earnings he may have
suffered as a result of the discrimination against him by
payment to him of a sum of money equal to that which he
would have earned from August 2 to the date of a valid
offer of employment, less net earnings during such period
to be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). I shall also
recommend the usual posting of notices.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 32
The Respondent, Savair Mfg. Co., Warren, Michigan, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
Thank you,
Joseph G. Hankins
30 Evidenced by the return receipt.
31 Local Lodge No. 1424, International Association of Machinists, AFL-
CIO [Bryan Manufacturing Co.] v. N.L R. B., 362 U.S. 411 (1960).
32 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
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.
162
SAVAIR MFG. CO.
(a) Denying employment to any applicant for engaging
in any activity protected by the National Labor Relations
Act.
(b) Discriminating against any applicant for employment
to discourage the filing of charges or giving evidence under
the National Labor Relations Act.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Joseph Gilbert Hankins employment in the
position for which he applied or in a substantially
equivalent position, and make him whole for any loss of
pay he may have suffered by reason of the discrimination
against him in the manner set forth in the section of this
decision entitled "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,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its plant in Warren, Michigan, copies of the
attached notice marked "Appendix." 33 Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to ensure that the 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
Respondent has taken to comply herewith.
33 In the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT deny employment to any applicant for
engaging in any activity protected by the National
Labor Relations Act.
WE WILL NOT discriminate against any applicant for
employment to discourage the filing of charges or
giving evidence under the National Labor Relations
Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed in Section 7 of the Act.
WE WILL offer Joseph Gilbert Hankins immediate
employment with backpay.
SAVAIR MFG. CO.
163