Metal Assemblies, Inc.

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