Leslie Metal Arts Co., Inc.

304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leslie Metal Arts Company, Inc. and International Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America (UAW). Case 7-CA-8153 September 22, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On April 15, 1971, Trial Examiner Owsley Vose issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices alleged in the complaint, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Decision and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 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 Trial Examiner and hereby orders that Respondent, Leslie Metal Arts Company, Inc., Grand Rapids, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified herein.I 1 In In 9 of the Trial Examiner's Decision, substitute "20" for "l0" days TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE OWSLEY VosE, Trial Examiner: This case was heard at Grand Rapids, Michigan, on January 20, 1971, pursuant to charges filed on August 18 and September 15, 1970, and a complaint issued on October 28, 1970, alleging among other things that the Respondent had discharged Oswaldo Gutierrez in violation of Section 8(a)(3) and (1) of the Act. After the close of the hearing the Respondent filed a brief with the Trial Examiner which has been carefully considered. Upon the entire record and my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Michigan corporation, is engaged at five plants in Grand Rapids, Michigan, in the manufacture, sale, and distribution of steel stampings and related products. During the calendar year 1969, a representative period, the Respondent had more than $50,000 worth of materials shipped to its Grand Rapids plants from out-of- state sources, and during this same period shipped to out- of-state destinations in excess of $50,000 worth of manufactured products. Upon these facts, I find, as the Respondent admits, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Discharge of Oswaldo Gutierrez in Violation of Section 8(a)(3) and (1) of the Act 1. Background The UAW has conducted organizing campaigns among the employees of the Respondent's various plants on several occasions in the past, including its 32nd Street, S. E., plant, the only plant involved in this case. Elections were held by the Board in 1966, 1967, and 1970. In February 1970 the Union mailed out to employees of the 32nd Street plant a so-called "feeler letter" which was designed to ascertain the extent of employee interest in further organizing efforts. The response was not encouraging and the UAW did not engage in further efforts at this time. 2. The hiring of Gutierrez; his employment record Gutierrez filled out an application for employment at the 32nd Street plant on March 9, 1970. Gutierrez' application revealed that he previously had worked at two plants which his interviewer, Donald Huizenga, the Respondent's personnel director, testified were known to him to be UAW plants. During the interview Huizenga asked Gutierrez how he felt about unions. When Gutierrez replied that he could 193 NLRB No. 44 LESLIE METAL ARTS CO., INC. save the union dues, Huizenga went on to say that "we don't want no union here we don't have no problems."' After being interviewed further by Charles St. Charles, the toolroom foreman, concerning his prior experience, Gutierrez was told to report for work on March 11 to Foreman St. Charles. Gutierrez was hired as an A class machinist at $3.61 per hour and was assigned to work under Assistant Foreman Ed Bryant. Early in June Gutierrez was assigned to do die repair work, which required greater skill than the machinist A work which he previously had been doing. On July 6 Gutierrez was formally transferred from machinist A work to die repair and given a 10 cents per hour wage increase. On August 4 Gutierrez was given a further 10 cents per hour wage increase which became effective on August 10. The Respondent does not dispute the fact that Gutierrez was a "good worker" and expressly stated at the hearing that the quality of Gutierrez' work was not a factor in his discharge. 3. Gutierrez' role in the 1970 UAW organizing drive In April Gutierrez suggested to two of his fellow workers, Al Bishoff and Ed Czarnecki, that having a union in the plant would give the men greaterjob security and increased employee benefits, and asked them whether they would help him organize a union. Both employees agreed to help. Thereafter, Gutierrez visited the UAW office in Grand Rapids and requested assistance in organizing the employ- ees of the Respondent's 32nd Street plant. Walter Schultze, an international representative of the UAW, later contact- ed Gutierrez, who arranged for a meeting with Schultze at his home. Gutierrez, Bishoff, and Czarnecki attended. Schultze gave the men information about organizing their fellow workers. Gutierrez immediately commenced talking with his fellow employees on the parking lot about organizing a union At a meeting at the UAW office in May, all of the employees present-14 or 15 in number-signed UAW bargaining authorization cards Additional cards were given the employees present for distribution among their fellow workers. Accompanying the authorization cards were postage prepaid envelopes addressed to the UAW office. Gutierrez himself passed out 50 or more cards to employees and personally turned over to Schultze 5 or 6 cards. As Schultze testified, Gutierrez was more or less his principal contact on behalf of the employees on both shifts. A meeting of interested employees was held at the UAW office on Saturday afternoon, August 8. Gutierrez was unable to attend because he was scheduled to work overtime that afternoon.2 At this meeting International Representative Schultze had mimeographed forms for circulation on which the employees signing authorized the UAW to use their names in a letter to the Respondent i The above finding is based on Gutierrez' credited testimony Huizenga , when first asked whether he had any discussion with Gutierrez about unions, answered as follows "Yes, I don't recall the exact words but we often ask applicants whether or not they have a preference to work in a union or non-union company " Later on in his testimony Huizenga denied that he told Gutierrez that the Respondent did not want a union . Huizenga then elaborated as follows - "I indicated to the man that this is a nonunion 305 advising it that they were members of the UAW organizing committee in the plant. Because of the absence of Gutierrez, Schultze gave Czarnecki a copy of the form with a request that he give it to Gutierrez. Czarnecki turned over the form to Gutierrez on the parking lot before work on the following Monday morning. Gutierrez promptly signed his name on the first line and had Czarnecki sign immediately below. Then Gutierrez asked two other employees to sign. On the following morning, Tuesday, August 11, Gutierrez took the form into the plant and solicited four or five girls to sign before the workday commenced. At lunchtime that day Gutierrez asked Joe Simon, Chico Rivera, and Jesse Talamontez to sign the organizing committee form. Simon asked Gutierrez to leave the form with him, saying that he would return it during breaktime that afternoon. Simon failed to do so; however, another employee, Gosuth Talamontez, returned the form to Gutierrez after work that day. None of these employees had signed the form. Later Gutierrez turned the form over to UAW Represent- ative Schultze together with two other forms which others had circulated. As found below, on the following Monday Schultze sent the Respondent a list of the names of the employees on the organizing committee. The names of 40 employees were listed. 4. Gutierrez' discharge on August 15; the incident preceding it On Tuesday morning, August 11, Assistant Foreman Ed Bryant gave Gutierrez oral instructions to make four pins I inch in diameter. Gutierrez completed the pins and left them on Bryant's bench. Later that morning Bryant came up to Gutierrez and had the following discussion with him, as Gutierrez testified: He say "what size pin I tell you to cut for me?" I say, "four pins one by eight and a half." He said, "Dammit, I told you four pins one by ten and a half." He says, "I want four other pins and I want it right now." I said "Okay, you told me one by eight and a half before." He says "I told you one by ten and a half, and, dammit, go and do it." Gutierrez completed the pins promptly and left them on Bryant's bench. After lunch Bryant went over to Gutierrez' bench to give him a new assignment. According to Gutierrez, he asked Bryant at this time "why he was picking at me." While the evidence is conflicting concerning the details of the discussion which followed, the record is clear that what started out as an angry interchange between the two men ended up "amicably," 3 with Bryant apologizing to Gutierrez for pushing him too hard and Gutierrez telling Bryant that he was a "pretty good boss," much better than some he had had. company and that we are of the position that we offer job security, job rates and benefits that are superior to many other plants." 2 This was the only Saturday afternoon in the entire 5-month period of Gutierrez' employment that he was required to work on a Saturday afternoon Gutierrez performed only his regular duties on this occasion. 3 This is the Respondent's charactenzation of the tone in which the discussion ended, as stated on p 5 of the brief. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The only direct testimony concerning the details of this episode is that of Gutierrez. Bryant, the only other witness to this incident, was not called as a witness, although he was still in the Respondent's employ and actually working at the plant on the day of the hearing. However, considering all of the evidence in the case, I have concluded that I cannot accept Gutierrez' undenied testimony about this incident in toto without question. The facts set forth below are based in part upon Gutierrez' testimony and in part upon my conclusions based upon the evidence discussed below concerning the events of August 14, the day before Gutierrez' discharge. I find that after again being reprimanded by Bryant (Bryant had also spoken to him on the day before about some work he had done), Gutierrez became fearful of losing his job and angrily made some sort of a threat to Bryant if he caused Gutierrez to lose his job. I cannot determine upon the present record whether Gutierrez threatened at the outset to cut Bryant's throat if Bryant caused him to lose his job, as the hearsay evidence concerning this incident indicates, or whether the reference to cutting Bryant's throat came out later, after Bryant noticed a knife in an open drawer of Gutierrez' toolbox and asked "you got that [knife] to cut my throat," as Gutierrez testified.4 The precise words used by Gutierrez are immaterial, for I am convinced that at the outset Gutierrez did make a serious threat of some sort against Bryant. This is indicated by Gutierrez' own testimony that Bryant told him "dammit, you don't scare me . . . I have been threatened before and I don't scare that easy." Gutierrez' subsequent admission that he told Gary Timmermans, a fellow employee, shortly after the incident that he had told Bryant that he was going to "bury" him tends further to confirm my conclusion that Gutierrez did threaten Bryant in some fashion during the incident. I need not determine the exact nature of Gutierrez' threat to Bryant for it is sufficient for the purposes of this case for me to find, as I do below, that regardless of the exact words used by Gutierrez to Bryant on this occasion, it was later reported to the Respondent's top officials along with other facts concerning this incident that Gutierrez had threatened to cut Bryant's throat if he caused Gutierrez to lose his job. Continuing now with the facts concerning the incident between Gutierrez and Bryant on August 11. After the initial interchange between the two men-Gutierrez' threat and Bryant's response, in effect, "Don't threaten me"-the men calmed down and had a rational discussion of their respective positions. Bryant, after indicating that he 4 The relevant parts of Gutierrez testimony about this incident are as follows Q. Tell us what happened then A. I asked Bryant why he was picking at me Q What did he say? A. He get mad. Q. What did he say'i A He says "listen, dammit, you don't scare me" He says "I have been threatened before and I don't scare that easy" I said "I don't threaten you, I don't try to scare you, I just ask you why you are picking on me why don't you leave me alone, get off my back" Q. What happened after you said that? A. My toolbox drawer was open Q Your what9 A My toolbox drawer was open and there was a knife laying up in there in the toolbox and Bryant see the knife and he say- thought Gutierrez' approach was wrong, listened to Gutierrez' statement that he was a willing worker, agreed, and went on to explain that when he criticized Gutierrez' work he was trying to help him rather than to pressure him.5 Bryant went on to say, as Gutierrez testified, that "I know I have been pushing you too hard . . . but I have been under a lot of pressure .... I have got four automatic machines broke down," "they were not producing and it cost the Company fifty dollars an hour or more," and "I am sorry." At the end Gutierrez told Bryant that he "was a pretty good boss," much better than others he had had .6 The discussion ended on this amicable note. Sometime after the incident Gutierrez told Joe Simon and two other Spanish-speaking employees about the incident. According to Gutierrez, he related to them the facts as set forth in the footnote above containing Gutierrez' testimony about the incident. Assistant Foreman Bryant apparently did not mention this incident to anyone either in management or among the rank-and-file employees. Bryant's immediate supervisor, Foreman St. Charles, remained unaware of the incident until it was called to his attention on Friday, August 14, under the circumstances found below. On Friday afternoon, August 14, Plant Superintendent Southway called Foreman St. Charles into his office and informed him that he had heard that Gutierrez had threatened an employee and asked him to investigate. When St. Charles inquired as to the identity of the man threatened, Southway said that he thought that Felix Ambrose was the one. St. Charles left Southway's office and spoke to Ambrose about the matter. Ambrose said he knew nothing about any such incident. St. Charles then asked Assistant Foreman Bryant whether he had any information about such an incident. Bryant said that he had been threatened by Gutierrez. When St. Charles asked for the details, Bryant related as follows, according to St. Charles' testimony: ... he said he had given Ozzie ajob making some air pins I believe it was and he had made them short or something, got the wrong dimensions , and he called it to Ozzie's attention that he had done this, that they were short. One thing led to another and he said that Ozzie pulled open the drawer of his toolbox and there was a knife there and he said, there must have been some words exchanged, and he said something to the effect that he would cut his throat if he bothered him anymore . . . . . He said "what the hell is the knife doing there " he said "why you keep the knife in there, to cut my throat9" I said, "it don't be a bad idea" and I shut the drawer closed. Q. Was the knife in your hand9 A. No he said "what the hell is the knife doing in there" and I said "that knife has been there a long time" and he said "you got that to cut my throat," and I said "it don't be a bad idea" and I pushed it with the back of my hand because I had something in my hand I pushed the drawer closed. S This finding is based on notes made by Personnel Director Huizenga concerning a statement made by Bryant during the Respondent's investigation of the Gutierrez-Bryant incident it is discussed more fully below. s The above finding is also based on Personnel Director Huizenga's notes concerning Bryant's statement made during the investigation LESLIE METAL ARTS CO., INC. 307 or made anything of this incident or I believe got him fired was his actual words. St. Charles then returned to Southway's office and reported his findings . Southway summoned Personnel Director Huizenga to his office. After a discussion among the three men it was decided to obtain Bryant's version of the incident firsthand. Bryant came in the office and made a rather detailed report of the incident . Personnel Director Huizenga made some longhand notes concerning Bryant's report which he dictated the following Monday. According to Huizenga's notes, Bryant first related that he had reprimanded Gutierrez on Tuesday morning for making some pins too short. Huizenga's dictated statement concerning Bryant's report continues as follows: Later that afternoon he [Gutierrez] called me over to his bench and said, "I'm gonna cut your throat if you get me fired from this job." Then he showed me his knife that he had in his tool box . He said, "I don't care what happens to me! You can cut my throat or I will cut yours." I [Bryant] said, Forget it, Ozzie, I get too much out of life to do anything so stupid." Then he told me that he had never been fired for lack of working meaning that he did not have a lack of willingness to work. I agreed with him on that but told him that his work was very sloppy. Then I asked him why he felt that way and he said he didn't know. I told him that I was trying to help him rather than pressuring him. I explained to him that the reason I talked to him the day before was because I had had a complaint from the Foremen in Press Room Number 2 on three items of prog die repair that related to the quality of his work. Then he told me I was a pretty good boss and said that he had had some real pricks for bosses. After Bryant made his statement he was dismissed and Gutierrez was summoned to Southway's office. Gutierrez was informed that the Company had information that he had threatened to cut Bryant 's throat with a knife and was asked what he had to say about it. Gutierrez admitted having had an argument with Bryant on Tuesday, said he had a knife in his toolbox which he had had for a long time, but denied threatening Bryant with a knife. Bryant was then called into the office where he was again asked about the incident in the presence of Gutierrez. Bryant related that Gutierrez had told him that if he got him fired he would cut his throat. Gutierrez declared that this was not true. Huizenga told Gutierrez , "Ozzie, we have got to make a decision." Gutierrez asked whether he should report on the following morning and was told that he should. At no time during the discussions between management officials and Gutierrez prior to his discharge was any mention made of the UAW or of any union activities of Gutierrez. Nor had Gutierrez been spoken to previously by anyone in management about his UAW activities. After Gutierrez and Bryant left the office it was suggested that Joe Simon knew something about the Gutierrez-Bryant incident. (Simon was the employee whom Gutierrez had asked to sign the organizing committee letter and who after keeping the letter one afternoon had refused to sign .) Simon was summoned to the office and questioned about the incident. Simon refused to talk about it. Another employee, Leonard Packard, was also questioned about the incident, but he did not have any firsthand information about the incident. Huizenga and Southway decided to discuss the matter with General Manager Flynn. They went to Flynn's office and discussed the incident with Flynn. Neither Bryant nor St. Charles was present during this discussion. It was decided that Gutierrez should be discharged and Flynn instructed Huizenga to ask St. Charles to inform Gutierrez of his discharge the following morning. Huizenga and Southway then looked up Bryant and asked him why the incident with Gutierrez had not been reported. According to Huizenga, Bryant was given an oral reprimand for failing to report this incident. A few minutes after Gutierrez reported for work the next morning, Saturday, August 15, St. Charles went over to Gutierrez' bench and told him, according to Gutierrez, "I am sorry but they called me last night to tell you you were through . . . . I am sorry this has to happen this way .. . you are a good worker but they don't want a union here and you are through." St. Charles denied saying anything to Gutierrez about a union at the time he discharged him. St. Charles further denied any knowledge of Gutierrez' union sympathies at the time of his discharge . For the reasons discussed below I credit Gutierrez' testimony concerning the discharge conversation. A few minutes later, as he was being escorted out of the plant by St. Charles and Bryant, Gutierrez stated, in response to inquiries from several of his fellow workers as to what had happened, "they framed me." Early on Monday, August 17, the UAW mailed a letter to the Respondent containing an alphabetical list naming the 40 employees who were members of the UAW organizing committee at the plant. Gutierrez was one of the employees listed. This letter was posted on the Respondent's bulletin board. On August 18, the UAW handed out the following mimeographed letter to the employees at the plant: TO: ALL PRODUCTION AND MAINTENANCE EMPLOYEES LESCOA-32ND STREET PLANT Dear Friends: I have handbilled your plant several times but because of layoffs in the plant we have held off on a full blown drive. Most of the people on days and many of you on nights know Oswaldo Gutierrez who is known as `Ozzie'. Well, `Ozzie' was a fellow employee of yours until a certain so-called leader tried to make it look like `Ozzie' had made a threat on his life. Actually the only thing Ozzie said to this so-called leader was `Get off of my back'. When this got to the office there was more added to it to make it look like Ozzie had threatened him. Of course, this whole `frame-up' could not have had anything to do with the fact that Ozzie was getting names on a sheet of paper for an In-Plant Organizing Committee for the UAW. Ozzie did not think that he had to hide the fact that he wanted a union to represent him. After all, the laws of the land say that an employee had a right to join a labor organization of his own choice or to help organize such a union without interference from the management, but apparently he 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was wrong about the management of Lescoa, for Saturday morning he was told that he was all done. He was told by his supervisor that he was a good worker but that they did not want a union there. These are the true and simple facts of this case as told to me by Ozzie and I have proceeded to file an Unfair Labor Practice Charge against Lescoa in his behalf. I think this should be a very good example of why you, the employees of Lescoa, need a union The same thing could happen to any employee. The management holds a "drum head" hearing and then they make the decision of life or death regarding your job, and no matter how right you are some stooge, whom the Company wants to believe, can cause you to lose your job. Remember, unless you have a union to represent you, yourjob can go the same way that Ozzie's did. Oh, I am sure that Ozzie will once again be an employee of Lescoa, but only because he was working for what he thought was right, for himself and everybody, and he has the UAW to help him process his grievance with Lescoa through the NLRB. If you have not already done so, sign the enclosed card and send it in today. Don't forget you could be next to come into disfavor with your boss who might also trump up charges against you. Sign the enclosed card and show your support for your fellow worker who has already been discriminated against. Check the enclosed pamphlet so that you will know your rights. Don't let any employee tell you different. Stick up for your lawful rights and sign your UAW Authorization Card today. On the following day the Respondent replied to the UAW's letter as follows: TO: ALL EMPLOYEES Yesterday the UAW handed out a letter concerning the recent firing of one of our employees. That letter contains a number of false statements . It also makes several vicious, untrue accusations about the company. We do not want to dignify such disgraceful tactics by arguing with the UAW. Our employees already know that this company does not fire people without cause. You can be sure that we had a very good reason for firing Mr. Gutierrez and it had nothing to do with any so- called union matters. You can also be sure that we will welcome a chance tojustify our actions to the NLRB. The facts of his dismissal are these: Prior to August 12, 1970, Oswaldo Gutierrez was very careless in his work and the Foreman had some complaints about his work. On Wednesday, August 12th, he made two costly mistakes which the Foreman told him about and requested that he work more carefully. Later Oswaldo Gutierrez called the Foreman over to his bench and said, "I am going to cut your throat if you get me fired from this job." He then showed him a knife he had in his tool box. This episode was brought to the attention of management and, after a meeting of representatives of management, the parties directly involved, and others, Mr. Gutierrez was subsequently discharged. Doesn't this present a different picture than that of an employee Just telling a Foreman to "Get off my back." We know our employees can see what the UAW is really trying to do. They have no real issues to talk about at Lescoa so they are trying to create some. What does this kind of thing say about the sincerity of these people? We are confident that our employees can see through this shabby tactic. We are also confident that none of you will be misled into signing one of those "harmless" little cards. REMEMBER THIS-Do not sign a card unless you really want this union to take over your affairs. After this episode, ask yourselves whether you really want to have anything to do with this union at all. Donald B. Huizenga Personnel Director At the hearing on January 20, 1971, St. Charles testified as follows regarding Gutierrez: .. . he worked for me and he worked hard. He was a good worker. The only time I had any problems was he made a few mistakes and everybody does. He worked fast and he worked hard and he was a good man as far as working goes. It was solely on the basis of this one incident. I would never have fired the man. I had no intention to. He gave me no trouble. He was a hard working man all the time. I was very surprised about the whole thing. 5. The Respondent's contention ; conclusions The Respondent contends that Gutierrez was discharged solely because of his threat to Bryant on August 11. It urges in addition that it had no knowledge of Gutierrez' support of the Union until it received the UAW's letter of August 17 naming Gutierrez as one of the members of the UAW organizing committee. The Respondent relies on the testimony of Foreman St. Charles and Personnel Director Huizenga in support of this latter contention. However, General Manager Flynn and Superintendent Southway who were responsible for the decision to discharge Gutierrez were not called as witnesses by the Respondent and consequently there is no denial of knowledge on their part. The record shows that St. Charles and others in management had an adequate opportunity to gain knowl- edge of Gutierrez' union activities. At the time of his discharge Gutierrez had been active in support of the UAW for over 3 months. He had solicited employees to sign authorization cards on company premises on a number of occasions. The week ending August 15, was a week of extensive activity on behalf of the Union. During this period the organizing committee forms were circulated and the signatures of 40 employees were obtained. Gutierrez was active in obtaining these signatures both in the plant and on the Respondent's parking lot. Among those solicited by Gutierrez was Joe Simon, who was later questioned by management concerning his knowledge of the incident involving Gutierrez and Bryant. Highly significant on the question of Respondent's knowledge of Gutierrez' union activities is Gutierrez' testimony that St. Charles told him at the time he discharged him that "they don't want a union here." This testimony, if credited, clearly indicates that the Respondent did have knowledge that Gutierrez was active in some respects in behalf of the UAW. The conflict in the LESLIE METAL ARTS CO., INC. 309 testimony between Gutierrez and St. Charles on this point presents a very difficult credibility problem. While I have not found Gutierrez wholly reliable-his testimony was not forthright in connection with the threat to Bryant-it is clear that Gutierrez' testimony about St. Charles' statement that the Respondent did not want a union was not something concocted long after the event for the purposes of the trial. This was something reported to UAW Representative Schultze a day or two after the discharge, as is apparent from the statement in Schultze's letter to the employees dated August 18 that Gutierrez was told by his supervisor at the time of his discharge that "he was a good worker but that they did not want a union there." This statement alerted the Respondent at the outset to the nature of Gutierrez' case and the kind of testimony which would be required to rebut it. St. Charles' own testimony establishes that he was sympathetic towards Gutierrez and disapproved of top management's decision to discharge this hard and willing worker. Under all the circumstances, and having in mind the demeanor of the witnesses, I conclude that Gutierrez was telling the truth when he testified that St. Charles gave him the explanation at the time of his discharge that the Respondent did not want a union . I find, therefore, that the Respondent did have knowledge at the time it discharged Gutierrez that he was taking part in the current UAW organizing drive. I turn now to the question of whether Gutierrez was discharged because he threatened Bryant with a knife, as contended by the Respondent, or because of his activities in support of the UAW, as contended by the General Counsel. The salient facts may be briefly summarized as follows: On Friday, August 14, Superintendent Southway heard a rumor that Gutierrez had threatened someone. Although the Respondent had received no complaint from the employee allegedly threatened, Southway insisted that an investigation be made. The investigation disclosed that Assistant Foreman Bryant was the employee involved and that what had started out as an angry interchange, including a serious threat by Gutierrez to Bryant, was smoothed over by Bryant and ended up with Bryant apologizing to Gutierrez and Gutierrez telling Bryant that he was "a pretty good boss." Notwithstanding the fact that the incident ended on this amicable note and that Bryant, the employee involved, apparently treated the incident as a closed matter, when the incident was reported to General Manager Flynn, it was decided that Gutierrez should be discharged. Foreman St. Charles' testimony makes it clear that he did not regard this incident as justifying Gutierrez' discharge. And in view of the Respondent's failure to call Assistant Foreman Bryant as a witness, the Respondent cannot be heard to argue that Bryant desired the discharge or regarded it as necessary to maintain his authority. On the contrary the record shows that Bryant had reestablished a satisfactory working relationship with this admittedly competent employee. In these circumstances it is difficult to understand why the Respondent's top officials found it necessary to pursue a matter which had been adjusted to the satisfaction of the supervisors primarily concerned. Upon all the facts of this case I cannot believe that the action of the Respondent's top officials in magnifying as they did the Gutierrez-Bryant incident was motivated by a desire to maintain discipline in the plant. Rather, I conclude that this explanation was a cloak to conceal the Respondent's real reason for discharging Gutierrez. As the Court of Appeals for the Ninth Circuit stated in a parallel situation, where "the stated motive for a discharge is false" the examiner "can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where . . . the surrounding facts tend to reinforce that inference." Shattuck Denn Mining Co. v. N.L.R.B., 362 F.2d 466, 470. The surrounding facts of the instant case tend to support the inference of an illegal motive. The Respondent was opposed to the organization of its plant by the UAW. While the Respondent refrained from engaging in the more crude forms of opposition to the UAW such as threatening employees with discharge and the like, the record does show that when Gutierrez was hired Personnel Director Huizenga questioned him about how he felt about working in a nonunion shop, indicated to him that the Respondent did not want a union in the plant, and urged upon him the superior benefits offered by the Respondent' s nonunion plant. The Respondent's letter to the employees dated August 19 answering the UAW's letter of the previous day in which it complained of the UAW's "shabby tactics" and warned against permitting the UAW "to take over your affairs" reflects the Respondent's animosity to the UAW. Gutierrez was the instigator of the current organizing drive at the plant and, as found above, was known to the Respondent to be involved in that drive. When the Respondent's top management received word Gutierrez had been involved in some kind of an incident with another employee, it immediately started an investigation. Although its investigation revealed that the incident had ended amicably and was not regarded as significant by Bryant, the supervisor involved, the Respondent's top officials, blowing up the incident far beyond its true proportions, treated it as justifying Gutierrez' discharge. This decision was reached at the end of a week of intensified organizing activity in which Gutierrez was participating on company premises. All these circumstances, in my opinion, point to the conclusion, and I find, that the Respondent's top officials seized upon the opportunity presented by the Gutierrez- Bryant incident to rid itself of a known union supporter. Such a discharge necessarily discouraged union member- ship and violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. By discharging Oswaldo Gutierrez on August 15, 1970, the Respondent has discouraged membership in International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) by discrimination in regard to tenure, terms, and conditions of employment and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 2. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that the Respondent has engaged in unfair labor practices, my recommended Order will direct that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent discharged Oswaldo Gutierrez in violation of Section 8(a)(3) and (1) of the Act. To remedy this unlawful conduct my recommended Order will provide that the Respondent offer Gutierrez immediate and full reinstatement to his former job, or if this job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights and privileges. My recommended Order will further direct that the Respondent make Gutierrez whole for his losses resulting from the Respondent' s discrimination against him by payment to him of the sum of money he would have earned from the date of his discharge until the date on which the Respondent offers him reinstatement, less his net interim earnings . Backpay shall be computed on a quarterly basis and shall include interest at 6 percent per annum, as provided in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER? The Respondent, Leslie Metal Arts Company, Inc., Grand Rapids, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America (UAW), or any other labor organization, by discharging or in any other manner discriminating against employees in regard in their hire or tenure of employment or any terms or conditions of employment. (b) In any manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Oswaldo Gutierrez immediate and full reinstate- ment to his former job, or if this job no longer exists to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by reason of his discharge in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify Oswaldo Gutierrez, if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (c) 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, as well as all other records necessary to analyze and compute the amount of backpay due under the terms of this recommended Order. (d) Post at its 32nd Street, S.E., Grand Rapids, Michigan, plant copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.9 I In the event no exceptions are filed to this recommended Order as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions and recommended order herein shall, as provided in Section 10(c) of the Act and in Section 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 8 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 9 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT discharge or otherwise discriminate against any employee because of his union activities. WE WILL offer Oswaldo Gutierrez immediate reins- tatement with backpay. WE WILL NOT interfere with, restrain, or coerce employees in the exercise of these rights. Our employees are free to join or assist International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) or any other union and to engage in concerted activities for their mutual aid or protection. LESLIE METAL ARTS COMPANY, INC. (Employer) Dated By (Representative ) (Title) LESLIE METAL ARTS CO., INC. 311 This is an official notice and must not be defaced by Any questions concerning this notice or compliance with anyone. its provisions, may be directed to the Board's Office, 500 This notice must remain posted for 60 consecutive days Book Building, 1249 Washington Boulevard, Detroit, from the date of posting and must not be altered, defaced, Michigan 48226, Telephone 313-226-3200. or covered by any other material.