Advance Watch Co., Ltd.

National Labor Relations Board - Board Decisions

Apr 7, 1980

248 N.L.R.B. 1002 (N.L.R.B. 1980)

1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Advance Watch Company, Ltd. and Floyd V.
Wortham, Jr. and Jonathan Hickenbotham.
Cases 7-CA-15978(1) and 7-CA-15978(2)
April 7, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On November 1, 1979, Administrative Law
Judge Hutton S. Brandon issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed limited exceptions and a supporting brief, and
the General Counsel filed limited cross-exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Advance
Watch Company, Ltd., Redford, Michigan, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I The General Counsel and Respondent have excepted to certain credi-
bility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an administrative law judge's resolu-
tions 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 (3d Cit. 1951). We have carefully examined the record and find no
basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge:
This case was heard at Detroit, Michigan, on July 19,
1979.' The charge in Case 7-CA-15978(1) was filed by
Floyd V. Wortham, Jr., an individual, herein called
Wortham, on January 22, while the charge in Case 7-
CA-15978(2) was filed by Jonathan Hickenbotham, also
an individual, herein called Hickenbotham, on January
23. The order consolidating cases and the consolidated
complaint and notice of hearing in these cases issued on
March 5, alleging that Advance Watch Company, Ltd.,
I All dates are in 1979 unless otherwise stated.
248 NLRB No. 126
herein called the Respondent or the Company, violated
Section 8(a)(l) and (3) of the National Labor Relations
Act, as amended, herein called the Act, by discriminator-
ily discharging Wortham because of his efforts to initiate
a union campaign among the Respondent's employees
and his support of changes in employee terms and condi-
tions of employment and by discriminatorily discharging
Hickenbotham because of his effort also to initiate a
union campaign. The Respondent denied the commission
of any unfair labor practices within the meaning of the
Act.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consider-
ation of the briefs filed by the General Counsel and the
Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Michigan corporation with its
principal office and place of business in Redford, Michi-
gan, where it is engaged in the assembly, repair, sale, and
distribution of wristwatches and related products. The
Respondent, during calendar year 1978, received gross
revenues in excess of $500,000 and purchased and re-
ceived watch parts and other goods and materials valued
in excess of $50,000 directly from suppliers located out-
side the State of Michigan. The Respondent admits, and
I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Discharge of Hickenbotham
Hickenbotham was employed by the Respondent in
May 1977 and worked in the repair department as a digi-
tal watch repairman. He testified that, prior to his termi-
nation on January 22, he was the third most senior em-
ployee in the department consisting of 15 to 20 employ-
ees. He further testified that he had not been criticized
about his work prior to his termination and, on the con-
trary, had been told in the past that he had done a good
job on certain assigned tasks. Moreover, he related that,
in March 1978, he had been offered the job of assistant
supervisor but had rejected it.
The Respondent's employees were not represented by
a union. Although Hickenbotham testified that he had
talked to some of the employees concerning a union in
June or August 1978, no affirmative action was taken to
obtain union representation at that time. On January 4,
Wortham was hired and started work in the repair de-
partment where he became acquainted with Hicken-
botham. On January 22, before the morning break, ac-
cording to Hickenbotham, Hickenbotham, and Wortham
engaged in a conversation at Hickenbotham's work sta-
tion regarding union organization of the employees.
Hickenbotham told Wortham that Hickenbotham's wife
would be in communication with a union representative
that afternoon. Wortham replied that he too would be
getting in touch with a union representative that after-
noon to lay the groundwork for getting the union start-
ADVANCE WATCH COMPANY, LTD 1003
ed. Hickenbotham testified that he expressed to Wortham
that a majority of employees would support such a
move, and agreed to talk to some of the employees about
the union at break. Hickenbotham and Wortham ex-
changed telephone numbers so they could report to each
other the result of their contacts with union representa-
tives.
Wortham's testimony was substantially in accord with
Hickenbotham regarding their conversation on January
22, although his testimony differed from Hickenbotham's
with respect to the time of their conversations. Accord-
ing to Wortham, there were two conversations, one
around 9 a.m. and one at break, around 10 a.m. Both
agree, however, that other employees were present in
the room during their conversations, and identified
Gladys Lee, Chuck Marceau, Ruby Bell, Richard Sta-
chowski, assistant supervisor, and Mike Trujillo, depart-
ment supervisor, as being present in the room. Hicken-
botham also identified additional employees as being pre-
sent as well, but it appears that these other employees
did not take part in the conversations regarding a union.
Richard Stachowski, however, was sitting adjacent to
Hickenbotham's worktable and only 2 to 4 feet away, ac-
cording to Hickenbotham. Both Hickenbotham and
Wortham testified that their conversations regarding the
union organization were in normal tones and could have
been heard in the room which did not have a high noise
level. On the other hand, neither testified that any per-
sons present in the room (described by Hickenbotham as
being 40 by 30 feet in size) indicated they heard the con-
versation. Hickenbotham conceded that he was not sure
that Stachowski heard any of the remarks between him-
self and Wortham even though he was sitting close by.
After break on the morning of January 22, Supervisor
Trujillo, according to Hickenbotham, directed Hicken-
botham and employee Don Nelson to move certain
boxes from the department to a rear area of the plant
where the department was to be relocated. Hicken-
botham testified that he moved one bunch of boxes and
was then told by Trujillo to wipe off the shelves in the
new area where the boxes would be placed. However,
before he started on that, Trujillo asked him to get a
dolly (handtruck) from shipping so the women could use
the dolly to carry the boxes from the old department
area to the new area. Hickenbotham got the dolly and
started to the old department with it, but Trujillo called
out to him and told him to come back and help him wipe
the shelves. Hickenbotham replied that he would take
the dolly to the front and leave it and come back. How-
ever, before Hickenbotham could return, Trujillo
"rushed back" and told him if he could not do what Tru-
jillo asked him he was fired.
Based on the foregoing testimony, the General Coun-
sel's theory and argument is that Respondent was aware
of the union talk between Wortham and Hickenbotham
and that the discharge of Hickenbotham was pretextual
and responsive to his union conversations with Wortham.
The General Counsel contends that the Respondent's
knowledge of the Hickenbotham-Wortham conversations
is established by the fact that they took place within the
hearing of Richard Stachowski who the General Counsel
contends is a supervisor. Moreover, the General Counsel
argues that, even if there were no direct knowledge of
the union sympathies and desires of Hickenbotham, it
could be inferred from the small size 2 of the Respon-
dent's operations, citing A to Z Portion Meats Inc., 238
NLRB No. 57 (1978), and Wiese Plow Welding Co., Inc.,
123 NLRB 616 (1959). The pretextual nature of the dis-
charge is shown, according to the General Counsel, not
only by the timing of the discharge within minutes of the
union talk, but also by the fact that Hickenbotham was a
senior and respected employee.
The Respondent denied through the testimony of Tru-
jillo and Stachowski that it had any knowledge of any
union activity or sympathy on the part of Hickenbotham
at the time of his discharge. Both Trujillo and Sta-
chowski denied hearing any conversation between
Wortham and Hickenbotham regarding a union. Their
testimony is supported by employee Chuck Marceau,
presented as a witness by the Respondent, who testified
he had not heard Wortham and Hickenbotham discuss
the Union.3
Trujillo's version of the discharge of Hickenbotham is
that he asked Hickenbotham to move the boxes to the
new department area and Hickenbotham ignored him.
He asked a second time and Hickenbotham began to
comply but "barely moved." Then Hickenbotham went
to the shipping- department where he spent an estimated
30 to 45 minutes before coming back to Trujillo at the
new department location. At that point, boxes were al-
ready piled up by the shelves where they were going to
be stacked, so Trujillo told Hickebotham to get a rag
and clean the shelves. However, Hickenbotham ignored
Trujillo and continued toward the old department loca-
tion. Trujillo called after him and asked if he had not
told him to get a rag and clean the shelves. Again he
was ignored by Hickenbotham who continued in the di-
rection he was going. Trujillo thereupon caught up with
Hickenbotham and fired him.
Trujillo's version of Hickenbotham's discharge is sub-
stantially supported not only by Wortham but also by a
number of other witnesses presented by the Respondent.
Thus, Chuck Marceau testified he heard Trujillo loudly
calling to Hickenbotham and observed that Hicken-
botham ignored the calls. Similarly, Olena Hammond, a
production supervisor, testified she heard Trujillo call
Hickenbotham twice but Hickenbotham "just kept walk-
ing," whereupon Trujillo caught up and told him, "Well,
if you can't do what I ask you, well, then you're fired."
Supervisor Jeraline Stephenson likewise heard Trujillo
loudly calling to Hickenbotham, and Roy Finny, ship-
ping and receiving manager, related in his testimony that
Trujillo kept hollering for Hickenbotham to come there,
and asking finally whether Hickenbotham was hearing
him. Lastly, Trujillo's daughter, Catherine, also an em-
ployee of the Respondent, testified she also heard her
father calling after Hickenbotham to come back but
Hickenbotham continued on toward the front of the
building and the old location of the repair department.
2 The record does not show how many employees were employed by
the Respondent.
s Marceau was the only employee identified by Wortham and Hicken-
botham as being present in the repair room during their union conversa-
tions who was called as a witness by either side.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trujillo impressed me as a somewhat excitable witness
with a tendency to exaggerate. Yet he appeared basically
sincere, and his testimony was supported by other wit-
nesses whose credibility was not seriously impugned.
Moreover, even Hickenbotham in his version does not
claim that Trujillo gave him specific permission to disre-
gard his last direction to wipe the shelves and to proceed
on the the old department location. Rather, Hickenboth-
am's testimony reveals that he resented Trujillo's giving
him new orders prior to his completion of earlier direc-
tions. Given that resentment it would not be implausible
for Hickenbothan to decide to set his own priorities in
accomplishing the tasks assigned by Trujillo. In any
event, I credit the version of Hickenbotham's discharge
as related by Trujillo rather than by Hickenbotham,
whom I found to be unconvincing on the details of the
discharge. I therefore find on Trujillo's version that he
directed Hickenbotham to perform a specific task and
Hickenbotham ignored him even in the face of loud and
repeated calls by Trujillo.
I conclude that Hickenbotham's refusals to respond to
Trujillo and to do as directed by him constituted insub-
ordination which would be a legitimate basis for dis-
charge. The existence of a legitimate basis for discharge
is no defense to a finding of an unfair labor practice if
evidence establishes that the discharge was nevertheless
motivated, even in part, upon the discharged employee's
union or other protected concerted activity under the
N.L.R.B. v. Whitfield Pickle Co., 374 F.2d 576, 582 (5th
Cir. 1967); N.L.R.B. v. Whitin Machine Works, 204 F.2d
883, 885 (Ist Cir. 1953); Hugh H. Wilson Corporation, 171
NLRB 1040, 1046 (1968). Conversely, as stated by the
Board in P G. Berland Paint City, Inc., 199 NLRB 927
(1972):
The mere fact that an employer may want to part
with an employee whose union activities have made
him persona non grata does not per se establish that a
subsequent discharge of that employee must be un-
lawfully discriminatory. If the employee himself
obliges his employer by providing a valid indepen-
dent reason for the discharge-i.e., by engaging in
conduct for which he would have been discharged
anyway-his discharge cannot properly be labeled a
pretext and ruled unlawful.
Considering the foregoing, and assuming arguendo that
the Respondent was aware that Hickenbotham and
Wortham had discussed union organization that very
morning, I am not persuaded that Hickenbotham's dis-
charge may be regarded as pretextual. His failure, indeed
refusal, to respond to Trujillo's calls and orders was
clear and deliberate insubordinate conduct. Since it oc-
curred in the presence of other employees, there was
little basis for Trujillo to excuse or forgive such conduct.
Trujillo was a new supervisor having been hired by the
Respondent only a week earlier.4 His testimony that
Hickenbotham's disregard of his calls and orders in the
presence of other employees was embarrassing was en-
4 Trujillo had been employed by the Respondent on a prior occasion,
perhaps during a time when Hickenbotham was employed by the Re-
spondent, but the evidence does not establish that Trujillo had ever
worked with, or supervised, Hickenbotham.
tirely credible. In view of this embarrassment and be-
cause Hickenbotham's conduct could be perceived as a
"test" of a new supervisor the severity of the discipline
imposed on Hickenbotham cannot be viewed as unrea-
sonable.
Although Hickenbotham may have had a good work
record with no prior criticisms or warnings, such record
vouches little for him under the circumstances of this
case. Trujillo as a new supervisor was not likely to be
aware of Hickenbotham's work record prior to Trujillo's
supervision. Moreover, Trujillo credibly disavowed any
consideration of Hickenbotham's work record in effectu-
ating the discharge even though he testified that, from
his observation of Hickenbotham during the week prior
to the discharge, Hickenbotham was a slow worker who
on one occasion had been impertinent to Trujillo.
Finally, the timing of the discharge only minutes after
the union discussion, while suspicious, does not dictate a
conclusion that it was discriminatorily motivated. The
evidence does not establish that Trujillo's orders or di-
rections to Hickenbotham were given in contemplation
of his refusal to comply. In the absence of such evidence,
and since the discharge immediately followed the of-
fenses on which it was based, the timing of the discharge
in relation to Hickenbotham's union discussion with
Wortham loses significance.
Based on the foregoing, I conclude that the discharge
of Hickenbotham was not pretextual and that the Re-
spondent did not violate Section 8(a)(3) and (1) of the
Act in such discharge
B. The Discharge of Wortham
Wortham testified that during lunchtime on January
22, after Hickenbotham's discharge, he was engaged in a
conversation with Trujillo and employee Don Nelson in
the repair area when Jack Schechter, president of the
Respondent, walked in and joined in the conversation. In
this conversation, Wortham asked Schechter why he had
a rule that employees could not wear blue jeans.
Schechter replied that he did not like blue jeans and ex-
plained why. Wortham told Schechter it seemed that
jeans should not be objectionable if ironed, starched,
creased, and if they had no vulgar patches on them.
Schechter, nevertheless, responded that he still did not
like jeans. Wortham then remarked that at the Respon-
dent's pay rates cleaning costs for the required employee
clothing cut deeply into the employee's paychecks.
5 This conclusion which assumes the Respondent's knowledge of Hick-
enbotham's union discussions renders unnecessary a decision on the su-
pervisory status of Stachowski and whether the Respondent was aware,
through Stachowski, of the Hickenbotham-Wortham conversations re-
garding organizational efforts. I would observe, however, that I found
Stachowski a credible witness who was emphatic and persuasive in his
denials that he overheard Hickenbotham discuss a union with Wortham.
Moreover, Hickenbotham admitted that he was not sure that Stachowski
actually heard the conversation even though he was close by. In addi-
tion, Marceau, the only other employee to testify in this proceeding who
was identified by Wortham and Hickenbotham as being present in the
room at the time of their union discussions, credibly denied hearing such
discussions. Accordingly, I would conclude that direct knowledge by the
Respondent of Hickenbotham's union inclinations was not established.
The absence of such direct knowledge, under the peculiar circumstances
of the case, also undermines any basis for establishing such knowledge
indirectly through inference.
ADVANCE WATCH COMPANY, LTD 1005
Schechter suggested using dacron or wash and wear
pants but Wortham replied he did not like that type of
clothing. Wortham then asked Schechther if he had any-
thing against employees forming a union. Schechter re-
plied, still according to Wortham, "You're damn right."
Wortham inquired what it was and Schecther responded,
"You know damn well what it is." Wortham said he did
not know what it was and Schechter then suggested that
Wortham find another place to work. Wortham asked if
Schechter was asking him to quit and Schechter replied
affirmatively. Wortham said he was not going to quit,
whereupon Schechter announced that he was fired.
Based on Wortham's testimony it is the General Coun-
sel's position that Wortham was discharged not only be-
cause he had complained about the Respondent's prohibi-
tion of employee's wearing blue jeans as well as about
employee wage rates, but also because he had the audac-
ity to suggest to Schechter that employees might be in-
terested in forming a union. The General Counsel con-
tends that, insofar as the discharge was based on Worth-
am's complaints regarding blue jeans and pay, it was vio-
lative of Section 8(a)(1) since Wortham, in voicing those
complaints, was engaged in protected concerted activity
under the Act. Since the discharge was also based on
Wortham's reference to a union, in the General Coun-
sel's view the discharge also violated Section 8(a)(3) of
the Act.
Schechter's version of the critical conversation with
Wortham differs from Wortham's. According to
Schechter the conversation began when Schechter went
into the repair department to admonish an employee for
sending out a watch repair without charging for some
watch batteries. Wortham spoke up and said that for the
little money the employees were paid the Respondent
should not have to charge for the batteries. Schechter
had responded that if Wortham did not like working
there he should go someplace else. There followed the
discussion on the prohibition against blue jeans and addi-
tional invitations by Schechter to Wortham to quit. At
one point, Wortham said he was going to get a job at
Chrysler, and Schechter asked him why he just did not
leave then. Finally, Schechter admitted that Wortham
asked, "How would you like a Union?" to which
Schechter replied again that if he didn't like it there to
leave. Wortham replied that he was not going to quit,
that he would have to be fired. Schechter then fired him.
Stachowski, Trujillo, Marty Schonberg, a salesman for
the Respondent, and Shipping and Receiving Manager
Roy Finny, all testified that they heard portions of the
Wortham-Schechter encounter. Their versions were ad-
mittedly incomplete. However, Schonberg and Sta-
chowski supported Schechter's version to the extent that
Wortham referred to Chrysler. Wortham could not
recall any reference to Chrysler in his remarks to
Schechter but did not specifically deny them. Moreover,
he admitted that he had previously been employed by
Chrysler and had a grievance pending regarding his sep-
aration there. Accordingly, I credit that portion of
Schechter's testimony in which he attributes to Wortham
the remarks concerning Chrysler.8 On the other hand,
the remarks attributed to Schechter by Wortham in re-
sponse to Wortham's inquiry about Schechter's opposi-
tion to a union were not specifically denied by
Schechter. Accordingly, and since Wortham impressed
me as a reliable and honest witness, I find that
Schechter, as contended by Wortham, did express oppo-
sition to employees forming a union when the subject
was broached by Wortham.
The Respondent contends that Wortham was not dis-
charged because of any union activity or because he
mentioned a union to Schechter or complained about pay
rates or the prohibition on employees wearing blue jeans.
Rather, it was Schechter's testimony that Wortham was
discharged because of Wortham's statement that he ex-
pected to have a job elsewhere, and it was uneconomical
for the Respondent to continue to employ and train
Wortham in digital watch repair if he intended to leave
in a short time. In this regard, Trujillo testified that it
took about 6 weeks of training for an employee to
become proficient in digital watch repair. Wortham at
the time of his discharge had been on the job less than 3
weeks.
I concur with the Respondent's position that Worth-
am's discharge was not based on his complaints about the
rules on blue jeans or employee pay rates. Wotham's
complaints regarding the Respondent's rule against the
wearing of blue jeans was in the nature of a protected
concerted activity. The Board has previously held that
"an individual's actions may be considered to be concert-
ed in nature if they relate to conditions of employment
that are matters of mutual concern to all affected em-
ployees." Air Surrey Corporation, 229 NLRB 1064 (1977).
Here the testimony of Respondent's witness Mildred
Mann established that employees had previously sought
to have the Respondent abrogate its rule on blue jeans so
it is clear that the rule was a matter of mutual concern to
the employees. But Mann's testimony also establishes
that other employees who had sought a change in the
rule had not been fired. Accordingly, while Schechter
may have been irritated by Wortham's complaint regard-
ing the rule on blue jeans, and perhaps also by his com-
plaint about the wage rates, I am not persuaded that such
complaints precipitated the discharge. Wortham was
simply reminded of his right to quit if he was unhappy
with his conditions of employment. I therefore find no
independent violation of Section 8(a)( ) in Wortham's
discharge.
The alleged 8(a)(3) violation finds more support.
Wortham was fired only after he inquired as to
Schechter's opposition to employees forming a union and
after Schechter forcefully stated his opposition to such
unionization. In my opinion, that was the provocation
for Schechter's changing his invitations to Wortham to
quit into an outright discharge. Up to Wortham's refer-
ence to a union, his complaints could be dismissed as
simply those of an unhappy employee, but after Worth-
am's revelation of interest in union organization, the
6 It was Trujillo's testimony that Wortham did not mention a union
until after Schechter told Wortham he was fired That testimony is re-
jected as clearly erroneous in view of Schechter's unequivocal admission
to the contrary
1006 DECISION OF NATIONAL LABOR RELATIONS BOARD
threat to the Respondent became obvious and the action
taken was immediate.
The Respondent's defense, that Wortham was dis-
charged because he indicated he was seeking or expect-
ing work elsewhere and the Respondent did not desire to
spend further time training him, appears to me to be
hollow and pretextual. In this regard, I note that
Wortham was not discharged immediately after he made
a reference to having a job at Chrysler, but later after his
inquiries about Schechter's opposition to a union. More-
over, there was no evidence presented that the Respon-
dent had any specialized training program which re-
quired considerable expenditures of time or funds on
training new employees such as Wortham in watch
repair. The record suggests there was no more than on-
the-job training. Further, while the record indicates that
it usually takes 6 weeks7 to reach full proficiency, it
stops short of establishing that Wortham at the time of
his discharge had not already reached full proficiency so
as to justify his retention. Indeed, Schechter made no in-
quiries into the state of Wortham's proficiency, the
amount of his production in comparison with fully
trained employees, or the extent of his training at the
time of the discharge. Under these circumstances, a con-
clusion that Wortham's retention would be uneconomical
for the Respondent in view of the possibility of his em-
ployment elsewhere in the indefinite future was ill found-
ed and is clearly indicative of an afterthought on the Re-
spondent's part. Accordingly, I find the Respondent's de-
fense to be pretextual. Having found the Respondent's
expressed reason for the discharge of Wortham to be
pretextual, it may be inferred that the Respondent's
actual motivation was one that the Respondent sought to
conceal. See Shattuck Denn Mining Corporation (Iron
King Branch) v. N.L.R.B., 362 F.2d 466 (9th Cir. 1966).
Considering all the foregoing, including Schechter's ex-
pressed opposition to unionization by the employees, I
find that the Respondent's real motivation in discharging
Wortham was his expression to Schechter of an interest
in employees forming a union. Accordingly, I find that
the Respondent violated Section 8(a)(3) and (1) of the
Act in discharging Wortham.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. By discharging Floyd V. Wortham, Jr., on January
22, because of his expressed interest in union organiza-
tion by the employees, the Respondent engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(3) and (1) and Section 2(2), (6), and (7) of
the Act.
3. The Respondent did not violate the Act in discharg-
ing Jonathan Hickenbotham or in any other manner al-
leged in the complaint.
7 Hickenbotham, at one point, testified it took only I to 2 weeks to
train employees in the job, but he subsequently conceded it might take as
long as a month to 6 weeks. The record reveals no special preemploy-
ment qualifications, training, or experience for the job, however.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order the
Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
The Respondent having discriminatorily discharged
Floyd V. Wortham, Jr., in violation of the Act, I find it
necessary to order it to offer him full reinstatement to his
former position or, if it no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any
loss of earnings that he may have suffered from the time
of his termination to the date of the Respondent's offer
of reinstatement. The backpay shall be computed in ac-
cordance with the formula approved in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest computed in the
manner and amount prescribed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977).8
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 9
The Respondent, Advance Watch Company, Ltd.,
Redford, Michigan, its officers, agents, successors, and
assigns, shall:
(a) Discouraging membership in any labor organization
by discharging its employees or in any other manner dis-
criminating against them with regard to their hire or
tenure of employment or any other term or condition of
employment.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Floyd V. Wortham, Jr., immediate and full
reinstatement to his former job or, if his job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges, and
make him whole for his loss of earnings in the manner
set forth in the 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, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
8 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716, 717-721
(1962).
g 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 find-
ings, 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. I. Cease and desist from:
ADVANCE WATCH COMPANY, LTD 1007
(c) Post at it offices and facilities in Redford, Michi-
gan, copies of the attached notice marked "Appendix."1 0
Copies of said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt thereof, and be
maintained by the Respondent for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 7, in writ-
ing within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that those allegations of the
complaint in the consolidated cases as to which no viola-
tion has been found are hereby dismissed.
to In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant 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
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
WE WILL NOT discourage membership in any
labor organization by discriminatorily discharging
our employees or in any other manner discriminat-
ing against them with regard to their hire or tenure
of employment or any term or condition of employ-
ment.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of rights guaranteed them by Section 7 of
the National Labor Relations Act. These rights in-
clude the right to form, join, or assist labor organi-
zations, to bargain collectively through representa-
tives of the employees' own choosing, and to
engage in other concerted activities for mutual aid
and protection.
WE WILL offer full and immediate reinstatement
to Floyd V. Wortham, Jr., to his former position, or
if such position no longer exists, to a substantially
equivalent position, without prejudice to his senior-
ity or other rights and privileges, and make him
whole for any loss of earnings he has suffered by
reason of the discrimination against him.
ADVANCE WATCH COMPANY, LTD.