American Art Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1968

170 N.L.R.B. 571 (N.L.R.B. 1968)

AMERICAN ART INDUSTRIES, INC.
American Art Industries, Inc. and General Sales
Drivers and Allied Employees, Local Union No.
198, affiliated with the International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and
Helpers of America. Case 12-CA-3697 (1-2)
March 20, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On December 18, 1967, Trial Examiner Thomas
N. Kessel issued his Decision in the above-entitled
case, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices,
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision 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
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 recommenda-
tions 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 Recom-
mendations of the Trial Examiner, as modified
below, and hereby orders that the Respondent,
American Art Industries, Inc., Miami, Florida, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order as herein modified.
1. Amend subparagraph (a) of paragraph 2 of
the Trial Examiner's Recommendations by inserting
between the words "positions" and "and" the
phrase "without prejudice to their seniority or
other rights and privileges...."
2. Insert a new subparagraph (c) of paragraph 2
of the Trial Examiner's Recommendations, to read
as follows, and reletter present subparagraphs (c)
and (d), as "(d)" and "(e)."
"(c) Notify the above-named employees, if
571
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the' Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces."
' The Respondent excepts to the credibility resolutions made by the Trial
Examiner It-is the Board's established policy not to overrule a Trial Ex-
aminer's resolutions as to the credibility unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Such a con-
clusion is not warranted here standard Dry Wall Products, Inc, 91 NLRB
544, enfd 188 f 2d 362 (C A 3)
The Respondent also contends that the Trial Examiner was biased
against it , but our examination of the record reveals no basis for this con-
tention
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS N . KESSEL, Trial Examiner: Upon
charges filed November 28 and 29 , 1966, by
General Sales Drivers and Allied Employees, Local
Union No . 198, affiliated with the International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , herein
called the Union , against American Art Industries,
Inc., herein called the Respondent , the General
Counsel of the National Labor Relations Board,
herein called the Board , by the, Regional Director
for Region 12, issued his complaint dated February
8, 1967 . The complaint alleges the Respondent's
violation of Section 8(a)(1), (3), and ( 4) of the
Act. The Respondent 's answer filed thereto denies
the statutory violations alleged. Pursuant to notice
a hearing was held before me at Miami , Florida, on
March 27 , 1967. All parties were represented by
counsel . The Respondent was also represented by
its president.
Pursuant to the General Counsel's motion at the
hearing I ruled that my decision in the instant case
would be deferred until the Board issued its deci-
sion in American Art Industries, . Inc., Case
12-CA-3577 ( 1-2),' and that I would ' notice and
be bound in the instant case by the Board 's findings
in its decision to the extent that such findings are
relevant to an issue herein . I further ruled that the
instant record would be kept open until issuance of
the Board's decision at which time I would order
the parties to show cause why the record should not
be closed . Following issuance of the Board's deci-
sion I sent the parties the foregoing order dated Au-
gust 15 , 1967 , instructing them to file their respon-
ses with me on or before August 25. No responses
having been received by that date I issued an order
dated August 28, 1967 , notifying the parties that
the proceedings in Case 12-CA-3577 (1-2), in-
cluding the Board 's decision , would be judicially
'Now reported at 166 NLRB No 109
170 NLRB No. 70
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
noticed herein and that the hearing in the present
case was closed. The parties were given until Sep-
tember 25, 1967, to file briefs. The General Coun-
sel has filed a brief which has been considered.
Upon the basis of the entire record and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BOARD'S ASSERTION OF JURISDICTION IN THE
CASE
The complaint alleges that the Respondent is a
Florida corporation with its principal office and
place of business in Miami, Florida, where it is en-
gaged in the manufacture, sale, and distribution of
art work, paintings, pictures, sculptures, and related
products, and that in the operation of its business it
annually sells and ships products valued in excess of
$50,000 directly to customers located outside the
State of Florida. The Respondent's answer admits
these allegations but denies that the Respondent is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. On the
basis of the foregoing admitted facts the Board
found in Case 12-CA-3577 (1-2) that the Respon-
dent is engaged in commerce within the meaning of
the Act and I accordingly make such finding here. I
further find that the Act's purposes will be effectu-
ated by the Board's assertion of jurisdiction in this
case over the Respondent's operations.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting the
Respondent's employees to membership.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges the Respondent's unlawful
discharge of employees Horacio Trujillo and J. D.
Mosely on November 23 and 29, 1966, respective-
ly, because each had testified for the General
Counsel against the Respondent in Case
12-CA-35773(1-2), and because of their activities
in behalf of the Union. The first of said reasons is
basis for the complaint allegation that the Respon-
dent had violated Section 8(a)(4) of the Act, and
the second is basis for the allegation that Section
8(a)(3) had been violated. The Respondent de-
fends the terminations of these employees on the
ground that it had no work for them. In Trujillo's
case , the Respondent further explains that his ter-
mination was necessitated by his inability to com-
prehend work directions in English.
The following findings, relevant to the instant
case , were made by the Board in Case
12-CA-3577(1-2). In July 1966 directly after the
Union began its campaign to organize the Respon-
dent's employees, the Respondent counter-cam-
paigned by unlawfully interrogating employees con-
:erning their union activities, by threatening them
with reprisals , and by promising them improved
working conditions . This conduct was found viola-
tive of Section 8(a)(1) of the Act. The Board
further found that the Respondent had unlawfully
discharged four employees in violation of Section
8(a)(3) of the Act'because of their activities in be-
half of the Union, and that one of these employees
was the J . D. Mosely who in the instant case was
again allegedly discharged for his union activities
and because he had testified against the Respon-
dent . Finally , the Board found that the Respondent
had violated Section 8 ( a)(5) of the Act by its un-
lawful refusal to recognize and to bargain with the
Union . The facts of the instant case are evaluated
and construed in the light of the aforestated Board
findings and conclusions . See E. V. Prentice
Machine Works, Inc., 120 NLRB 1691, 1692, fn. 2.
On July 20, 1966 , as previously found by the
Board , the Respondent 's employees went on strike
to protest the Respondent 's unfair labor practices.
Following an exchange of letters between counsel
for the Union and the Respondent , reinstatement
was offered on November 7, 1966 , by the Respon-
dent to 36 strikers, including the four discrimina-
torily discharged employees . By arrangement
between counsel , all these employees were given
until November 14 to report to work . None, except
Trujillo and Mosely chose to return to work.
Mosely reported on November 15, 1966, and
worked until Friday, November 18. On Monday,
November 21, he appeared at the hearing in Case
12-CA-35779 ( 1-2) pursuant to subpena from the
General Counsel . He testified as a General Coun-
sel's witness on November 23 and again on
November 28. When he reported for work on
November 29 he discovered that his timecard had
been removed from its accustomed place. He
thereupon spoke about the missing card to Evelyn
Wagner , President Theodore Foster's secretary,
who directed him to await Foster's arrival. The
latter arrived at the plant at 8:30 a.m. and, accord-
ing to Mosely , merely glanced angrily at him. Mose-
ly heard Wagner tell Foster that he was ready to
start work but did not hear Foster 's reply. Foster
left at 9 a . m. without having spoken to Mosely. A
half hour or so later Wagner informed Mosely that
they were still looking for work for him. Later she
advised there was nothing for him and promised to
call him in a few weeks if there was need for him.
The call never came.
Mosely had worked for the Respondent for about
3 years before his discharge in 1966. He claimed
that in all that time he had been laid off only once
and this was on an occasion when the whole plant
was shut down for about 4 days. As previously
found by the Trial Examiner and the Board, Mosely
was the only employee who operated the large
machines in the carpentry department for making
tables . While employed by the Respondent his prin-
cipal duty had been to operate a machine which
AMERICAN ART INDUSTRIES, INC. 573
cuts masonite to form tabletops . Estimates of the
number of tabletops which this machine can
produce hourly if operated at maximum speed
ranged from 200 , according to Mosely , to 300 ac-
cording to President Foster. While" Mosely testified
that 65 percent of his time was spent on operating
that machine, he further indicated that it is too dif-
ficult properly to make such estimate as his duties
in the course of the day changed frequently and
there was no consistency to his time spent produc-
ing tabletops . His other - activities consisted of as-
sembling tables, operating a machine which
smoothes the edges of tables with formica tops, a
process he called "routing ," and such other work -as
he was ordered to perform by his shop foreman.
For example , on the third day following his return
on November 15, 1966, Mosely cut designs on pic-
ture frames.
Mosely observed,- when he returned to work on
November 15, that the inventory of tabletops was
down to about 200 to 300. When he had last
worked for the Respondent in July 1966, there had
been An inventory of 500 to 600 tabletops. He de-
nied that upon resuming work on November 15 he
had been told there would be only 3 days' work for
him.
-Trujillo had worked for the Respondent from
March 1963 until he went on strike in July 1966.
He returned to work on November 16 pursuant to
the Respondent's reinstatement offer and worked
until November-18, 1966. Having been subpenaed
by the General Counsel to testify in Case
12-CA-3577(1-2), Trujillo appeared at the hear-
ing in that case on November 21 and 22. he
testified for the General Counsel on the latter date.
He reported for work at his usual starting time on
November 23 and was instructed to await the ar-
rival of President Foster who, when he came to the
plant, told Trujillo to leave and to return to work
on Monday, November 28. Trujillo reported on
that date and was again told to await President
Foster's arrival. The latter did not speak to him
when he came to the plant but Trujillo - was in-
formed by Foster's secretary, Evelyn Wagner, that
there was no work for him and that he was not to
return to the plant until called . He has not been
called.
- Trujillo's job for the, Respondent had been to
paint picture frames with a spray gun using various
colors as directed. He also spray painted tables, pic-
tures, and figures. About 75 percent of his time,
however, had been spent painting picture frames.
Trujillo cannot read English. Nor can he compre-
hend spoken English excepted to a limited degree.
During his several years' employment by the
Respondent he had generally been instructed ver-
bally in Spanish by a woman, Edna Trujillo, whom
he had regarded as the - head of his department.
When he returned to work in November 1966, she
was no longer employed by the Respondent. Nor
was there anyone else in the plant who could com-
municate with him in Spanish . Despite his language
difficulties; Trujillo insisted that he effectively had
received work instructions in the past from others
who could not communicate to him in Spanish. He
testified he had frequently received such instruc-
tions in English from President Foster's son,
Richard , and from Foster 's wife . They had in-
structed him that he was to -paint with certain
colors by writing the word white , black , blue, red,
or yellow on a slip of paper which was stapled to a
piece of wood. This he could comprehend. He de-
nied that he had ever received written instructions
to paint in variations from these basic colors. If a
special shade was desired the mixed paint would be
brought to him in a can , or he would prepare the
mixture by matching it with a sample sent to him.
He maintains that he had never during his more
than 3 years' employment had been told by Mrs.
Foster or by Richard Foster that he had failed to
carry out their instructions properly. He denied that
in his 3 days ' employment after his return on
November 16 that he had committed errors which
necessitated any repainting. On each of these days
he had been informed by Richard Foster of the
work he was to do including the colors he was to
use. Trujillo claimed he understood his orders
without difficulty and had proceeded with his work
without receiving complaints about his per-
formance. Upon his return to work in November
1966, Trujillo had observed that there were two
women and a man -doing spray painting work
similar to that which he had done. These were, new
employees who had been hired after he had gone`
on strike in July. -
President Foster denied that. Mosely's -ap-
pearance in Case 12-CA-3577(1-2.) as a witness
for the General Counsel or his union activities, as
to which he admitted knowledge , motivated his
layoff. He insisted the sole reason for this action
was lack of work . He disclaimed resentment toward
the employees who had testified against the
Respondent , nor, he said , had he glanced angrily at
Mosely when he returned to work after he had
testified. He disagreed with Mosely that he had dur-
ing his entire employment been laid off just once:
He declared that neither Mosely nor Trujillo should
have been reemployed at all in November 1966. He
had done so, he testified , despite lack of need for
them , because of his attorney's insistence. He as-
serted that he should have ignored his attorney. To
employ Mosely and Trujillo necessitated making
work for them. They were laid off after but a few
days' work following their reinstatement because
"the work they were doing we already had a suffi-
ciency of. They ran the stock ,up to a point where it
was no longer economically feasible to, carry
them ." Since their departure no one, assertedly, has
been employed to do their work. The Respondent's
sales , according to Foster, are down 25 percent
from the previous year and at the moment no new
tabletops are being produced. At one point Foster
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
claimed a present inventory of 5,000 to 6,000 table
tops, although he could not in later testimony state
exactly how much was piled up by Mosely in the
few days lie worked after his November reinstate-
ment.
Concerning Trujillo, Foster related that his ina-
bility to understand English directions made im-
possible his continued employment. Moreover, new
devices installed by the Respondent after the July
1966 strike have eliminated "certain jobs" which
had "a bearing on some of this spraying" which
Trujillo used to perform. Foster testified he would
have endeavored to find other work for Trujillo ex-
cept for his language handicap. He acknowledged
that three employees had been hired to do spray
painting after the strike and that they were retained
despite Trujillo's layoff. Foster explained that these
persons spray paint products which Trujillo could
not paint adequately. This was so because to teach
him to do this work required communication with
him in Spanish and no person with the ability to
speak that language is now employed by the
Respondent. He stated that Trujillo had been given
an opportunity to do the new work but was unable
to perform satisfactorily. In the few days he worked
he made many errors because he used the wrong
colors and improper amounts.
Foster acknowledged that when the November 7,
1966, offer of reinstatement was made to the 36
strikers the Respondent actually had need for half
of them who could have been put to work within a
day to a week. As to the remaining 18, his intention
had been-to absorb them in the work force "as fast
as we could feed them in." He testified that at the
time the offer was made the Respondent employed
50 employees. Thus, by Foster's own calculations
the Respondent would have employed 68 em-
ployees immediately after the November 7 rein-
statement offer had 18 strikers requested reinstate-
ment, and the. remaining 18 would have been fed
into the .force- as needed. Foster qualified this
testimony by insistence this would not have been an
"economical" move. The Respondent's books and
records show that in the week ending November
21, 1966, the Respondent employed 53 employees,
that on November 28 this figure had been reduced
by layoffs to 48, further reduced by December 5 to
45 by other layoffs, and finally on December 21,
1966, had been brought down to 41.
I am persuaded that the record preponderates in
favor of ' findings that the terminations of both
Mosely and Trujillo were unlawfully motivated
because' they had testified for the General Counsel
in Case 12-CA-3577(1-2). Mosely's known union
activities and Trujillo's union sympathies, whatever
they may have been, might have contributed to
their terminations. I have not concerned myself
with these factors, however, because the remedy
herein recommended is sufficiently supported by
the findings of violation of Section 8(a)(4) of the
Act without-regard to whether Section 8(a)(3) has
also been violated. Moreover, there is already an
outstanding Board finding of violation of Section
8(a)(3) in Case 12-CA-3577(4-2) to which the
addition of another such finding in the present case
would, be merely cumulative.
In reaching the aforestated findings, of Section
8(a)(4) violation, I have been influenced by the fol-
lowing:,
(a) The timing of the, terminations. Both Mosely
and Trujillo were notified of their terminations
directly upon returning to -work after their absences
to testify in Case 12-CA-3577(1-2). In neither
case had there been any indication that these ac-
tions -were pending. Nor had either been given any
reason to believe that his tenure following reinstate-
ment was to last just the few days which elapsed be-
fore they testified. Nothing was said, as .I find from
the credited testimony, that Trujillo was being rein-
stated on trial because there was no ,Spanish speak-
ing person to transmit instructions to him, and
nothing was said to Mosely that there was little or
no need for his services. Thus, the precipitate ter-
mination notification to each after he had testified
reflects a newly made decision which I am satisfied
was occasioned by the circumstance of their
testimony against the Respondent at the unfair
labor practice hearing in Case 12-CA-3577(1-2).
(b) The Respondent's explanations for, the ter-
minations are unpersuasive. President Foster's as-
sertions that Mosely and Trujillo were- reinstated on
the advice of counsel and in opposition to his own
judgement is unimpressive. Respondent's counsel is
a well-known specialist in the field of labor law and
must be aware, as I am, satisfied he is, that if the
Respondent had no work for- these employees there
was no legal obligation to make unnecessary work
for them in order to reinstate them. Any backpay
liability which the Respondent might have incurred
because of previous discriminatory -discharges or
because of the right of strikers to - reinstatement
upon request would have been mitigated' by the
simple fact that the Respondent had no work for
them.2- I cannot suppose that Foster would have
reacted in silence to his counsel's advice had it
been regarded as bad as he claimed. Nor do I sup-
pose that counsel -thereupon would not have ex-
plained the Respondent's legal right-not to-employ
persons for whom it had no work. Actually,-I do not
believe Foster had taken such a dim view of coun-
sel's advice as he clearly acknowledged that when
the offer of reinstatement was made to 36 strikers
he had present need for 18 of them, over and above
his existing work force, and that-he intended to ab-
sorb the remaining 18 as soon as possible. It strains
belief to find that when only Mosely and Trujillo, of
this entire group, decided to return to work that
there should not have been work for them. One
2 N L R B v Mastro Plastics Corp , 354F 2d 170, 176
AMERICAN ART INDUSTRIES, INC.
would have reasonably expected that at the very
least each would have been told, when he returned,
of the uncertainties of his continued employment.
But, as shown, not a word to this effect was spoken
until after each had given his testimony against the
Respondent. I am satisfied Foster reinstated them
because the Respondent had need for their ser-
vices.
I do not credit President Foster's claim of an in-
ventory of thousands of tabletops at the time of
Mosely's layoff. My impression was that he was in-
ventive and capable of exaggeration to make a
point in the course of his testimony. I credit Mose-
ly's contradicting testimony which impressed me
more favorably that there were but 200 or 300
tabletops on hand when he returned. Moreover,
Foster's insistence that no one has been hired to do
Mosely's work since his last departure does not
convince me that the several machines which he
had operated are at a standstill. Foster did not
make this claim and it is not reasonable to believe
that all this machinery remains idle. In this connec-
tion it should again be recalled that the Board had
found in Case 12-CA-3577(1-2) that Mosely "was
.the only employee who operated the large
machines in the carpentry department for making
tables." There is no indication in the record that
the ' Respondent has eliminated from its business
operations the manufacture and sale of tables.
I -further credit Trujillo's denial that fault had
ever been found, during his tenure of several years
before the, July 1966 strike or in the few days he
worked in November 1966 following his reinstate-
ment , with his ability to comprehend and follow the
simple directions given to him in English . Granted
his proven' illiteracy, he still showed his ability to
comprehend enough, simple directions to enable
him to work without complaint. Neither Foster's
wife nor his son, Richard, from whom Trujillo had
received directions in the past , testified in opposi-
tion to his account of work satisfactorily done for
them.; Nor, did Richard Foster appear as a witness
to contradict Trujillo's claim that his work in
November 1966 had been performed without fault.
Only President Foster, who made no showing of
personal knowledge of Trujillo's job performance,
claims that he could not or did not properly per-
form his duties. Accordingly, I find that Trujillo was
not terminated for his inability to satisfactorily
comprehend instructions or to adequately perform
his work.'
As to the fact that some of the work that Trujillo
had done before the strike is now performed by a
mechanical device, it is not certain from the record
that all his former work has been eliminated by
such device. Foster acknowledged that there are
times, when manual operations of the sort Trujillo
did still must be performed manually. Moreover, it
is not clear that all the work done by the three
spray painters recently employed by the Respon-
dent does not entail some work, for example paint-
575
ing tabletops , which Trujillo can perform. I am
mindful that the Respondent is not legally com-
pelled to employ anyone incapable of working to its
satisfaction . I find , however, that the Respondent
did not terminate Trujillo's services because of such
incapability . It does not follow that if Trujillo's lan-
guage difficulties prove an insurmountable barrier
to his performance of other duties required by the
Respondent that his future employment is legally
compelled. On this record , however, I am satisfied
that his most recent termination was unlawfully
motivated by the fact of his testimony against the
Respondent in a Board proceeding.
(c) The Respondent has shown a predisposition
to commit unfair labor practices . I must , as I have,
take into account , in finding an unlawful motivation
for the terminations of Mosely and Trujillo, the
Respondent's extensive unfair labor practices found
by the Board to have been committed in Case
12-CA-3577( 1-2). I note here, as the Trial Ex-
aminer said in that case with the Board 's approval,
" . . . the serious nature of the unfair labor practices
which the Respondent has committed ,, [ show] an
utter disregard for the policies of the Act." Such
finding is the predicate for the Board 's assumption
that the commission of other unfair labor practices
by the Respondent may reasonably be anticipated,
thereby necessitating the broad cease-and -desist
order entered by the Board in Case
12-CA-3577(1-2).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with its
operations described in section I, above, have a
close, intimate, and substantial relationship to
trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices violative of the
Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action
designed to effectuate the policies of the Act. I
have found that the Respondent terminated the em-
ployment of J. D. Mosely on November 29, 1966,
and of Horacio Trujillo on November 23, 1966, in
violation of Section 8(a)(4) and (1) of the Act. I
shall therefore recommend that the Respondent be
ordered to offer immediate and full reinstatement
to these employees to their former or substantially
equivalent positions without prejudice to their
seniority or other rights and privileges as employees
and to make them whole for any losses which they
may have suffered because of their unlawful ter-
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minations by payment to them of such sums of
money as they normally would have earned as
wages absent their terminations. Backpay shall be
computedtfrom the aforestated dates of termination
to the dates of the Respondent's offer of reinstate-
ment in the manner established by the Board in F.
W. Woolworth Company, 90 NLRB 289, with in-
terest at the rate of 6 percent per annum.
Because the unfair labor practices found to have
been committed by the Respondent strike at the
heart of the Act, and because of the extensive un-
fair labor practices recently committed by the
Respondent (American Art Industries, Inc., 166
NLRB 943), the commission of other unfair
labor practices by the Respondent may reasonably
be anticipated. I shall therefore recommend the is-
suance of a broad cease-and-desist order.
Upon the basis of the foregoing findings of fact
and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. American Art Industries, Inc., is an employer
within the meaning of Section 2(2) of the Act and
is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. General Sales Drivers and Allied Employees,
Local Union No. 198, affiliated with the Interna-
tional Brotherhood of Teamsters, Cahuffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the, Act.
3. By terminating the employment of employees
because they had testified in a National Labor
Relations Board proceeding the Respondent has en-
gaged in unfair labor practices within the meaning
of Section 8(a)(4) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
5. Because there is no necessity therefor, no
finding has herein been made that the Respondent
has violated Section 8(a)(3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record in this
proceeding, I recommend that American Art Indus-
tries, Inc., its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from the following:
(a) Terminating the employment of employees
because they have testified in a National Labor
Relations Board proceeding.
3 In the event that these recommendations are adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
(b) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of their right to self-organization, to form, join,
or assist General Sales Drivers and Allied Em-
ployees, Local Union No. 198, -affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Wareehousemen and Helpers of America, or
any other labor organization, to bargain collectively
through representatives of their own choosing, and
to engage in concerted activities for the purpose-of
collective bargaining or other mutual aid,or protec-
tion or to refrain from engaging in-such activities as
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act.
(a) Offer J. D. Mosely and Horacio Trujillo full
reinstatement to their former -or substantially
equivalent positions-and make them whole for any
loss of earnings suffered as a result of their unlawful
terminations in the manner described in the sectiona
above entitled "The Remedy."
(b) Post'at its plant in Miami, Florida, copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional-
Director for Region 12, after being duly signed by
Respondent's representative, shall be posted -by it
immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(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,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(d) Notify the Regional Director for Region.12,
in writing, within 20 days from the receipt of this
Decision, what steps have been =taken to comply
herewith.'
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Ex-
aminer of the National Labor Relations Board and
in order,to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify
our employees that:
WE WILL- NOT discharge our employees
peals Enforcing an Order " shall be substituted for the words "a Decision
and Order "
" In the event that these recommendations are adopted by the Board, this
provision shall be modified to read "Notify said Regional Director , in writ-
ing, within 10 days from the date of this Order , what steps Respondent has
taken to comply herewith "
AMERICAN ART
because they have testified against us in a Na-
tional Labor Relations Board case.
WE WILL offer immediate and full reinstate-
ment to J. D. Mosely and Horacio Trujillo to
their former or substantially equivalent posi-
tions without prejudice to their seniority or
other rights and privileges and make them
whole for any loss of earnings resulting from
their discharge by us because they testified in a
National Labor Relations Board case.
WE WILL NOT in any manner interfere with,
restrain, or coerce our employees in the exer-
cise of their rights under the National Labor
Relations Act.
Dated By
(Representative ) (Title)
INDUSTRIES . INC. 577
Note : We will notify the above -named em-
ployees if presently serving in the - Armed Forces of
the United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended , after " discharge from the
Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board 's Regional
Office, Room 826, Federal Office Building , Si S.W.
First Avenue , Miami , Florida 33130, Telephone
350-5391.
350-999 0 - 71 - 38