Banner Tire Company

National Labor Relations Board - Board Decisions

Mar 5, 1982

260 N.L.R.B. 682 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Banner Tire Company and District 9, International
Association of Machinists and Aerospace Work-
ers, AFL-CIO. Case 14-CA-15039
March 5, 1982
DECISION AND ORDER
BY' MEMBERS JENKINS, ZIMMI-RMAN, AND)
HUNTER
On October 29, 1981, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions 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 brief
and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.2
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. Banner Tire
Company, Belleville, Illinois, it officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
i Respondent has excepted to certainl credihilitl findinrgs made b, the
Administralive I.aw Judge It is the Ioard's esta blished poilisc nl( ti
Ivcerrule an administralivse lasw judge's iesolutiols with respect It credi-
bility unless the clear prepondierance mff all of the relevant evidence conl,-
vinces us that the resolutions are incosrrect Strandard l)r, Hal/ IPrro ducii
Inc., 91 NL RB 544 (1950). renfd 188 F2d 362 (3d Cir. 1951) wce have
carefully examined the record and finld inoi hasis for ru\'ersiig hi, fildinlgs
Additionally, we are satisfied that Responident's conlllollt s that the
Administrative Iaw Judge was biased are wsitholut lerin Ihere is noth
ing in the record to suggest that his coenduct al the hearing, his rmesilu-
tions of credibility. or the inferences he drew were affected hs any hias
or prejudice
2 In accordance with his partial dissent im Otrplic Medical (C rporzaiutl
250 NLRI 146 (198()) Member Jenkins would asard lilerest 1,i the
backpay due hased on the formula set forth therein
DECISION
STAII MI NI OF THI CASI
Cl AUm) R. WOI .it. Administrative Law Judge: This
case was heard before me in St. Louis, Missouri, on
August 24, 1981, pursuant to charges filed on June 5,
1981,1 and complaint issued on June 30 and amended at
the hearing. The complaint alleges that Respondent has
violated the Act by discharging Kenneth F. Strube and
All dates herein are 19R1, unless other se rnoted
260 NLRB No. 96
engaging in several independent violations of Section
8(a)(l) of the Act.
Upon the entire record and my careful observations of
the witnesses' demeanor as they testified, and after con-
sideration of the helpful post-trial briefs filed by the par-
ties, I make the following findings and conclusions:
1. JURISI)IC'I ION
Respondent is a Missouri corporation engaged in
wholesale and retail sale and installation of tires and
other automotive parts in Illinois, Missouri. and Florida.
The facility involved herein is located in Belleville, Illi-
nois. The complaint alleges, the answer admits, and I
find that Respondent meets both the retail and wholesale
jurisdictional standards established by the Board, and is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
11 I AFOR ORGANIZA^TIION
The Charging Party, District 9, International Associ-
ation of Machinists and Aerospace Workers, AFL-CIO,
herein Machinists or IAM, and the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 50, herein called
Teamsters, are labor organizations within the meaning of
Section 2(5) of the Act.
111. SUPI(RVISORS ANI) A(;FINTS
In answer to the complaint Respondent admitted that
John J. Alexander was retail sales manager and Jim
Smith was store manager. but denied they were either
supervisors ,withinl the meaning of Section 2(11) of the
Act or agents of Respondent. After considerable evi-
dence was adduced with respect to this issue, Respond-
ent agreed on tile record, in accordarce with that evi-
dence, that Alexander and Smith are agents and supervi-
sors within the meaning of Section 2(11) of the Act. I so
find.
IV. I lF Al I ((;,I) UCNIFAIR I ABOR PRACTICEIS
The Facts Found2
The Charging Party has had a contract with Respond-
ent covering the alignment mechanic at Respondent's
Belleville, Illinois, store for a number of years, including
the period encompassed herein. Cyril Hoffmann, the
predecessor to Kenneth Strube in that job, had worked
16 years for Respondent and xvas paid wages and re-
ceived fringe benefits in accordance with the Machinists
z I ie fact s fI td are prirrmarily deriv d from the credible te ilnony of
Kennerlr h Struhe. the alleged discrimi atee, and Roger Poole, business
agclit for the IAM, bec;ause most of it is uinconlroseried and their credi-
bilitt we, auperlior lto that ,if Rcspondlit', ssitnesses on points of conflict
Strube aind Poole s cre decidedly sulerior to Respondent's other two
witlneses in termls of both detailed rccs II and comparative testimonial de-
meanoir Ihe teiimorny of Store Maniger James Smith is fragmentary
illd Xc rrohorati. ol that of Pmoole aid Strube in significant respects
Johrn Alcxasder, Responident's retail sties manager, was inclined to be
vasies., anid did iot imrnpress ntc is a candid sitnle's
682
BANNER TIRE COMPANY
contract.} Hoffmann retired at the end of March 1981.
Respondent has a collective-bargaining agreement with
the Teamsters covering employees at its other stores and
all employees at its Belleville store except the mechanic
who does alignment and other front end work on auto-
mobiles.
IAM Business Agent Poole called Respondent's Belle-
ville store manager, Smith, on April I or 2, and asked
him if he planned to hire an employee named Bergman
for the front-end work. Smith responded that the Com-
pany wanted someone with more mechanical knowledge
than Bergman because it planned to expand their service
operation. Poole promised, and Smith agreed, to send
over some out-of-work Machinists members for inter-
view.
Kenneth Strube was interviewed by Alexander and
Smith on April 2.4 He gave them a job application and a
resume which included the information that he was a
member of the IAM. Strube did not know at the time
that the job applied for was covered by an IAM con-
tract. Alexander told Strube that he was looking for a
mechanic with all around experience to do front-end and
alignment work, as well as other minor repairs when the
front-end and alignment work was low. Alexander then
told Strube that he saw from the resume5 that Strube
was a member of the IAM. Strube said he was. Alexan-
der then offered that Strube would have no problems at
all transferring from the IAM to the Teamsters Union.
Alexander concedes that he told Strube he must join the
Teamsters Union. Strube agreed to do so. Alexander of-
fered the job at $7.50 per hour (the highest rate in the
Teamster contract), and a bonus of 10 percent of all busi-
ness he produced over $3,500 per month.6 Hoffmann had
not had such a bonus arrangement. Strube accepted, stat-
ing he had been laid off for quite a while. Alexander as-
sured him that there had never been any layoffs at
Banner and they did not expect any.
s After considerable evasion John Alexander, Respondent's retail sales
manager, conceded that he knew Hoffmann was a member of the Ma-
chinists and fringe benefits were paid on his behalf to "somebody," but
incredibly denied knowing there was a contract with the Charging Party
covering Hoffmann.
I The record does not show whether he was referred by Poole, but I
conclude he was not because he was not aware the job was covered by a
Machinists contract
5 The resume was not returned to Strube and Respondent did not prof-
fer it at hearing.
6 Respondent's contention that Alexander told Strube that "Banner ex-
pected him to produce S3500.00 per month in business" is an interpreta-
tion of a "yes" answer on cross-examination to a phrase reading "there
was conversation about a quota of S3,500 per month" w hich is part of a
considerably longer compound question. There is no credible evidence
that Strube was expressly told he must, as a condition of employment, do
at least $3,500 business per month. Alexander's testimony that Strube
agreed he would be under a probationary period and that there was a
S3,500 "quota" is accorded little weight because, in addition to my unfa-
vorable impression of his general testimonial demeanor and his evasive-
ness and incredibility on other points, it contradicts his own testimony
that he knew not of any IAM contract when Strube was hired, he makes
no claim that he was referring to any Teamster contract provision; and
Respondent expressly raised the IAM probationary clause as the authori-
ty pursuant to which Strube was terminated only after he was terminat-
ed. I regard Alexander's testimony as an effort to shore up Respondent's
defense and a distortion of what actually occurred. I am convinced
Strube was not given to understand that he would be fired if he did not
do S3,500 worth of business a month, but was given to understand he
would get a bonus if he exceeded that figure
Alexander also testified before me that there had never
been any economic layoffs before Strube.
Strube started work on April 6. About 2 weeks later
he saw an IAM sign in the service pit. He asked Hoff-
mann, who had remained on the job a couple weeks to
train Strube, "how come." Hoffmann explained he was
an IAM member. Strube called Poole the same day, tell-
ing him he was being paid Teamsters wages and just
found out it was a Machinists job.
A couple of days later, Strube talked to Smith about
the problem and was informed that Smith would find out
from St. Louis, Respondent's main office location, which
union Strube should join. On April 29, Smith told him
St. Louis had said Strube should join the Teamsters
Union.
On May 1, Smith called Poole and asked him what to
do with some dues authorization forms he had received
from the IAM with respect to Strube. After some con-
versation about the necessity of completed IAM forms
for Strube, Smith asked Poole to send him a copy of the
IAM contract, and advised Poole that Banner would get
out of that contract if there were any possible way to do
it. Poole pointed out that the Machinists contract with
Respondent covered Strube's job, and stated that it
would continue to and the IAM would fight Respondent
for that work. Poole forwarded a copy of the contract to
Smith that day.
Poole stopped by Respondent's Belleville facility about
11 a.m. on May 26. After talking briefly to Strube, he
proceeded to Smith's office where he asked if the situa-
tion had changed with respect to Strube's IAM member-
ship. Smith said it had not, and Poole advised him of
payments due to pension and health and welfare funds
on Strube's behalf. Smith told Poole such payments were
up to the St. Louis office, and, on Poole's request, re-
ferred him to Alexander as the man in charge.
Smith agrees that the message that the St. Louis office
wanted Strube to join the Teamsters Union was con-
veyed to Strube several times, and that he asked Strube
to go down and sign up with the Teamsters in accord-
ance with this desire of Respondent. Shortly after noon
on May 26, Smith told Strube to clean up and go to the
office because there was a Teamsters representative there
wanting to talk to Strube. Strube did so, as did Smith
who was present during the ensuing conversation. When
Strube arrived, he was met by Teamsters Agent Hicks
who handed him some papers and said he wanted Strube
to fill them out to join the Teamsters. Strube ventured
that he did not think he should because he did not think
the IAM would condone it. Hicks then advised Strube
the IAM was getting out of the tire business and the
Teamsters Union was taking it over. Strube suggested
Hicks talk to the IAM about his membership. Hicks
agreed that would be a good idea, and left. After Hicks
left, Strube asked Smith if his work was satisfactory,
Smith said he had no complaints.
At or about II or 11:30 a.m. on May 29, Poole tele-
phoned Alexander and told him that he understood Re-
spondent planned to operate the Belleville facility with
Teamsters and had been trying to force Strube to join
the Teamsters Union. Poole continued that the IAM
683
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement covered Strube's work and Strube was and
would continue to be an IAM member. Alexander re-
plied that if Poole pursued this issue he (Poole) would
ultimately force the termination of Strube. Poole advised
Alexander that the two of them would have to do what
they had to do and he intended to file an unfair labor
practice charge against Respondent. 7
That same day, at or about 4:45 p.m., Smith told
Strube he was going to be laid off because Poole had
told Alexander that he would put up pickets if Alexan-
der did not pay Strube Machinists wages,8 and Alexan-
der said that he was not going to pay Strube the Machin-
ists wages and would eliminate the job before he did.
This information communicated to Strube by Smith obvi-
ously was provided to Smith by Alexander after his talk
with Poole.
On June 1, Smith handed Strube a termination letter
reading, "As of June 3rd your employment is terminated.
Our program with you did not work out as planned."
Smith did not explain what the latter sentence meant.
Strube asked to talk to Alexander when he came in.
The following day, June 2, Strube met Alexander in
the work area and asked why he had been terminated.
Alexander explained that he had to use the word termi-
nated because of the union contract. Strube asked that
the termination letter be amended by adding that his
work was good if it was. Alexander agreed to this and
the notation "Work done was satisfactory," was added to
the letter.9 In the course of the conversation Strube ac-
cused Alexander of deceiving him by hiring him as a
teamster to take over a machinist's job. Alexander denied
any deception, and said that he thought Strube knew
Hoffmann was a machinist. Strube said he did not be-
cause he had never seen Hoffmann before and knew
nothing about the job until he was employed there. Alex-
ander told Strube that the alignment rack was not
making enough money and that was why Respondent
was terminating the job, pointing out that Strube had not
done $3,500 worth of business per month. The conversa-
tion closed with Strube expressing a willingness to work
for Respondent if the union mess was straightened out,
and Alexander expressing a willingness to have him
back. I credit Strube that he did not tell Alexander or
Smith that he would like to come back to work at $7.50
per hour.
On June 6, Smith wrote a letter to the IAM informing
that Strube had been terminated on June 3 in accordance
with a provision in the IAM contract that an employee
accrued no seniority during the first 60 calendar days of
employment but was probationary and could be termi-
nated at the employer's sole discretion without any right
of recourse to the grievance procedure. Thereafter, on
June 9, Respondent mailed Strube a check for the differ-
' I do not credit Alexander's version that he told Poole that at the rate
business was going, below normal, Respondent would have to lay off
Strube.
8 The IAM contract with Respondent sets forth $9.60 per hour as the
wage for "front end man."
9 II is clear that Respondent had no complaint ahout the quality of
Strube's work.
ence between the Teamsters wages' 0 he had received
and the IAM contract rate.
Respondent proffered certain records to demonstrate
that Hoffmann produced more income than Strube in a
comparable period. The records show that Hoffmann
produced $7,359 from April 6 through June 3, 1980, as
compared to Strube's April 6 through June 3, 1981,
income production of $4,901. They also show however
that Hoffmann brought in $2,410.60 in May 1980 where-
as Strube brought in $2,695 in May 1981, and that Hoff-
mann only brought in $2,992 in June 1980. These various
figures must also be evaluated with recognition of the
fact, attested to by Alexander, that Kevin Loyette was
hired in January 1981 and did tires and repairs until he
moved completely into mechanical work at the end of
March 1981 when Hoffmann retired. I am persuaded that
Loyette took over some of the work Hoffmann had been
doing, and that therefore any comparison of the volume
of Strube's work, all of which occurred after Loyette
became completely involved in mechanical work, with
the volume of Hoffmann's work prior to his retirement is
meaningless because Hoffmann's work included in some
unknown proportion work now done by Loyette. The
joint production for Strube and Loyette for April was
$5,323, and for May it was $5,407. The total of $10,730
greatly exceeds the $7,359 of Hoffman from April to
June 3, 1980. Moreover, Alexander allots $1,550 of the
total to Strube in April and $2,500 to Strube in May.
This means Loyette did not exceed $3,500 in May, and
Respondent avers he was on the same bonus system as
Strube. Loyette is still working.
Turning to other statistics advanced by Respondent to
compare monthly volume June 1980 through May 1981
in all nine of Respondent's facilities, I note there is no
real basis on which to compare them because there are
no statistics on customers' traffic, geographical, or exact
services offered, inter alia. Moreover, the volume for the
Belleville store fell below $3,500 per month for 2
months; for 6 months in another store; 8 months, includ-
ing a period of 5 consecutive months, in another; I
month in another; and 7 months, including 5 consecutive
months in yet another. In short, Respondent's own re-
cords show three other stores repeatedly fell below the
$3,500 mark, which was applied to all of them, during a
period the Belleville store in fact only fell below the
mark twice in June and August 1980. The only three
stores which did not fall below $3,500 any month in
volume were stores whose volume was clearly much
higher than the others at all times for reasons not shown
in the record.
Conclusions
The General Counsel has shown by a preponderance
of the credible evidence that Respondent sought to
extend the coverage of its collective-bargaining agree-
t' Respondent's letter refers to the difference between "apprentice
wages" and journeyman wages, but the record clearly shows Strube was
hired at I eamsters rates. and the IAM contract does not contain a $7.50
rate for apprentices. I conclude the use of the term "apprentice" was de-
signed to disguise the fact that Respondent had been paying Strube
sages set forth ill it eanisters contract
684
tHANNIR TIRE COMPANY
ment with the Teamsters to the work performed by
Strube, notwithstanding the presence of an IAM agree-
ment covering that work. In furtherance of this objective
Respondent ignored the IAM agreement which Re-
spondent wanted to get out of. and attempted to require
Strube to change his membership from the IAM to the
Teamsters. Failing in that attempt it discharged Strube
and closed down its alignment and other front-end work
because Strube would not transfer his union allegiance
and because the IAM would not surrender the work
covered by its contract.
Certain statements to Strube by Respondent as well as
his discharge violated the National Labor Relations Act,
as amended.
Independent 8(a)(I) Violations
1. When Alexander told Strube on April 2 that he
must join the Teamsters and would have no trouble
transferring his membership from the IAM, he was clear-
ly conditioning employment on such action, and was
making an implied threat that Strube would not be em-
ployed if he did not so do. An employee cannot be re-
quired to abandon his union as a condition of employ-
ment, I nor can he be required to join a union not of his
own choosingi 2 particularly where as here that union
has no statutory or contractual status entitling it to repre-
sent him. Accordingly, I find Alexander's statements vio-
lated Section 8(a)(l) of the Act because they reasonably
tended to interfere with, restrain, and coerce Strube in
the exercise of his Section 7 right to join a labor organi-
zation of his own choosing, or to refrain from joining a
labor organization.
2. When Smith told Strube on April 29, and several
other times, that Respondent's St. Louis office, probably
Alexander who was Smith's supervisor, had said Strube
should join the Teamsters Union, his statement amounted
to a reiteration of the statements previously made to
Strube by Alexander and violated Section 8(a)(1) of the
Act for the same reasons the original statements by Alex-
ander did.
3. Respondent, by its agent, Smith, directed Strube to
meet with Teamsters Agent Hicks on May 26 and re-
mained present while Hicks solicited Strube to join the
Teamsters Union. I agree with the General Counsel that
the pressure to join a union is almost irresistible when
the employer arranges and attends a meeting with that
union for the sole purpose of securing the employee's
membership in that union. In this case that pressure was
exacerbated by the previous unlawful statements of
Smith and Alexander designed to coerce Strube into
joining the Teamsters Union, and Smith's very presence
tended to have an intimidating effect on Strube whose
wages, hours, and working conditions were subject to
Smith's control. Accordingly, I find that Respondent
violated Section 8(a)(l) of the Act by summoning Strube
to the meeting and also violated Section 8(a)(1) by re-
maining present while he was solicited by Hicks.
4. Smith's conduct in advising Strube on May 29 that
Alexander had said he would not pay Strube the wages
I Ra-Rich Manufacturing Corporation. 120 NLRIB 503. 506 ( 1958).
12 Say-On-Drugs. Inc. 227 NLRB 1638, 1643 (1771
set forth in the IAM contract but would eliminate
Strube's job before he did, accompanied by the advice
from Smith that Strube was going to be laid off, requires
little discussion. To advise an employee that his job will
be eliminated and he will be laid off because the Union,
acting on his behalf, has insisted he be paid the wages
called for by an existing valid collective-bargaining
agreement is one of the most chilling and coercive pro-
nouncements imaginable, and clearly had a reasonable
tendency to interfere with, restrain, and coerce Strube in
the exercise of his Section 7 right to choose his own
union. I find Smith did threaten Strube with discharge
because he sought and received assistance from the IAM.
The Discharge of Strube
Respondent knew from his resume that Strube was a
member of the Machinists when it hired him, and Alex-
ander then solicited his transfer from the IAM to Team-
sters membership. Respondent's motive is rather obvious.
It wanted to get rid of the IAM contract and bring all its
Belleville employees under the Teamsters agreement.
When Strube resisted all efforts to get him to join the
Team.,ters and abandon the IAM, and Poole made it
clear to Alexander the IAM would fight to retain its
contract and represent Strube, Respondent resolved to
eliminate the work and Strube, thus effectively achieving
its initial purpose of all Teamsters representation.
Respondent summarizes its position as follows:
Kenneth Strube was hired under a 60 day proba-
tionary period; he was given a quota of $3,500 of
business to produce each month: the alignment busi-
ness was slow; Banner suffered economic detriment
to the effect that the alignment business was an un-
profitable venture; and as a result Banner dis-
charged Kenneth Strube as per its rights under the
bf) day probationary period.
Banner Tire's position is that Strube was dis-
charged solely for economic reasons. Discharge of
an employee for such a business justification is not a
§8(a)(3) violation.
Although ably argued, Respondent's position is simply
not supported by the credible evidence of record. With
respect to the probationary claim, even though I do not
credit Alexander's testimony that he was totally unaware
of the existence of the IAM contract when Strube was
hired, the very fact he so testified satisfies me that he
certainly did not have that contract's probationary clause
in mind or advised Strube of any such probationary
period on hire. I am persuaded that Respondent seized
upon the probationary clause as an afterthought in an
effort to conceal the real reason for Strube's discharge.
Insofar as the $3,500 "quota" is concerned I have
found that Strube was not told he must produce that
amount of business as a condition of continuing employ-
ment, and Respondent's own records reflect that other
locations, all purportedly on the same $3,500 "quota," re-
peatedly fell below that figure but no one was dis-
charged but Strube so far as the record shows. More-
over, the Belleville facility in fact had a higher dollar
volume of "repairs-parts-labor" during both April and
685
DECISIONS ()F NATIONAl LABOR RELAT1IONS HOARD
May 1981 than it had in any of the prior 10 months
when Hoffmann was still employed. The real difference
between Strube's volume and Hoffmann's volume results
primarily from the assignment of part of Hoffmann's
work to Loyette before hiring Strube. In these circum-
stances it is obvious, particularly since the work assigned
to Loyette (who is apparently covered by the same
Teamsters contract the Respondent persistently tried to
force on Strube) produced more income than that as-
signed to Strube, that the Respondent seeks to rely on a
situation which was patently predictable and within the
knowledge of the Respondent from the outset of Strube's
employment as reason for his ultimate termination. I am
persuaded that the evidence requires a finding that the
proffer of the "quota" as a defense is pure pretext, as is
the claim of unprofitability which is not supported by
evidence proffered or adduced but rests for its validity
solely on Respondent's ipse dixit.
The failure of the purported reasons for discharging
Strube gives rise to a fair inference of discriminatory mo-
tivationi a and adds support to the General Counsel's al-
ready strong prima facie case that Respondent disposed
of Strube in order to discourage membership in the IAM
and encourage membership in the Teamsters Union. Ac-
cordingly, I find that the General Counsel has shown by
a preponderance of the evidence that the discharge of
Strube violated Section 8(a)(3) and (1) of the Act.
CONCI USIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. District 9, International Association of Machinists
and Aerospace Workers of America, AFL-CIO, and the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union
No. 50, are labor organizations within the meaning of
Section 2(5) of the Act.
3. By conditioning employment on membership in a
labor organization, Respondent violated Section 8(a)(1)
of the Act.
4. By soliciting and requiring an employee to abandon
his union membership as a condition of employment, Re-
spondent violated Section 8(a)(1) of the Act.
5. By directing an employee to meet with a union rep-
resentative for the purpose of securing the employee's
membership in that union, and by remaining present
while a union representative solicited said membership,
Respondent violated Section 8(a)(1) of the Act.
6. By threatening an employee with discharge for en-
gaging in protected union activity, Respondent violated
Section 8(a)(1) of the Act.
7. By discharging Kenneth Strube in order to discour-
age membership in one labor organization and encourage
membership in another, Respondent violated Section
8(a)(3) and (1) of the Act.
8. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
3 Sharttuck Denn Mining Corporation (Iron King Branch) v. NL.R.B.,
362 F.2d 466, 470 (9th Cir. 1966).
THI. RI.Mt I)Y
In addition to the usual cease-and-desist and posting
requirements, my recommended Order will require Re-
spondent to offer Kenneth Strube unconditional rein-
statement to his former job at its Belleville, Illinois, fa-
cility, and make him whole for all wages lost as result of
the discrimination against him, such backpay and interest
thereon to be computed in the manner prescribed in F.
W. Woolworth Company, 90 NLRB 289 (1950); and Flor-
ida Steel Corporation, 231 NLRB 651 (1977).14
The reinstatement of Kenneth Strube to the exact same
job he was separated from is necessary because it appears
to be the only job of comparable nature at the facility
and is the only job at Belleville covered by the IAM
contract which Respondent seeks to avoid by unlawful
means. To permit Respondent to proffer alternative rein-
statement would amount to giving Respondent license to
accomplish the very end, total representation at the
Belleville store by the Teamsters, that it sought to ac-
complish by the unfair labor practices found herein.
Moreover, the alignment and other equipment formerly
used by Strube in his work is still located at the Belle-
ville store. The fact that Respondent is now subcontract-
ing the work out which was previously performed by
Strube is no obstacle inasmuch as the subcontracting is
the result of an unfair labor practice and cannot prevail
over Strube's reinstatement rights.'5
Pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER' 6
The Respondent, Banner Tire Company, Belleville, Il-
linois, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Conditioning employment on membership in a
labor organization.
(b) Soliciting and requiring employees to abandon
their union membership as a condition of employment.
(c) Directing employees to meet with union repre-
sentatives for the purpose of securing employees' mem-
bership in that Union and/or remaining present while
union representatives solicit said membership.
(d) Threatening employees with discharge for engag-
ing in protected union activity.
(e) Discharging employees, or otherwise discriminat-
ing in any manner with respect to their tenure of em-
ployment or any term or condition of their employment
for the purpose of encouraging or discouraging union
membership.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
14 See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
' See Everspray Enterprses. Inc., 253 NLRB 922 (1980).
i6 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
BANNER TIRE COMPANY
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Offer Kenneth Strube immediate and full reinstate-
ment to his former job without prejudice to his seniority
or other rights and privileges previously enJoyed, and
make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him in
the manner set forth in the section of this Decision enti-
tled "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 recommended Order.
(c) Post at its Belleville, Illinois, facility, copies of the
attached notice marked "Appendix.""' Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being signed by Respondent's authorized
agent, shall be posted by it 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, Rea-
sonable steps shall be taken by the Respondent to insure
that these notices are not altered, defaced, or covered by
other material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
17 In the event that this Order is enforced by a Judgment ofr a United
States Court of Appeals. the words in the notuce reading "Posted h'
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enflorcing an
Order of the National Labor Relations Board"
APPENDIX
No-ricl To EMPl o uiltS
POSI E) HRI ORDI)R 01 TllE
NA IION:I LABOR RHl ATIONS BOARD
An Agency of the United States Government
WE wii i. No-T discharge or otherwise discrimi-
nate against our employees for the purpose of en-
couraging or discouraging union membership.
WE wiit . Nor threaten employees with discharge
because they engage in protected union activities.
WE Wli.t. NOTI condition employment on mem-
bership in a labor organization.
Wi w'it.I NOtI solicit or require employees to
abandon their membership in District 9. Internation-
al Association of Machinists and Aerospace Work-
ers, AFL-CIO, or any other labor organization, as
a condition of employment.
WE wit i. NOT direct our employees to meet with
union representatives for the purpose of securing
their membership in that union, nor will we remain
present at any meeting where union representatives
solicit union membership from our employees.
WE wil.t. NOI in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
Wt wiL. offer Kenneth Strube immediate and
full reinstatement to his former job, without preju-
dice to his seniority or other rights and privileges
previously enjoyed, and make him whole for any
loss of pay he may have suffered as a result of our
discrimination against him, with interest computed
thereon.
BANNFR TIRE COMPANY
687