Cashman Auto Co.

National Labor Relations Board - Board Decisions

Mar 26, 1952

98 N.L.R.B. 832 (N.L.R.B. 1952)

832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee, or prospective employee, who does not have a work referral from
the Respondents
The Respondent having committed unfair labor practices which resulted in
the termination of Vowell's employment, it will be recommended that the Re-
spondent make him whole for losses suffered by reason of the Respondent's
unlawful conduct," by payment to him of a sum of money equal to the amount
he normally would have earned as wages from January 3, 1951, the date of
his release from employment, to 5 days after the date when the Respondent
notifies Sesco in writing that it has no objection to his being employed without
a referral, less Vowell's net earnings, if any, during such period, computed on a
quarterly basis in the manner established in the Woolworth case."
Upon the above findings of fact, and upon the entire record in the case, I make
the following :
CONCLUSIONS OF LAW
1. Sesco Contractors is, and at all times material herein was, an employer
within the meaning of Section 2 (2) of the Act, and engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. The Respondent, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Local No. 621, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. By causing Sesco Contractors to discharge and refuse thereafter to reemploy
Thomas K. Vowell because he did not have a work referral from the Respondent
in violation of Section 8 (a) (3), the Respondent has engaged in unfair labor
practices within the meaning of Section 8 (b) (2) and 8 (b) (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.
[Recommendations omitted from publication in this volume.]
"There is no recommendation herein that the agreement between Sesco and the Knox-
ville Building Trades Council be invalidated, as neither Sesco nor the Council are parties
in this proceeding . Consolidated Edison Co., 305 U. S 197.
. 12 The nonjoinder of the Employer as a respondent herein does not in any way lessen
the liability of Local 621. National Union of Marine Cooks and Stewards , C. I. O. and
George C. Quinley, 92 NLRB 877.
13 F. W. Woolworth Company, 90 NLRB 289.
CASHMAN AUTO COMPANY and LOCAL 841, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL, AND LODGE 1898 OF DISTRICT 38 OF INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL
RED CAB COMPANY and LOCAL 841, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMER-
ICA, AFL, AND LODGE 1898 OF DISTRICT 38 OF INTERNATIONAL ASSO-
CIATION OF MACHINISTS, AFL. Cases Nos. 1-CA-875 and 1-CA-
876. March 26, 1952
Decision and Order
On September 10, 1951, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that
98 NLRB No. 134.
CASHMAN AUTO COMPANY 833
the Respondents had engaged in and were engaging in certain unfair
labor practices in violation of the Act, and recommending that the
Respondents cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondents filed exceptions to the Inter-
mediate Report.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Houston, Murdock, and
Styles].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. 'The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the additions noted below.
1. The Trial Examiner found, and we agree, that the 'Respondents,
are joint employers engaged in commerce within the meaning of the
Act. The'record shows clearly that the Respondents, although sepa-
rate corporations, constitute a single employer by virtue of their com-
mon ownership and control, their integration of operation and or-
ganization through interchange and mutual use of work, equipment,
and personnel, and their use of common supervision, offices, and
clerical personnel, among other factors.' It is contended that Re-
spondent Red Cab is not engaged in commerce within the meaning
of the Act either individually or together with Respondent Cashman
Auto Company.' We do not agree. Respondent Red Cab, the record
shows, transports passengers to and from railway stations, airports,
and bus terminals. The Board has recently held that operations of
this type constitute an essential link in services performed by instru-
mentalities of commerce and that it will effectuate the policies of the
Act to assert jurisdiction over such enterprises' Accordingly, we
find that Respondents Red Cab and Cashman Auto Company con-
stitute a single employer, that they are engaged both separately and
jointly in commerce within the meaning of the Act, and that it will
effectuate the purposes of the Act to assert jurisdiction over these
companies.
1 The Respondents ' request for oral argument is hereby denied , as the record and the
exceptions adequately present the facts, issues , and positions of the parties.
' See The McMahon Transportation Company, Inc., 89 NLRB 1652.
The Respondents stipulated that the Cashman Auto Company is engaged in commerce
within the meaning of the Act. See Avedis Baxter and Ben Baxter, d/b/a Baxter Bros.,
91 NLRB 1480.
'See Rite Rate Cab Company, 95 NLRB 571; Red Cab, Inc., 92 NLRB 175; Skyview
Transportation Company, 92 NLRB 1664; and W. C. King, d/b/a Local Transit Lines,
91 NLRB 623.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Respondents further contend that employees Shawcross,
Pignato, and Marshall were discharged for cause., The record does
not support this assertion. The testimony at the hearing was not clear
as to whether or not the Respondents had determined, as of January
271 19519 the date of the discharges, that a number of employees would
have to be discharged in order to reduce costs.' The record is clear,
however, that whether or not such a decision might have been made,
these three men were selected for discharge because of their activity
on behalf of the Union. Their activity in organizing the employees
was open and was known to the Respondents, both because. of the
admissions of the men, themselves, and because of interrogation by
the Respondents. As the testimony conclusively shows that Mar-
shall, Pignato, and Shawcross were discharged as the ultimate result
of this activity and the knowledge thereof by the Respondents, we
find, as did the Trial Examiner, that the Respondents thereby violated
Section 8 (a) (3) and 8 (a) (1) of the Act.
3. We further find, as did the Trial Examiner, that the Respondents
by interrogation and the making of implied threats of reprisal inter-
fered with, restrained, and coerced their employees in violation of
Section 8 (a) (1) of the Act.
Order
Upon the entire record in the case, and pursuant to Section 10
(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondents, Cash-
man Auto Company and Red Cab Company, Brookline, Massachusetts,
their officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local 841, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL, and Lodge 1898 of District 38 of International Association
of Machinists, AFL, or any other labor organization of their em-
ployees, by discharging or refusing to reinstate any bf their employees,
or by discriminating in any manner in regard to their hire or tenure
of employment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
their employees in the right to self-organization, to form labor organ-
izations, to join or assist the above-named labor organizations or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
" The necessity for reduction of personnel because of economic reasons was the major
defense relied upon by the Respondents . The Trial Examiner found, and we agree,
that the other reasons cited for the discharge of these three men were not substantiated
by the record and are patent afterthoughts.
CASHMAN AUTO COMPANY 835,
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities
except to the extent that such right may be affected' by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Francis D. Marshall, Nunzio J. Pignato, and Glennon
E. Shawcross immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority or
other rights, and make them whole for any loss of wages suffered as
a result of discrimination against them in the manner described in
"The Remedy" section of the Intermediate Report.
(b) Post at their plants in Brookline, Massachusetts, the notice
attached hereto marked "Appendix A." 6 Copies of such notice, to
be furnished by the Regional Director for the First Region, shall, after
being duly signed by the Respondents' authorized representative, be
posted by the Respondents immediately upon receipt thereof and
maintained by them for sixty (60) consecutive days in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for the First Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist LOCAL 841, INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA, AFL, AND LODGE 1898 OF DISTRICT
38 OF INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL, or any
other labor organization, to bargain collectively through repre-
In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentatives of their own choosing, and to engage in other con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activi-
ties, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the
Act.
WE WILL offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination against them :
Francis D. Marshall
Nunzio J. Pignato
Glennon E. Shawcross
All our employees are free to become or remain members of LOCAL
841, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA, AFL, AND LODGE 1898 OF DIS-
TRICT 38 OF INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL, or
any other labor organization or to refrain from any such activity, ex;
cept to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the Act. We will not
discriminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of membership
in or activity on behalf of any such labor organization.
CASHMAN AUTO COMPANY,
RED CAB COMPANY,
Employer.
By --------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by Local 841, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, A. F. L, and Lodge 1898
of District 38 of International Association of Machinists, A. F. L, collectively
called the Union herein, the General Counsel of the National Labor Relations
Board, respectively called herein the General Counsel and the Board, by the
Regional Director for the First Region (Boston, Massachusetts), consolidated
CASHMAN AUTO COMPANY 837
the above-entitled cases by order dated June 21, 1951, and issued a complaint on
the same date, against Cashman Auto Company and Red Cab Company, herein
called Respondent Cashman and Respondent Red Cab, respectively, or at times
referred to collectively as the Respondents, alleging that the Respondents have
engaged in, and are engaging in, unfair lallor practices affecting commerce within
the meaning of Section 8 (a) (1), and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, as amended, 61 Stat. 136,'herein called the Act.
With respect to the unfair labor practices, the complaint alleges that (1)
Respondent Red Cab is a wholly owned subsidiary of Respondent Cashman,
and is a joint employer with Respondent Cashman of the employees involved
herein; (2) from on or about January 8, 1951, the Respondents engaged in
certain acts of interference, restraint, and coercion; and (3) on or about Janu-
ary 27, 1951, the Respondents discharged Francis D. Marshall, Nunzio J.
Pignato, and Glennon E. Shawcross, and thereafter failed and refused to rein-
state them for the reason that they had joined or assisted the Union or had
engaged in concerted activities for the purpose of collective bargaining or other
mutual aid or protection.
The Respondents filed separate answers in which they denied the jurisdic-
tional allegations of the complaint and the commission of any unfair labor
practices Both answers also denied that Respondent Red Cab is a wholly
owned subsidiary of, or a joint employer with, Respondent Cashman.
Pursuant to notice, a hearing was held at Boston, Massachusetts, from July
16 to 20, 1951, inclusive, before the undersigned Trial Examiner. The General
Counsel and the Respondents were represented by counsel, and the Union by
its representatives. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded all
parties. At the start of the hearing, counsel for the Respondents moved to sever
the case against Respondent Red Cab from that against Respondent Cashman.
The motion was denied. The Respondents renewed the motion to sever at the
close of the hearing. Ruling on the motion was reserved. The motion to
sever is hereby denied. The General Counsel moved to conform the pleadings
to the proof, as to names, dates, and other minor variances. The motion Was
granted without objection. The General Counsel and Respondents have filed
briefs with the Trial Examiner after the close of the hearing.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
A. Cashman Auto Company
Respondent Cashman is a Massachusetts corporation with its office and place'
of business in Brookline, Massachusetts. It is a franchised dealer of Chrysler-
Plymouth automobiles, and also deals in used automobiles.
During the calendar year 1950, its gross sales amounted to $731,116.16. The
cost to Respondent Cashman of the goods sold during said period amounted
to $662,516.42.
It was stipulated at the hearing that Respondent Cashman is engaged in
interstate commerce within the meaning of the Act.
B. Red Cab Company 4
Respondent Red Cab is a Massachusetts corporation with its principal office
and place of business in Brookline, Massachusetts. It is engaged in the trans-
998666-vol. 98-53-54
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
portation of passengers by taxicab to and from various locations within Massa-
chusetts, principally in or near Brookline, including bus terminals, railroad
stations, and the Logan International Airport at East Boston.
During the calendar year 1950, its gross receipts amounted to $610,423.78.
All of its taxicabs, parts, gasoline, and various other items used in the conduct
of its business are purchased through Respondent Cashman. It appears that
such 'purchases for the most part are made either at cost or at,a nominal
profit to Respondent Cashman. Respondent Red Cab leases its tires from the
B. F. Goodrich Tire Comrany, of Akron, Ohio. Tires which are on the taxicabs
when purchased are removed and stored "in reserve" on the premises of
Respondent Cashman.
C. Corporate and business connections of the Respondents
Edward F. Cashman is the president, treasurer, and a director of both Respond-
ents. Through a trust, he either owns or controls about 100 percent of the
stock of Respondent Cashman, and about 90 percent of the stock of Respondent
Red Cab: He actively manages and determines the business `affairs of both
Respondents, including personnel and labor relations. 'Cashman's sister, Flor-
ence Cashman, also is a director of both Respondents,
William Macdonald is a supervisory employee, within the meahing of the
Act, of Respondent Red Cab ; and he is a director of Respondent Cashman. He
receives a weekly salary from each Respondent. The evidence also indicates
that Macdonald acted as the "General Manager" for both Respondents."
Both Respondents occupy a common office in Brookline and have the same
office manager and clerical force. Each have telephones in this office.
Respondent Cashman's premises consist of two adjacent buildings, where it
has its repair and body shops and parts department. Respondent Red Cab's
repair shop and drivers' room also are located on these premises under a rental
agreement. Respondent Red Cab also stores its equipment on this property.
Arthur Bradford is the "night service manager" of both Respondents.
The evidence discloses an interchange of employees and integration of the
work of both Respondents. Employees at times were transferred from the
payroll of one Respondent to that of the other. In at least one instance, a
mechanic of Respondent Cashman was assigned temporarily to the repair shop
of Respondent Red Cab; and he remained on Respondent Cashman's payroll
-during that time. When he first was hired by Macdonald, employee Shawcross
was assigned to work in the repair shop of Respondent Red Cab by the foreman
of Respondent Cashinan's repair shop. Employees of Respondent Cashman
frequently performed work on the cabs of Respondent Red Cab. It appears that
no specific charge was made to Respondent Red Cab on much of this work as it
was not covered by "job tickets."
Accordingly, from all of the evidence I find that the Respondents are joint
employers as alleged in the complaint .2 I further find that the Respondents
are engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Local 841, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, A. F. L., and Lodge 1898 of District 38 of the
'The Respondents contend that Macdonald was not the general manager. However,
the testimony discloses that Macdonald gave orders to supervisors and employees of both
Respondents ; and that when he answered the telephone, he identified himself as the general
manager. The employees, including Benjamin Tileston, who formerly was the office man-
ager for both Respondents, considered Macdonald to be the general manager.
I Clarksburg Paper Co., 80 NLRB 1304; Mission Oil Co., 88 NLRB 743.
CASHMAN AUTO COMPANY 839
International Association of Machinists , A. F. L., are labor organizations which
admit to membership employees of the Respondents.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events; interference , restraint , and coercion
During the early part of January 1951, Glennon Shawcross , a mechanic in
the repair shop of Respondent Red Cab, secured union-authorization cards from
a representative of the Union.' A committee of three was formed for the pur-
pose of organizing the Respondents ' employees . Shawcross, Frank Marshall,
and Nunzio Pignato, employees of Respondent Cashman, were the members of
this committee ; and thereafter they spoke to other employees about the Union
and solicited them to sign union cards.
On January 18, 1951 , General Manager Macdonald questioned Herbert Norton,
an employee of Respondent Cashman, as to what he knew about the Union. It
is found that Macdonald 's interrogation of Norton constitutes interference, re-
straint, and coercion.
After the above conversation and at about 5: 30 p. m. that same day, Mac-
donald had a conversation with Shawcross and James Lannigan, an employee
of Respondent Cashman. Macdonald said to Shawcross, "I have just heard the
shop is 70 percent union. Do you know anything about it?" Lannigan said
that Marshall had told him that fact when he (Marshall) asked him to join
the Union. Macdonald then related a story about the union organization of
Respondent Red Cab's drivers and stated, "We hunted and hunted and never
found the instigator to this day. That is what we are looking for now. We
want to find the instigator." Macdonald asked Shawcross if he was a "union
man" ; and Shawcross replied that he had been a member of the Union for, a
number of years. Norton and employee McGovern then joined the group. Con-
cerning the ensuing conversation, Norton testified credibly as follows :
This time Shawcross was in there, and this time both McGovern and I
went inside. The first thing I got inside the door Macdonald came over
to me and asked what was this about 70 percent of the shop being Union.
... About 70 percent of the shop being Union. So I didn't know what
was going on or anything, and I didn't want to get in trouble ; so I just
told him that I didn't know anything about it. I Just let them talk a bit
so I could catch on to what they was talking about, and then he started
talking to Glenn Shawcross, and he told Glenn that they didn't need the
Union in the shop there, that Mr. Cashman had always been willing to help
out anybody that needed any help and that Mr. Cashman had always helped
out, you know ; and he cited several cases where Mr. Cashman had helped
out people that needed help, people that was down and out. And all the
time Mr. Macdonald kept repeating he wanted to get at the bottom ; he
wanted to get at the instigator. He said this several times, probably half
a dozen, at least.
So we started in to go home, and we
room, and Bill Macdonald asked me if
Shawcross told Bill Macdonald I had
Fay's, so naturally I had been a Union
and Macdonald said, "Well, if you bear
to get at the bottom of this. I want the
got outside the door of the drivers'
I belonged to the Union, .. .
joined the Union when I worked at
man. So then we started in to go,
anything, I want to know. I want
instigator."
3 At the hearing the General Counsel stated for the record that the Respondent 's employees
"were joining that local-that joint committee of that local of the Teamsters and the IAM.
They were joining both organizations."
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From the above remarks of Macdonald, it is clear that he was interrogating the
employees concerning their union membership and sympathies and that he was,
making implied threats of reprisal. Accordingly, it is found that by such state-
ments the Respondents interfered with, restrained, and coerced their employees.
During the morning of January 19, Shawcross approached Macdonald and told
him that he was "the instigator" of the union movement. Macdonald then took
Shawcross to the office and talked to him for more than an hour about the Union.
During this conversation, Macdonald questioned Shawcross as to why he had
started the Union in the plant and concerning the number of employees who were
adherents of the Union. He stated that no employee would be discharged be-
cause of union activity and that he did not understand why "Pignato should be
dissatisfied." It is found that Macdonald's interrogation of Shawcross consti-
tutes interference.
On January 23, Macdonald spoke to Fred Healy , a mechanic in Respondent
Cashman's repair shop. Macdonald asked Healy what he thought about the
Union and if he was a member. When Healy told him that he had not joined
the Union, Macdonald said, "We will find out who started this ... and nip it in
the bud before it gets started." It is found that Macdonald's statements to
Healy constitute interference.
On January 26, Marshall, Edwin Gorman, foreman of Respondent Cashman's
repair shop, and employee Fagan met in a tavern after working hours.* During
a discussion of the Union, Gorman stated that "they have known right along"
that Marshall was "a hundred per cent union man."
• Marshall, Pignato, and Shawcross were discharged on January 27, 1951. Gor-
man discharged Marshall and Pignato, telling them that he was acting upon in-
structions from Bradford, the night service manager. Frank PoskuS, foreman
of Respondent Red Cab's repair shop, similarly notified Shawcross of his dis-
charge. No reasons for the discharges were given at the time.
On January 30, Macdonald again spoke to Healy and asked him if he had heard
anything further about the Union. It is found that Macdonald's interrogation of
Healy constitutes interference, restraint, and coercion.
B. The discharge
Marshall was employed by Respondent Cashman as a mechanic in its repair
shop since about July 1948. It appears from the record that he was one of the
most experienced and highest paid mechanics in that shop. He performed al-
most all of the automatic transmission -work of Respondent Cashman. There
were two or three of such jobs in the shop each week, on the average. During
the summer of 1950, when Marshall was on his vacation, Healy worked on an
automatic transmission but was unable to complete it. Marshall was called
back from his vacation to perform the work. For an undisclosed period of
time after Marshall's discharge, Respondent Cashman sent its automatic trans-
mission work to another company. Thereafter, it appears that employee Lan-
nigan performed most of such work. As related above, Gorman was the foreman
in Respondent Cashman's repair shop.
Pignato first was employed as a mechanic's helper by Respondent Cashman
during about 1946. At the time of his discharge, he was "assistant parts man."
It appears that this job for the most part required Pignato to go to various
concerns in or near Brookline or Boston in order to obtain parts for Respondent
Cashman's parts department. He also operated a towing truck, which involved
making service calls for both Respondent Cashman and Respondent Red Cab.
After Pignato's discharge, his duties were absorbed by other employees of the
Respondents, one of whom was a cab inspector of Respondent Red Cab,
CASHMAN AUTO COMPANY 841
Shawcross was employed as a mechanic in the repair shop of Respondent Red
Cab. He was hired about September 1950, or at about the same time as his
foreman, Poskus. It is undisputed that Shaweross was an experienced me-
chanic and that he taught Poskus how to use some of the machinery and equip-
ment in the shop. -
In substance, the Respondents contend that because of "a serious decline in
business" during 1950 it became necessary to reduce personnel ; that Marshall
"had been guilty of excessive absenteeism" ; that with respect to Pignato, it
was decided that the employment of "a special employee" for operation of a
"pickup truck" was not warranted; and that Shawcross was "the last person
hired [as a mechanic] and therefore, ranked last in seniority " Respondents'
witnesses, including Edward Cashman,'testified to the effect that the Respondents
lost money during the calendar year of 1950; and that insofar. as the loss of
Respondent Cashman was concerned, it mainly was attributable to the repair
shop. Copies of tax returns for the Commonwealth of Massachusetts were
received in evidence. These- returns purport to show that during the calendar
year 1950 Respondent Cashman sustained a loss of $11,466.26; and that Re-
spondent Red Cab lost $1,377.43.'
There is no claim by the Respondents that there was a lack of work in the
repair shops. In fact, the evidence conclusively shows otherwise. Before and
after the discharges, Respondent Cashman employed part-time mechanics for
holiday, Sunday, and night work. The regular workweek of the employees in
the repair shops was 54 hours, except for Marshall who worked only 50 hours
since he did not work on Saturdays. The evidence discloses that the employees
performed considerable overtime work for which they were paid time and a half.
Pignato worked about 60 hours per week.
Cashman testified to the effect that at sometime during January he decided
to reduce personnel upon the advice of the "experts"; that he conferred with.
Gorman and Poskus and told them that they would have to discharge some men ;
and that he left the selection of the men to be discharged to their discretion.
Eileen Iriscoll testified that she conferred with Cashman at sometime during
January ; that at about that time and after reviewing "statements" which had
been prepared by Respondents' auditors, she came to the conclusion that the
repair shop of Respondent Cashman was overstaffed ; and that as of the date of
her testimony her conclusions with respect to Respondent Red Cab were not
completed.'
As found above, at the time of the discharges, Gorman and Poskus told the'
employees that orders for the terminations had come to them, through Bradford,
the night service manager. Marshall also testified credibly that at the time
Gorman told him, "I was told to let you go. I had nothing to do with it"; and
that about a month after his discharge he spoke to Bradford who told him
that the night before the discharges Cashman told him (Bradford) to direct
the day supervisors to discharge the employees.' Cashman testified "I don't
remember" when questioned as to whether he had given Bradford the names of
' These exhibits were received over the objection oR the General Counsel. Eileen Driscoll,
an efficiency expert whose firm had been retained by the Respondents for some months
before the hearing, testified , in substance , that she had not prepared the original returns,
that the figures on the exhibits were copied by her from the originals ; and that she checked
the figures thereon with the original records of the Respondents.
5 Office Manager Tileston testified that he had no knowledge of any efficiency experts' or
any other such persons examining Respondents ' books and records at any time until shortly
before he resigned his position in March. Driscoll at first testified that she started her
work for the Respondents on about March 16.
Bradford did not appear at the hearing as a witness.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees to be discharged. Poskus testified "I don't recall" when asked
if Bradford had told him to discharge Shawcross.
. Gorman testified that Marshall frequently was absent from work without
authorization. He also testified that Pignato took too much time when he was
away from the shop after parts. Poskus testified concerning an alleged incident
when Shawcross threw down his tools in anger. Their testimony in this con-
nection apparently was offered to show the reasons why they allegedly selected
Marshall, Pignato, and Shawcross for discharge. However, it is clear from the
credible evidence, and I find, that Bradford told Gorman and Poskus which
employees were to be discharged. Further, it is apparent from the credible
evidence that these alleged reasons for discharge were afterthoughts or pretexts.'
In my opinion the General Counsel made a prima facie case of discrimination
against the three employees involved. The Respondents failed to meet this
with substantial evidence. Accordingly, I find that by discharging Marshall,
Pignato, and Shaweross on January 27, 1951, the Respondents violated Section
8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring
in connection with the operations of the Respondents described in Section I,,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices,
the Trial Examiner will recommend that they cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondents on January 27, 1951, discriminatorily
discharged Francis D. Marshall, Nunzio J. Pignato, and Glennon E. Shawcross.
At the hearing on July 18, 1951, the Respondents offered the three employees
immediate and full reinstatement. Notwithstanding such offer, it will be rec-
ommended that the Respondents offer each of the said employees -immediate
and full reinstatement to his former or substantially equivalent position without
prejudice to his seniority or other rights or privileges. It will be further rec-
' ommended that the Respondents make whole each of the said employees for any
loss of pay he may have suffered by reason of the Respondents' discrimination
by payment of a sum of money equal to that which each would have earned
as wages from the date of the discrimination to July 18, 1951, the date of
Respondents' offer of reinstatement at the hearing less his net earnings during
said period. Loss of pay shall be computed on the basis of each separate calendar
quarter or portion thereof during, the period from the Respondents' discrimina-
tory action to the date of a proper offer of reinstatement. The quarterly periods,
hereincalled quarters, shall begin with the first day of January, April, July, and
October. Loss of pay shall be determined by deducting from a sum equal to
which he would normally have earned for each such quarter or portion thereof,
his net earnings, if any, in other employment during that period. Earnings in
7 Healy testified that during 1950 he was absent from work without authorization at
least four times. He was still in the employ of Respondent Cashman at the time of the
hearing. Shaweross admitted getting angry upon occasion , but denied throwing his tools
on the floor . His denial is credited.
CALVINE COTTON MILLS, INC. . 843
one particular quarter shall have no effect upon the back-pay liability for any
other quarter. In accordance with the Woolworth decision,' it will be recom-
mended that Respondents, upon reasonable request, make available to the Board
and its agents all records pertinent to an analysis of the amount due as back
pay.
It also has been found that the Respondents engaged in certain acts of inter-
ference, restraint, and coercion. The unfair labor practices found reveal on
the part of the Respondents such a fundamental antipathy to the objectives of
the Act as to justify an inference that the commission of other unfair labor
practices may be anticipated. The preventive purposes of the Act may be frus-
trated unless the Respondents are required to take some affirmative action to
dispel the threat. It will be recommended, therefore, that the Respondents
cease and desist from in any manner interfering with, restraining, or coercing
their employees in the exercise of rights guaranteed by the Act.
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. Local 841, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, A. F. L. and Lodge 1898 of District 38 of Inter-
national Association of Machinists, A. F. L., are labor organizations within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of the
employees named above, the Respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the Respondents have en-
gaged in and are engaging in unfair labor practices within, the meaning of
Section 8 (a) (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.
.[Recommendations omitted from publication in this volume.]
IF. W. Woolworth Co., 90 NLRB 289.
CALVINE COTTON MILLS, INC., PLANT No. 2 and TEXTILE WORKERS
UNION OF AMERICA, CIO, PETITIONER . Cclse No . 344RC--314.
March 27,1952
Decision and Order
On May 24, 1951, pursuant to a stipulation for certification upon
consent election, an election by secret ballot was conducted under the
direction and supervision of the Regional Director for the Fifth
Region, among employees in the stipulated unit. Upon the com-
pletion of the election, a tally of ballots was furnished to the parties.
The tally reveals that of approximately 125 eligible voters, 116 valid
98 NLRB No. 132.