Crystal Tire Co.

National Labor Relations Board - Board Decisions

Jun 19, 1967

165 N.L.R.B. 563 (N.L.R.B. 1967)

CRYSTAL TIRE CO. 563
Crystal Tire Co. and Automotive , Petroleum
and Allied Industries Employees Union,
Local 618, affiliated with International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America.
Case 14-CA-3925.
possible economic consequences of unionization,
but were threats of economic loss to employees if the
Union was selected as bargaining representative.
Accordingly, we find that by these statements
Respondent further violated Section 8 (a)(1) of the
Act. 2
June 19, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On January 3, 1967, Trial Examiner Melvin
Pollack issued his Decision in the above-entitled
proceeding, finding that 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 General Counsel and Respondent
filed exceptions to the Decision and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner with the following modifications:
The Trial Examiner found that Respondent had
not violated Section 8(a)(1) by engaging in the
following conduct: President Bauman's statement to
employees Lemuel and Elmer Massa that, if
unionized, Respondent would have to stop work on
its new recap shop, Respondent could not keep all of
its employees if it had to pay union scale,
Respondent would have to shutdown, Lemuel and
Elmer Massa should join their brother at the
Chrysler plant if they wanted a union, they would be
hurt by the Teamsters contract, Respondent could
not pay overtime at Teamsters rates, and
Respondent would have to "cut everybody to 40
hours" if it had to pay Teamsters rates. The Trial
Examiner concluded that these remarks amounted
to "a permissible expression of ... views on" the
"possible economic consequences" of having to deal
with the Teamsters. We disagree with the Trial
Examiner's conclusion.
In the context of Respondent's other unfair labor
practices, these statements by President Bauman,
fairly understood, were not mere predictions of the
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Crystal Tire
Company, Crystal City, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified:
1. Delete 1(b) of the Trial Examiner's
Recommended Order and substitute therefor:
"(b) Threatening employees with discharge, with
changes in their terms of employment, reduction in
working hours, closing down the store, or other
reprisal, because of their organizing activities."
2. Delete the second indented paragraph of the
notice attached to the Trial Examiner's Decision and
substitute therefor:
WE WILL NOT threaten employees with
discharge, with changes in their terms of
employment, reduction in working hours,
closing down the store, or other reprisal,
because of their organizing activities.
' The Trial Examiner excluded James Bauman, the son of
President Bauman, from the unit because he enjoys special
status Member Brown would also exclude James Bauman, but on
the ground of his family relationship See fn . 4 of Dan Howard
Mfg Co , and Dan Howard Sportswear , Inc, 158 NLRB 805, and
cases cited therein
s Wausau Steel Corporation , 160 NLRB 635 , enfd 377 F.2d 369
(C A 7).
Chairman McCulloch would not find a violation of Section
8(a)(1) of the Act in Bauman's statement to the Massas that they
could join their brother at the Chrysler plant if they wanted a
union.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN POLLACK, Trial Examiner: This case was heard
before me at St. Louis, Missouri, on September 19, 20, 27,
and 28, 1966 , pursuant to a charge filed on March 21, 1966,
an amended charge filed on April 15, 1966, and a
complaint issued on May 5, 1966. The complaint presents
questions as to whether Respondent violated Section
8(a)(1) of the Act by interfering with, restraining, and
coercing its employees in the exercise of their rights of
self-organization, and whether Respondent violated
Section 8(a)(3) and (1) of the Act by discharging an
employee in order to discourage membership in the
Charging Party, herein called the Union.
165 NLRB No. 82
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record,' including consideration of
briefs filed by Respondent and the General Counsel, and
upon my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Missouri corporation, maintains an office
and place of business at Crystal City, Missouri, where it is
engaged in the manufacture, sale, and distribution of
reconditioned automobile, tractor, and trailer tires and
related products. During the year ending December 31,
1965, a representative period, Respondent sold and
distributed products whose gross value exceeded $50,000,
and in the same period bought more than $50,000 worth of
commodities from sources outside Missouri. I find, as
Respondent admits, that it is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and that it
will effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of Events
In addition to office and storage areas, Respondent
maintains a salesroom, a service department for the repair
and changing of tires, and a shop for the recapping of tires.
It had about 14 employees, exclusive of office clericals,
when the Union started an organizing campaign in March
1966, following a telephone call from recap shop employee
Lemuel Massa and service department employee Leroy
White. Lemuel Massa and his brother Elmer, a service
department employee, signed cards on Wednesday,
March 16, 1966,2 designating the Union as their collective-
bargaining representative. Their brother, Clinton, a part-
time employee in the recap shop, signed a card the next
day.3 On Thursday evening, March 17, Lemuel and Elmer
Massa , White, recappers William Middleton and Leonard
Moreland, and service department employee William Cox
met at Cox's house with Edward Struckman, an assistant
business representative of the Union. White, Cox,
Middleton, and Moreland signed union cards during the
course of this meeting. Struckman said he had "a majority
i The General Counsel and Respondent have filed motions to
correct the record Respondent has also filed a motion objecting
to three changes proposed by the General Counsel. As noted
hereafter, my findings are not affected by the disputed testimony
I therefore shall permit the disputed testimony to stand as
submitted by the reporter and otherwise grant the motions to
correct the record.
R All dates are in 1966, unless otherwise noted
3 Clinton Massa was laid off about noon on March 18.
Respondent had hired a full-time recapper , Orville Casto, the day
before Casto was to report for work on Monday, March 21, but
actually reported a day later.
4 Respondent contends that the four cards signed at the
meeting were invalid because Struckman represented that the
cards would be used only to obtain an election and that employees
who failed to sign cards during the Union's organizing campaign
of the cards" and would send a letter "asking for
recognition" to Respondent's president, Russell Bauman,
the next day. He added that the cards would be used to
obtain a Board election if Bauman refused to recognize the
Union.4
About 8 a.m. on Friday morning, March 18, Leroy White
and Elmer Massa asked driver-salesman Alfred Buese to
sign a union card. Buese said he would not sign a card
because he was going to resign that morning to take
another job. Shortly thereafter, Buese spoke to President
Bauman in his office and resigned, effective March 26.
About 9:30 a.m., Bauman called Elmer Massa into his
office and asked him if he had "started the union
business." Massa said "No," and Bauman then asked if it
was White. Massa replied that he "didn't think Leroy had
sense enough to start a union." Bauman asked Massa what
he thought of the Union and Massa replied that he would
be "a damned fool" not to believe in a union that "was
trying to get in." Bauman said he was "going to let Leroy
go that day."
Bauman left the store after this conversation with Elmer
Massa and drove his car to an automobile body shop to
arrange for the painting of a truck and to drive back driver-
salesman Milburn Halbrook, who had driven the truck to
the body shop. On the trip back to the store, Halbrook told
Bauman that it was "none of [his] business" but that "the
boys in the back are talking about going union" and "they
tell me I have to go union ." Halbrook said he was "not
interested in going union" and Bauman, who was
"flabbergasted" according to Halbrook, said that he
believed Halbrook would not have to go union because he
was a salaried employee.
After returning to the store about 11:30 a.m., Bauman
told Elmer and Lemuel Massa to report to his office. As
the brothers approached Bauman's office, Elmer told
Lemuel that Bauman was going to fire White because he
thought White started the Union. According to the Massas,
Bauman opened the conversation in the office by asking
the brothers if they were trying to "sell [him] down the
river" and telling them to join their brother, Clinton, at the
local Chrysler plant if they wanted a union. Showing the
brothers "papers" on profits, he said that he could not
afford "to go for a union ," he could not "keep all the help"
if he had to pay union wage rates, he would not be able to
build "his new [recap] shop across the street," and he
would have to shut down. Lemuel Massa complained that
he had to work "50 hours a week for a hundred dollars"
and Bauman asked him, "What would it take, a hundred
dollars for about 40 hours?" Lemuel replied that it would
not be fair to "White and the other boys outside" to take it.
Bauman said "It would be fair." He also said that White
would have to pay the Union 's regular initiation fee of $ 100 for
service department employees and $150 for recap shop employees
rather than a special initiation fee of $10 Except for Middleton
who testified that he understood Struckman to say that the cards
would be used for an election, but could not recall whether
Struckman said that was the "only" purpose of the cards, the
employees present at the meeting corroborated Struckman's
testimony that he said he would send a letter to Bauman
requesting recognition The employees also credibly testified that
Struckman said that the initiation fee for all persons employed
before the Union came in would be $10 and that the Union's
regular fee would apply only to persons hired thereafter. I find
that the four cards signed at the meeting were valid union
designations N.L R B. v. Irving Tattel , et al., d/b/a I Tattel and
Son, 261 F 2d 1, 4 (C.A 7), cert. denied 359 U.S 944.
CRYSTAL TIRE CO.
was through "after today" and they could "take that for
what it was worth."
About 1:30 p.m., Lemuel Massa told White that he was
going to be fired and described the conversation in
Bauman's office. About 2 p.m. Bauman asked White to
come into his office. White testified that Bauman told him
in the office that he was reducing his work force to 12 men
as of "this evening" and that he was laying White off
because he was going to send a lot of his work to Goodyear
and was "just not going to have the work in the service
department." According to Bauman, he told White before
discharging him, "Leroy, we are not kicking it off very
good," that Respondent had "problems everywhere," and
that it had been forced to send recap work to Goodyear.
About 6 or 6:30 p.m., Elmer Massa was waiting in the
service department for a ride home with either his brother
Lemuel or Leonard Moreland. Bauman told him at this
time that if the employees wanted a union, they ought to
get the Glass Workers Union, he would agree to a 3-year
contract with the Glass Workers, but he could not afford
Teamsters wage rates and would have to "cut everybody
to 40 hours" if he had to pay those rates. Massa said that
all the employees should be asked about the Glass
Workers and Bauman replied that there would be a
meeting. Lemuel Massa and Leonard Moreland came by,
and Bauman remarked that he had been on the phone all
afternoon and added, according to Moreland, "I don't
know who told you guys to get a union but if you are going
to get a union you ought to get the Glass Workers ... you
can settle the disputes close and I won't have to be
running back and forth to St. Louis."
On Saturday morning, March 19, Bauman received a
letter from the Union in which the Union stated that it had
been designated collective-bargaining representative by a
majority "of the employees in your company coming under
our jurisdiction" and asked for a collective-bargaining
meeting. According to Bauman, he thereupon called the
Glass Workers Union and spoke to two office employees.
He said he was being unionized, knew nothing about
unions, and wanted help. He was asked if the employees
had signed cards and said he did not know. He was
advised that the matter would be turned over to President
Beighle of the Glass Workers. He was also asked "who
they could contact up there." He gave the names of
Salesman George Holt, Foreman Courtaway, and recap
employee Middleton.5
About 9 a.m., Monday, March 21, Paul Courtaway,
foreman of the recap shop, told Lemuel and Elmer Massa,
William Middleton, Leonard Moreland, and Oscar
Baudandistle-a part-time employee in the recap
shop-that he had a luncheon date with a representative of
the Glass Workers Union. After lunch, he told these same
employees that he "had set a meeting" for them that
evening at the Glass Workers hall in Festus, Missouri.
Lemuel Massa said he "didn't want to go" but Courtaway
said, "Well, you have to go." Lemuel Massa replied that
he had already chosen his union and had no interest in the
Glass Workers, but that he would go to the meeting that
evening "if everybody else goes." Moreland testified that
Courtaway asked him twice that Monday if he was going to
the Glass Workers' meeting and that he told Courtaway
"no" each time. Cox testified that about 2 p.m.,
Courtaway told him to go to the Glass Workers' meeting
and' that he replied he "didn't have to be there." Elmer
S Bauman was taken sick that afternoon and remained away
from the store for about a week.
565
Massa testified that Courtaway told him "Lem and the
boys in the cap shop" were going to the Glass Workers'
meeting and that he said, "If everybody else is going, I will
go too." Courtaway some time later, in Cox's presence,
said to Elmer, "What the hell you mean, you ain't going,
you said you was going." Elmer replied "Bill [Middleton]
ain't going and I ain't going either."
B. Analysis and Conclusions
1. Interference, restraint, and coercion
Elmer Massa testified that President Bauman asked
him on Friday morning, March 18, whether he had
"started the union business" and, upon his denial, asked
him if it was White. Massa further testified that Bauman
told him that he was going to discharge White. Both Elmer
and Lemuel Massa testified that Bauman told them later
that morning that White was through that day and they
could "take that for what it's worth." Bauman places these
conversations in the afternoon but acknowledges first
asking Elmer Massa to tell him "something" about the
"union activities going on" and later asking the Massas
whether White was involved in the union activity. He also
acknowledges telling them that he was going to discharge
White but claims that he explained to the Massas that the
union activity put him "on the spot" because he had hired
another man and had previously decided that Friday would
be White's last day. The Massas impressed me as sincere
witnesses and gave consistent versions of their joint
meeting with Bauman. I credit Elmer Massa's testimony
that Bauman asked him if he or White had started the
union activity at the store and told him that he was going to
discharge White. I also credit the testimony of the Massas
that Bauman did not explain his concern over White's
possible involvement in union activity and said they could
take White's discharge for what it was worth.
Bauman's statement to Elmer Massa that he was going
to discharge White followed an inquiry which indicated
that Bauman suspected that White was behind the union
activity at the store. His similar statement to both Massas
concluded a conversation in which Bauman, enter alia,
showed his opposition to the Union by asking the Massas if
they were trying to "sell [him] down the river" and telling
them that he was "really hurt" because they were "doing
this behind [his] back." I find from these circumstances
that Bauman's statements that he was going to discharge
White were calculated to impress on the Massas that
White was being discharged for his union activity and
therefore were violative of Section 8(a)(1) of the Act. In the
setting of these coercive statements, and Respondent's
other unlawful conduct set forth below, Bauman's
questioning of Elmer Massa concerning his and White's
union activity must also be deemed coercive within the
meaning of Section 8(a)(1) of the Act.
I do not find, however, that Respondent violated this
section of the Act by Bauman's remarks to the Massas
that, if unionized, he would have to stop work on a new
recap shop, could not keep all his employees if he had to
pay union scale, and would have to close down. Bauman
made these remarks in the context of a claim that
Respondent could not afford union wage rates and sought
to prove his claim by showing the Massas "papers" on
Respondent's profits. I find that the record does not
warrant a finding that Bauman's remarks were other than
a permissible expression of his views on possible economic
299-352 0-70-37
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consequences if the Company had to meet anticipated
union wage demands.
I find, however, a violation of the Act in Bauman's
remark to Lemuel Massa-when Lemuel complained
about working 50 hours a week for a hundred
dollars-"What would it take, a hundred dollars for about
40 hours?" Cf. Ebner Bros. Packers, 146 NLRB 546, 548,
550. I also find that Respondent further interfered with its
employees' organizing rights by Bauman's statement to
Elmer Massa on the evening of March 18 that he would be
willing to sign a 3-year contract with the Glass Workers
Union,6 and by the conduct of Foreman Courtaway in
making arrangements for the employees to meet with a
Glass Workers representative and insisting that the
employees attend this meeting.' Bauman testified that he
spoke to Glass Workers' office personnel on Saturday,
March 19, about the Union' s organizing efforts, asked for
"help," and gave the names of Courtaway, Holt, and
Middleton as persons to "contact" at the store. Against
this background, I consider incredible Courtaway's
testimony that he acted entirely on his own the following
Monday in arranging and promoting a meeting between
the employees and the Glass Workers and find that his
activity in support of the Glass Workers was inspired by
Bauman. Accordingly, I find that Respondent violated
Section 8(a)(1) of the Act through such activity even
assuming, contrary to my finding below, that Courtaway is
an employee and not a supervisor within the meaning of
the Act.
2. The discharge of White
Leroy White started to work for Respondent on
August 16, 1965, at $1.50 an hour and was raised to $1.60
on January 22, 1966. White participated in the telephone
call which initiated the Union's campaign to organize
Respondent's employees. He signed a union card at the
union meeting on Thursday evening, March 17, and,
according to driver-salesman Buese, "did most of the
talking" when he and Elmer Massa solicited Buese to sign
a union card on Friday morning, March 18. President
Bauman later that day asked Elmer Massa if White had
started the union activity at the store and told Elmer and
Lemuel Massa that White was through and they could
"take that for what it's worth."8 As previously found,
Bauman's remarks were calculated to give the impression
that White was being discharged for his union activity.
Bauman discharged White that afternoon, allegedly
because Respondent was going to send a lot of its recap
work out and therefore was reducing its work force to 12
men.
Respondent asserts that White was discharged pursuant
to a decision made by Bauman on February 5. Bauman's
explanation for the discharge may be summarized as
follows: White was "a conscientious boy" and "a good
worker" until "the first of the year" when his work
"slowed up considerably" and he "was constantly late for
work." He was unhappy and Bauman knew "he was
looking for another job." He did not have a chauffeur's
license and "was reluctant to make service calls."
Bauman had to criticize him for sitting down in front of
customers while changing tires. On February 5, Bauman
overheard White tell a customer "that he wasn ' t making
enough money and that his wife was making more money
than he was." Bauman immediately stepped up and told
White "if he had anything to tell me about his pay or
anything else," he should "take it up with me personally."
Bauman "knew from that day on" that he was going to
discharge White and did not give him a pay increase "the
following week" when he raised Cox's pay from $1.45 an
hour to $1.60 and Elmer Massa's pay from $1.60 to $1.82
with a guarantee of $110 a week. Bauman "figured" that
he would let White go and transfer Lemuel Massa to the
service department as soon as he could find an
experienced man to replace Massa in the recap shop.
Bauman told various tire dealers that he needed such a
man and, on Tuesday morning, March 15, he interviewed
and hired a man , Orville Casto, referred to him by a tire
dealer. Casto agreed to report for work on Monday,
March 21. Clinton Massa had been buffing tires mornings
to "help out" in the recap shop while working on a night
shift at Chrysler. Bauman laid him off after he finished
work at noon on Friday, March 18, and terminated White
that afternoon. Bauman moved Lemuel Massa "up to the
service department 3 weeks after [he] hired Casto ...
about the time people started taking the snow tires off and
we started getting busy again."
Bauman does not claim that he criticized White for slow
work, for coming in late,9 or for failing to get a chauffeur's
license. On the contrary, Bauman himself described
White as being a good, conscientious worker during the
initial months of his employment and the record shows
that Bauman gave White a wage increase on January 22.10
I do not believe that Bauman, an alert businessman
actively engaged in selling at the store, would have
remained silent in the face of slow work or significant
lateness by White. I therefore find that White's work was
satisfactory up to his discharge on March 18 and that
Bauman was not concerned because White did not report
for work promptly at 8 a.m . I similarly find from Bauman's
failure to criticize White for failing to get a chauffeur's
license, that he did not regard this shortcoming as an
impediment to White's continued employment.
While the record shows that Bauman criticized White
6 In this conversation with Elmer Massa , Bauman repeated his
claim that Respondent could not afford to pay union wage rates
and said, in effect, that he would have to cut out overtime if he
had to pay those rates I find no threat of economic reprisal in
Bauman's qualified statement on overtime
The General Counsel claims, and Respondent disputes, that
Cox testified that Courtaway told him that there would be a
meeting at the Glass Workers Union and that he "had to be
there " Courtaway admits making arrangements for a meeting
with the Glass Workers The testimony of Cox considered in its
entirety, and the testimony of Lemuel and Elmer Massa and of
Moreland, shows that Courtaway used forceful language in his
efforts to get these employees to attend this meeting See In. 1,
supra
8 The General Counsel claims, and Respondent disputes, that
Elmer Massa testified that Bauman continued by saying he
"pitted the one who started the Union ." In view of my finding on
the record as reported that White was discharged to discourage
support of the Union, I consider it unnecessary to explore the
matter further and, as noted above, permit the record to stand as
reported in this respect
0 Respondent's records show that White generally reported for
work between 8 and 8 15 a in . from January 1, 1966, to his
discharge on March 18
10 I do not consider it significant that White did not get another
raise in February along with Cox and Elmer Massa Cox's raise
brought him up to the same hourly rate as White Both Elmer and
Lemuel Massa asked Bauman for raises and both got them at the
same time
CRYSTAL TIRE CO. 567
early in February for talking about his wages to a
customer, I find that the record does not support
Bauman 's claim that he decided at this time to discharge
White as soon as he could hire an experienced recap man
to replace Lemuel Massa, who would be reassigned from
the recap shop to the service department. Bauman's
alleged decision to discharge White occurred during the
"slow" season for tire sales. Yet White worked for another
6 weeks and Bauman, upon hiring Casto, discharged
Clinton Massa and did not transfer Lemuel Massa to the
service department as a replacement for White until the
"slow" season ended about the first of April. It thus
appears that Bauman's need for White's services was no
different in mid-March than in early February and that
Casto was hired as a full- time replacement for part-time
man Clinton Massa rather than as a replacement for
Lemuel Massa.
In view of Bauman's hostility to the Union, his belief or
suspicion that White was involved in union activity, his
timing of the discharge, his intimation to Elmer and
Lemuel Massa that he was discharging White for union
activity, and his unconvincing explanation for the
discharge, I find that Bauman discharged White in order
to discourage support of the Union. I therefore conclude
that the discharge was violative of Section 8(a)(3) and (1) of
the Act.
IV. THE UNION'S REPRESENTATIVE STATUS
The General Counsel contends that the Union
represented a majority of Respondent's employees when
Respondent engaged in unlawful conduct aimed at
destroying support for the Union and that this conduct was
such as to warrant a remedial provision requiring
Respondent to recognize and bargain with the Union. For
the reason stated in the section of this Decision entitled
"The Remedy," I agree that a bargaining order would be
appropriate if the Union represented a majority of
Respondent's employees in an appropriate bargaining unit
when Respondent began its course of unfair labor
practices. The issue of the Union's representative status
was fully litigated at the hearing. For the reasons given
below, I find that the Union was the majority
representative of Respondent's employees on and after
March 17.
Respondent employed 14 persons other than office
clericals on March 17. The General Counsel contends that
an "all-employee" unit is appropriate but would exclude
from this unit salesman Holt, recap employees Courtaway
and Baudandistle , and Bauman's son , James, a part-time
worker. Respondent would exclude store and driver-
salesmen from the unit but, if an "all-employee" unit is
found appropriate, would include all 14 employees in this
unit.
Respondent's driver-salesmen sell and deliver new and
recapped tires to customers on their routes and pick up
worn tires for recapping. They usually do their own loading
and unloading of tires at Respondent's store. They are
paid a salary plus a commission" but share the same
benefits as the hourly paid recap shop and service
department employees. As the work of the driver-
salesman includes a substantial amount "of manual labor
directly related to the flow of materials and products into
and out of" Respondent's premises, I find that they have
sufficient interests in common with the recap and service
employees to warrant their inclusion in a unit with these
employees. The Valley of Virginia Cooperative Milk
Products Association, 127 NLRB 785. See also Marks
Oxygen Company of Alabama, 147 NLRB 228.
George Holt was the only full-time store salesman
employed by Respondent on March 17.12 The tires he sells
at retail are mounted by the service department employees
and the tires he takes from retail customers are retreaded
by the recap employees. In connection with his selling
function, Holt takes tires out of the warehouse and puts
them in stock, and also occasionally changes tires in the
service department. In these circumstances, I do not
consider Holt's sales functions a bar to his inclusion in an
"all-employee" unit . Holt, however, is carried on
Respondent's payroll as its "store manager" and
President Bauman testified that he and Holt had "ultimate
authority" over the work in the service department and the
recap shop. Holt, like Bauman, assigns work to the service
department employees,13 and may direct those employees
to stop what they are doing and give priority to another
order. He arranges for overtime work and has authority to
grant time off and to make adjustments in working hours.
Thus, he gave White permission to come in an hour late
one morning and he permitted Cox on one occasion to
work through his lunchtime so that Cox could leave work
early. Unlike the hourly paid employees, Holt does not
clock in. His earnings of $150 a week plus commission on
sales make him Respondent's highest paid employee. I
find that Holt is a supervisor within the meaning of Section
2(11) of the Act and therefore ineligible for inclusion in the
unit of store and driver-salesmen, service department
employees, and recap shop employees which I find
appropriate for collective-bargaining purposes.
Courtaway is the working foreman of the recap shop and
like Holt is paid a weekly salary of $150.14 He schedules
production and working hours in the recap shop, assigns
work to the recap employees, determines whether
overtime work is necessary, and assigns overtime work.
He inspects and criticizes the work of the recap
employees. He also has authority to correct their
timecards. He does not clock in. He is responsible for
keeping up supplies of tread rubber and puts in orders to
Respondent's supplier to keep "the inventory at a certain
stage." If "an extra large amount" of a particular size of
rubber tread is needed, he so advises Bauman who puts in
the order. I find that Courtaway has authority to direct
responsibly the recap shop employees, and therefore that
he is a supervisor within the meaning of Section 2(11) of
11 Driver-salesman Virgil Reinhardt received a salary plus
expenses.
11 Driver-salesman Halbrook worked as a store salesman on
Saturday and, if not out on his route , also on Friday.
11 The General Counsel contends, and Respondent disputes,
that Bauman testified that Holt can "tell the service department
employees what to do " Whether or not Bauman so testified, Holt
testified that he tells the employees to put tires on a customer's
car and Elmer Massa credibly testified that Holt told him what to
do See fn. 1,supra.
11 President Bauman and Courtaway each worked 2 days a
week on a sales route during January to March 1966, until
Bauman hired another driver-salesman, Mathue L. Miller, who
reported for work on April 4, 1966 Courtaway was paid a
commission on his route sales
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act and ineligible for inclusion in the bargaining unit.'5
Oscar Baudandistle, an annuitant under the social
security program, works 3 or 4 hours a day in the recap
shop at an hourly rate of $1.25. As he works on the basis of
earning no more than the maximum permitted in
connection with his social security benefits, I find that he
lacks sufficient community of interest with the employees
in the unit to include him. Taunton Supply Corp., 137
NLRB 221.
James Bauman, a 16-year old high school student, does
miscellaneous jobs, such as stacking tires. He works 30 to
40 hours a week during the summer recess and 6 hours on
Saturdays during the school year. He is permitted to take
time off for school activities, such as student council
functions and basketball practice. At the time of the
hearing, he took time off on Saturdays to go bowling. As
the record shows that he enjoys special status as President
Bauman's son, I exclude him from the bargaining unit. See
Adam D. Goettl, d/b/a International Metal Products
Company, 107 NLRB 65, 67.
In view of the foregoing, I find that the bargaining unit
on March 17 included recap employees Lemuel Massa,
Clinton Massa, Middleton, and Moreland, service
department employees Elmer Massa, Cox, and White, and
driver-salesmen Buese, Halbrook, and Reinhardt. As 7 of
these 10 employees signed union cards on March 16 or 17,
I find that the Union represented a majority of
Respondent's employees in an appropriate bargaining unit
when Respondent committed unfair labor practices aimed
at destroying support of the Union.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. As the
record establishes that the Union had a clear majority in
an appropriate unit when Respondent committed unfair
labor practices aimed at destroying support of the Union, I
shall also recommend , so that Respondent shall not gain
any advantage from its violation of Section 8(a)(1) and (3) of
the Act, that Respondent bargain collectively with the
Union as the exclusive bargaining representative of its
employees.16
In view of the nature of the unfair labor practices
committed , the commission by Respondent of similar and
other unfair labor practices may be anticipated . I shall
therefore recommend that Respondent cease and desist
from infringing in any manner upon the rights guaranteed
in Section 7 of 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. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
15 During January to March 1966, Courtaway worked in the
recap shop 2 or more hours in the morning and left instructions
with Middleton , the senior employee, before going on his sales
route. Middleton issued the necessary work orders during
Courtaway's absence but did not assume Courtaway's other
functions . I find that Middleton is not a supervisor under the Act
and include him in the bargaining unit.
2. By discharging Leroy White, Respondent
discriminated to discourage membership in the Union,
thereby engaging in unfair labor practices proscribed by
Section 8(a)(3) and (1) of the Act.
3. Respondent's store and driver-salesmen, service
department employees, and recap shop employees,
excluding office clerical employees, guards, professional
employees, and supervisors as defined in the Act,
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times on and after March 17, 1966, the Union
has been the exclusive representative of the employees in
the aforesaid unit for the purpose of collective bargaining
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I hereby issue the following:
RECOMMENDED ORDER
Respondent Crystal Tire Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating coercively employees concerning
union membership, activities, and desires.
(b) Threatening employees with discharge because of
their organizational activities.
(c) Soliciting employees to withdraw their support of
the Union by offering wage increases, or by offering to sign
a contract with another labor organization and promoting a
meeting with that labor organization.
(d) Discouraging membership in Automotive, Petroleum
and Allied Industries Employees Union, Local 618,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization, by discharging employees or
in any other manner discriminating against them in regard
to hire or tenure of employment or any term or condition of
employment.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization , to form, join, or assist said Local 618, or any
other labor organization , to bargain collectively through
representatives of their own choosing, or to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
2. Take the following affirmative action:
(a) Offer Leroy White immediate and full reinstatement
to his former or substantially equivalent position , without
prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay he may have
suffered by payment to him of a sum of money equal to
that which he would normally have earned from the date of
his discharge to the date of the offer of reinstatement, less
'ON L.R.B. v. Delight Bakery, Inc., 353 F.2d 344 (C.A. 6);
Ptaseckt Aircraft Corporation v. N L.R.B., 280 F 2d 575 (C. A. 3),
cert . denied 364 U .S. 933; Editorial "El Imparcial" Inc. v
N.L.R.B., 278 F . 2d 184 (C.A. 1); N.L.R.B. v. Joe Caldarera, d/b/a
Falstaff Distributing Company, 209 F .2d 265 (C.A. 8); D. H.
Holmes Company v. N L R.B., 179 F.2d 876 (C.A. 5); Cf. N.L.R.B.
v. Flomatic Corp., 347 F.2d 74 (C.A. 2).
CRYSTAL TIRE CO.
his net earnings during said period (Crossett Lumber
Company, 8 NLRB 440), said backpay to be computed on a
quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289, together with
interest thereon at the rate of 6 percent per annum, Isis
Plumbing & Heating Co., 138 NLRB 716.
(b) Notify the said Leroy White if presently serving in
the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Bargain collectively, upon request, with Local 618
concerning rates of pay, wages, hours of employment, or
other conditions of employment of the employees in the
appropriate unit herein found.
(e) Post at its place of business in Crystal City,
Missouri, copies of the attached notice marked
"Appendix."" Copies of said notice, to be furnished by
the Regional Director for Region 14, after being duly
signed by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 14, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."'
" In the event that this Recommended Order is 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 Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
1' In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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 interrogate coercively our employees
569
concerning their union membership, activities, or
desires.
WE WILL NOT threaten employees with discharge
because of their organizational activities.
WE WILL NOT solicit employees to withdraw their
support of the Union by offers of wage increases or
offers to deal with another labor organization.
WE WILL NOT discourage membership in
Automotive, Petroleum and Allied Industries
Employees Union, Local 618, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, by
discharging employees or in any other manner
discriminating against them in regard to hire or tenure
of employment or any term or condition of
employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
right to self-organization , to form, join, or assist said
Local 618, or any other labor organization , to bargain
collectively through representatives of their own
choosing or to engage in other concerted activities for
the purpose of collective bargaining or other mutual
aid or protection or to refrain from any or all such
activities.
WE WILL offer to Leroy White immediate and full
reinstatement to his former or substantially
equivalent position without prejudice to his seniority
or other rights and privileges and make him whole for
any loss of pay he may have suffered as a result of our
discrimination against him in the manner provided in
the Trial Examiner's Decision.
WE WILL bargain collectively, upon request, with
Local 618 as the exclusive representative of our
employees in the following appropriate unit,
concerning rates of pay, wages, hours of employment,
and other conditions of employment.
Store and driver-salesmen, service department
employees, and recap shop employees, excluding
office clerical employees, guards, professional
employees, and supervisors as defined in the Act.
CRYSTAL TIRE COMPANY
(Employer)
Dated By
(Representative) (Title)
Note: We will notify Leroy White if presently serving in
the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive 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, 1040 Boatmen's
Bank Building, 314 North Broadway, St. Louis, Missouri
63102, Telephone 622-4167.