Finmore Corp.

National Labor Relations Board - Board Decisions

May 16, 1961

131 N.L.R.B. 557 (N.L.R.B. 1961)

FINMORE CORP., ETC. 557
2. The Board's current standard for asserting jurisdiction over a
nonretail enterprise within its statutory jurisdiction is a minimum of
$50,000 outflow (out-of-State sales) or inflow (out-of-State purchases)
either direct or indirect. (Siemons Mailing Service, 122 NLRB 81 at
85; American Advertising Distributors, 129 NLRB 640; Reliable
Mailing Service Company, 113 NLRB 1263.) The petition does not
establish that the Employer's operations satisfy the Board's direct in-
flow or outflow standards for asserting jurisdiction.
3. Nor does the petition establish that the Employer meets the in-
direct outflow standard for assertion of jurisdiction. Under the Sie-
mons case supra, "indirect outflow refers to sales of goods or services
to users meeting any of the Board's jurisdictional standards." None
of the retail store customers for whom the Employer furnished serv-
ices meet the jurisdictional standard of a gross volume of business of
at least $500,000 for retail enterprises. (Carolina Supplies and Ce-
ment C0.1 122 NLRB 88.) As it is not established that the retail stores
satisfy the Board's jurisdictional standards, the over $325,136 worth
of services furnished them by the Employer do not constitute indirect
outflow under the Siemons case.
Accordingly, the Board has determined and the parties are advised,
pursuant to Section 102.110 of the Board's Rules and Regulations and
to Section 101.43 of the Board's Statements of Procedure, that on the
facts submitted herein, the Board would not assert jurisdiction be-
cause the Employer's operations do not satisfy any of the Board's
standards for asserting jurisdiction.
MEMBER BROWN took no part in the consideration of the above
'Declaratory Order.
Finmore Corp ., Falmore Cab Corp ., Ebony Cab Co., Inc., Eron
Cab Corp., Nif Cab Corp ., and their agents, James Finn,
Owen Finn and James Fee and Local 826, Taxicab Drivers
and Terminal Employees , International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America.
Case No. 93-CA-7321. May 16, 1961
DECISION AND ORDER
On February 3, 1961, Trial Examiner John P. von Rohr issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions to
131 NLRB No. 84.
558 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
A e Intermediate 'Report and a supporting brief 'and the Respondent
filed a brief.'
Pursuant to the provisions of Section 3(b) of. the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom, and
Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
Although the case is not free from doubt, we shall dismiss the
complaint as we do not believe that the General Counsel established
by a preponderance of the evidence that the Respondent discharged
Louis Wile because of his protected union activities.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding was heard at New York, New York, on September 27, 1960,
pursuant to a complaint of the General Counsel against Finmore Corp., Falmore
Cab Corp., Ebony Cab Co., Inc., Eron Cab Corp., Nif Cab Corp., and their agents,
James Finn, Owen Finn and James Fee. The issue litigated was whether the
Respondents discharged an employee for his union or concerted activities on behalf
of Local 826, Taxicab Drivers and Terminal Employees, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, within the mean-
ing of Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended.
Oral argument was heard and briefs submitted by the General Counsel and the
Respondents have been considered.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondents Finmore Corp., Falmore Cab Corp., Ebony Cab Co., Inc.. Eron
Cab Corp., and Nif Cab Corp., are New York corporations with their principal
offices and places of business located in New York, New York, where they are en-
gaged in operating taxicabs and performing related services. During the year 1959
each of the said Respondents performed a gross volume of business in excess of
$500,000. In Jat Transportation Corp., et al., 128 NLRB 780, the Board found
that it would effectuate the policies of the Act to assert jurisdiction over each of
the Respondent Employers herein. I find that the operations of the Respondents
affect commerce within the meaning of the Act.'
Il. THE LABOR ORGANIZATION INVOLVED
Local 826, Taxicab Drivers and Terminal Employees, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
1 Although ' the answer denied the jurisdictional allegations of the complaint , counsel for
the Respondents stated at the hearing that he no longer contested the jurisdiction of the
Board. The Board decision cited above was decided subsequent to the complaint and
answer herein.
FINMORE CORP., ETC. 559
M. THE UNFAIR LABOR PRACTICES
A. The alleged discriminatory discharge of Louis Wile
The sole issue herein is whether Louis Wile was discriminatorily discharged be-
cause of his activities on behalf of the Union. Wile was employed as -a taxicab
driver for Respondent Finmore Corp. from 1951 until his discharge on October 15,
1959. He was hired and discharged by James Finn, an officer of the Fimnore
Service Corp.2
It is undisputed that from January 1956, and continuing until the time of his
discharge, Wile played a leading role in the efforts of the Union to organize the taxi-
cab drivers of numerous independent taxicab employers in the Greater New York
City area. According to the unrefuted testimony of Wile and Abraham Vainstein,3
Wile obtained union authorization signatures from approximately 1,400 to 1,500
taxicab drivers of various employers during this period. In addition to the fore-
going, Wile was recognized by the Union as a shop committeeman, a staff man on its
editorial staff, and a volunteer organizer. There is no question of company knowl-
edge on part of the Respondents, for James Finn credibly testified that he knew
Wile was active in the Union and that he was getting cards signed throughout this
period.
Before turning to the discharge incident, consideration will be given to certain
background evidence offered by the General Counsel purportedly to show the ex-
istence of an unlawful motive for Wile's discharge, viz, that the Respondents, par-
ticularly James Finn, harbored animosity toward Wile because he was such an active
union organizer.4 The sole event relied upon by the General Counsel to establish
such motivation involved the 1-day picketing of the Iota garage 5 which occurred in
February 1956, some 3V years prior to Wile's discharge. Abraham Vainstein, a
former official and organizer of the Union, testified that on this occasion the Iota
garage was picketed by approximately 20 employees. It is undisputed that Louis
Wile was one of the pickets. However, according to Vainstein (who said he was in
charge of the picketing) the other cabdrivers who picketed on this occasion were
employees of the Iota garage. Vainstein testified further that James Finn and his
brother, Owen Finn, appeared at the picket line at this time and that Owen Finn
told the picketing employees they "were fired" and that they "could not come back
to work at the garage anymore." On cross-examination Vainstein testified that it
was James Finn rather than Owen Finn who made the statement to the effect that
the employees were fired. In any event, Vainstein said that before the day was
over he reached an agreement with the Finns and "other employers in the garage"
that there would be no discrimination. In fact, Vainstein conceded that the picket-
ing ceased before the end of the day that all of the employees returned to work the
following morning. Wile testified concerning this March 1956 picketing incident in
much the same manner as did Vainstein, except Wile testified that it was Owen Finn
who made the statement that all the picketing employees were fired. Wile said
that he did not recall whether or not James Finn was present at the time. Owen
Finn, who was called by the Respondent, denied that he ever told the picketing
employees they were fired. As he put it, there was no basis for him to make any
such remark because the pickets were not his employees. Upon consideration of all
the foregoing testimony, I am not convinced that either James or Owen Finn told
the pickets they were fired on the day in question. In view of Vainstein's own
testimony that the pickets, with the exception of Wile, were employees of other
employers, it would seem highly unlikely that either of the Finns would have any
basis or authority for telling these employees they were "fired." Moreover, and
as has been seen, there is some contradiction between the testimony of Vainstein
9 James Finn is president of Ebony Cab Co., Inc., and Nif Cab Corp. He is also presi-
dent of Finmore Service Corp., the latter being a holding corporation for Ebony Cab,
Nif Cab, and Finmore Cab Corp.
8 Vainstein was a trustee and organizer for Local 826 in 1957. He served as secretary-
treasurer for this organization from 1957 to July 15, 1960.
4It should be borne in mind that the acts and conduct in this regard, occurring as they
did long before the Section 10(b) cutoff period, were offered as background evidence only;
they are not alleged as unfair labor practices in this proceeding.
8 The Iota garage, pursuant to lease arrangements, operates as headquarters for a num-
ber of New York City taxicab companies, including the Respondents. In addition to pro-
viding its tenants with parking and storage space for taxicabs not in use, it also provides
office space and clerical help. James Finn testified that he was a member of Iota's board
of directors for about 1 year. The year in which he held this position does not appear in
the record.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Wile as to which of the Finns were present at the picket line and as to which
was alleged to have made the remark. While I have no doubt but that some inci-
dent of the kind described did happen, I am not satisfied that either of the Finns
participated in it to the extent testified to by Wile and Vainstein. In any event,
and assuming arguendo that one of the Finns did make the remark attributed to
them by these witnesses, I would have no hesitancy in finding that such conduct
does not establish, as the General Counsel contends, antiunion animus on the part
of the Respondents when it discharged Wile 3% years later. There being no
evidence to show that the Respondents engaged in any other antiunion conduct
between February 1956 and October 1959, I would regard any such incident as
isolated and therefore insufficient to establish that the employer was antiunion.
Further, and again assuming that Finn on the spur of the moment did make a state-
ment that the pickets were fired, it is clear that the statement was withdrawn several
hours later and that no discrimination resulted.
Wile also gave testimony to the effect that following his participation in the 1-day
Iota garage picketing in March 1956, his employer, Respondent Finmore Cab, made
certain detrimental changes in his working conditions. It is the General Counsel's
position that these alleged changes were deliberately instituted by the Respondents
because of Wile's participation in the picketing and that, as such , they are further
demonstrative of antiunion animus against Wile. I do not deem it necessary to
burden this report with a detailed account of Wile's testimony in this regard. Having
given careful consideration to all of the testimony pertaining to this matter, 1 find that
the evidence does not establish that the Respondents subjected Wile to any adverse
or unusual working conditions because of his picketing in 1956.6 Further, I credit
the testimony of James Finn to the effect that he never singled out Wile for any
manner of discriminatory treatment.
Now to the matter which resulted in Wile's discharge. In short, James Finn testi-
fied that he discharged Wile because it was reported to him that Wile had threatened
an employee with the loss of his job if he did not join the Union. The report was
made to him by one John Greenan, an official of the River Service Corporation, the
latter a taxicab company with headquarters at the Iota garage. The employee alleged
to have been threatened by Wile was one Charles Kesten, an employee of the River
Service Corporation. Greenan's testimony was corroborative of Finn's. Thus,
Greenan testified that Kesten had told him of being threatened by Wile and that he
passed this information on to Finn. Kesten, who impressed me as an honest witness
and whose testimony I credit, testified in some detail as to the circumstances under
which the threat was made. Kesten said that on the day in question Wile jumped
in front of him when he was in line waiting to get gas. Kesten testified that at this
juncture he said to Wile, "You, of all people, as a union man, shouldn't do that."
According to Kesten, "words came to words" and Wile then said, "When the union
gets in, I'll make it my business you don't get a book." Kesten testified that he first
reported this matter to Vainstein and that Vainstein told him not to worry about it.
He subsequently related the incident to Greenan, his employer?
Wile testified that on the day of his discharge James Finn simply told him that he
was being fired and that Finn refused to give any explanation as to the reason for
his discharge. Finn, on the other hand, testified that Wile asked why he was being
discharged and that, "I told him that I had heard he -threatened men in the garage
if they didn't join the Union, that when they got the Union that they would lose
their jobs." According to Finn, whose testimony concerning the discharge conver-
E For example , Wile testified that when he first came to work for the Company he was
told by James Finn that he would not be required to work on weekends Wile testified
that in 1958 (which was 2 years after the picketing incident) Finn ordered him to work
on Saturdays. Assuming this to be true, I see no basis whatsoever to draw any inference
that Wile's picketing in 1956 had any relation to the requirement that he work on Satur-
days in 1958. Finn credibly testified that Wile 's weekend privileges were no greater or no
less than those of the other drivers.
As another example, Wile testified that In April 1957 , he received a reprimand from
Finn for having returned to the garage an hour earlier than usual for the purpose of
having repairs made on the steering wheel of his cab. If there is any connection between
this incident and Wile's 1-day picketing, the Trial Examiner fails to see it. On the con-
trary , it appears plain that this was more in the nature of a gripe, typical of the kind so
frequently expressed by employees in everyday Industrial life.
7As.a matter of background to this incident , it is noted Wile conceded having asked
Kesten to sign a union authorization card "about a dozen times" but that in each instance
Kesten refused to do so. In this context, it is apparent that the import of Wile's threat
to Kesten could not be misunderstood by the latter.
FINMORE CORP., ETC. 561
sation is credited, Wile made no denial about having made any threat but merely
asked for an unemployment slip.
B. Conclusions re Wile's discharge
The law is well settled that an employer does not violate Section 8 (a) (3) of the
Act for discharging an employee who engages in unprotected activities. It is equally
well settled that threats of the nature in which Wile engaged are not only unprotected,
but indeed, if sanctioned by or made by an agent of a labor organization, in them-
selves constitute a violation of a different section of the Act. The applicable prin-
ciples are well stated by Trial Examiner Arthur Leff, whose report the Board adopted
in United Stone and Allied Products Workers of America, et al.,8 as follows:
Section 8(b) (1) (A) protects employees from restraint and coercion in the exer-
cise of their rights conferred by Section 7. Just as employees have a right pro-
tected by the Act to assist a union by supporting its position on a grievance
through testimony or otherwise, so, too, they have a similarly protected right
to refrain from assisting a union through nonsupport of, or even active oppo-
sition to, the Union's position . A union which threatens employees with damage
to their job tenure for failing thus to aid its cause engages in illegal restraint and
coercion within the meaning of Section 8 (b) (1) (A). Fox Midwest Amusement
Corporation, etc., 98 NLRB 699, 719; Textile Workers Union of America, CIO,
etc., 108 NLRB 743, 748, 733; International Association of Bridge, Structural
& Ornamental Iron Workers, etc., 112 NLRB 1059, 1060.
Of course, the Respondents here could not utilize the threat by Wile as a reason
for his discharge if the real motive for discharging him related to the protected activi-
ties in which he engaged . The latter is the contention of the General Counsel. How-
ever, I find that the General Counsel has not established such to be the case by a
preponderance of the evidence. As indicated heretofore, I have found by the credited
testimony of Charles Kesten that Kesten was in fact threatened by Wile. Upon the
evidence as a whole, I also find that Wile was discharged by James Finn for having
made the threat,9 not because of his union activities. In the latter connection the
General Counsel points to Wile's testimony to the effect that just prior to his dis-
charge he was concentrating his organizing activities among the employees of the
various employers located at the Iota garage. There is, however, no evidence to in-
dicate that the Respondent employers were aware of any such stepped-up activity
on Wile's behalf among these employees. One may, of course, speculate that the
Respondents desired to be rid of such an active union adherent as Wile. But suspicion
is not enough to establish a violation of the Act. Moreover, and as the Respond-
ents point out, Finn, who was aware of Wile's organizing activities for 3 years prior
to his discharge, permitted him to continue in these activities free from any inter-
ference or molestation during this entire period. It was not until Wile overstepped
the bounds of legitimate activity, as he did when he threatened Kesten, that the Re-
spondent Employer exercised his lawful right to terminate Wile's employment for
having engaged in such conduct.io
CONCLUSIONS OF LAW
1. The Respondents are engaged in and at all times material herein have been en-
gaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. Local 826, Taxicab Drivers and Terminal Employees, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
3. The Respondents have not violated Section 8(a)(3) and (1) of the Act as
alleged in the complaint.
[Recommendations omitted from publication.]
8 121 NLRB 914, 919.
9I cannot agree with the General Counsel's position that Finn did not have a good-faith
belief as to the conduct of Wile because he failed to make any investigation of what had
occurred in order to establish a basis upon which he might make a decision. Thus, Finn
credibly testified that he had known Greenan for about 12 years, that he believed in
Greenan's honesty and integrity, and that he relied upon Greenan's statement concerning
the Wile-Kesten Incident. Moreover, and as previously found, Wile did not deny threaten-
ing Kesten when he was informed by Finn that such conduct was the reason for his
discharge.
lU I regard It as immaterial that Wile's threat was directed to the employee of another
employer.
599198-62-vol. 131-37