Finnical Tire Co.Download PDFNational Labor Relations Board - Board DecisionsMay 9, 1968171 N.L.R.B. 242 (N.L.R.B. 1968) Copy Citation 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robert G . Purcell and Robert M . Purcell, a Partner- ship, d/b/a Finnical Tire Company and Construc- tion and General Laborers Local 718, Laborers' International Union of North America , AFL-CIO. Case 14-CA-4393 May 9, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN WE WILL reimburse James Williams for the wages lost as result of the unlawful reduction in his overtime. ' The Trial Examiner found that Respondent violated Section 8(a)(3) and (1) of the Act by reducing overtime work for employee James Wil- liams, but he did not provide a reimbursement remedy because General Counsel had not asked for it . General Counsel now asks that a backpay remedy be given . We agree that such a remedy is appropriate and will add a reimbursement provision to the Order recommended by the Trial Ex- aminer . The backpay due Williams shall be determined in the same manner as provided for in one section of the Trial Examiner 's Decision entitled "The Remedy" with respect to Sparks On January 29, 1968, Trial Examiner Phil Saun- ders issued his Decision in the above -entitled proceeding , finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner 's Deci- sion . Thereafter, only the General Counsel filed ex- ceptions to the Trial Examiner 's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed. The Board has considered the Trial Examiner 's Decision , the exceptions , and the entire record in the case, and hereby adopts the findings , conclusions , and recommendations of the Trial Examiner with the following modification.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the Respondent , Robert G . Purcell and Robert M . Purcell , a partnership, d/b/a Finnical Tire Company , De Soto, Missouri, their agents, suc- cessors , and assigns, shall take the action set forth in the Trial Examiner 's Recommended Order, as modified herein. 1. Insert the following as paragraph 2(b) of the Order and renumber the remaining paragraphs ac- cordingly. "(b) Reimburse James Williams for the wages lost as a result of the unlawful reduction in his over- time after May 1, 1967." 2. Add the following as the last indented para- graph in the notice: TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PHIL SAUNDERS, Trial Examiner: The unfair labor practice charge on which the complaint of August 23, 1967, is based was filed by Construction and General Laborers' Local 718, Laborers' Interna- tional Union of North America, AFL-CIO, herein referred to as the Union, on July 21, 1967, against Robert G. Purcell and Robert M. Purcell, a partner- ship, d/b/a Finnical Tire Company, hereinafter referred to as the Respondent or the Company. The issues litigated were whether or not the Company violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. The Company denied the unfair labor practice allegations. A hear- ing was held before me and all parties were represented and were given full opportunity to ex- amine and cross-examine witnesses , to introduce evidence, and to argue orally. The General Counsel and the Company filed briefs. Upon the entire record and from my observation and the demeanor of the witnesses, I make the fol- lowing: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Robert G. Purcell and Robert M. Purcell are copartners doing business under the trade name and style of Finnical Tire Company. At all times material herein , Respondent has maintained its principal office and place of business at 300 North Main Street in the city of DeSoto, Missouri, and is there engaged in the manufacture, sale, and dis- tribution of new and recapped automotive tires, and related products. Said place of business at DeSoto, Missouri , is the only facility involved in this proceeding . Durin$ the year ending December 31, 1966, which period is representative of its operations during all times material herein , Respon- dent , in the course and conduct of its business operations , caused to be manufactured , sold, and distributed at its DeSoto , Missouri , place of busi- ness products valued in excess of $75,000, of which products valued in excess of $50,000 were 171 NLRB No. 41 FINNICAL TIRE COMPANY furnished to enterprises , each of which annually sells and ships from its Missouri place of business directly to points in other States goods and materi- als of an aggregate value exceeding $50,000. I find that the Respondent is now , and has been at all times material herein , an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleges that since on or about April 1, 1967-all dates are 1967 unless specifically stated otherwise-the Respondent 's agents or su- pervisors warned employees of the futility in select- ing the Union , threatened the wife of an employee that her husband would lose his job if the Union became the collective -bargaining representative, threatened employees with new and more onerous working conditions , interrogated an employee as to his union sympathies and threatened same em- ployee with loss of overtime , promised benefits in the event an employee rejected the Union, and threatened that the Company would close or move the plant and employees would lose their jobs if the Union was successful in its attempts to become the collective-bargaining representative. The complaint also alleges that in early May the Respondent discontinued its practice of paying half the cost for clean uniforms, rescheduled the daily work and reduced employee 's usual overtime , altered its practice of permitting unscheduled coffeebreaks and restricted employees to two daily scheduled coffeebreaks, and, on or about May 4, the Com- pany discriminatorily discharged Steven Sparks. Respondent 's employees were the subject of an organizing campaign which resulted in a Board election on May 1. The Union won the election and the Company then filed objections to the election which were overruled. The ti s did not ap- peal the Regional Director's ruling on the objec- tions, and the Union was certified as the collective- bargaining representative on July 27. A threshold question in this case is whether or not John Lowry is a supervisor . The Respondent contends that Lowry possesses none of the statuto- ry indicia of a supervisor as set forth in Section ' The Respondent 's operations consist of two locations-one is a tire sales location at which sales and certain services are rendered for customers including putting tires on automobiles and doing front end work on automobiles . At the other nearby location Respondent retreads tires in its recap shop . These tires range in size from ordinary passenger size up to large tires used by off-the -road equipment Respondent acquired equip- ment to handle these very large tires sometime about the last of 1966 It is admitted that Lowry has the title of service manager Counting the sales, 243 2(11) of the Act.' Employee Charles Williams testified that three people tell him what work to do, and that John Lowry was one of them. Williams stated that Lowry also tells him when to take a break, when to take his lunch, when he is to work overtime, and in August he asked Lowry for some time off and Lowry granted this request. Williams also testified that, in October 1966, the Respon- dent's general manager, Robert Purcell, hereinafter referred to as Purcell, informed him and employee John Bradley that he had hired Lowry to oversee the back shop, and if they had any problems to take them to Lowry-' Charles Williams further related that an employee by the name of Jim Thompson returned late to his job in the service department one noon , and that on this occasion Lowry told Thompson "you might as well pick up your check Friday." Williams testified that Thompson never worked for the Company after this incident. Wil- liams referred in his testimony to another incident in May, wherein an employee by the name of Al Dulaney did not show up for work. Lowry then had Williams perform Dulaney's work until he arrived, and then later the same day Lowry informed Wil- liams that he had fired him. Williams admitted that Lowry did the same type of manual labor in the ser- vice department as he did. John Bradley testified that Lowry is the Respondent's service manager, that Lowry told him he was being transferred from the sales or service department to the recap shop, that while he was working in the service end of the store Lowry would tell him to work overtime and what tires to change, and that, in November 1966, he talked to Lowry about a raise in pay, that Lowry then told Bradley `he'd get me a raise," and that he did receive a pay increase. Bradley also testified that, in October or November 1966, Purcell in- formed him and Charles Williams that he had hired Lowry "to take care of the back" and that what- ever Lowry said "went. "3 From the credited evidence in this record it ap- pears to me that Lowry is a supervisor, and I so find. As pointed out, Lowry frequently told em- ployees work to do, he told them when to take a break, he determined when the lunch hour would be changed, and he informed employees in the service department when to work overtime. On occasions he has also permitted employees to take time off from work and, although Purcell may have known that an employee was going to take off and the reason for it, Lowry determined the specific time the employee should leave. As aforestated, Purcell called the service department employees to his of- service, and recap departments , the Company has altogether about 15 em- ployees. 2 At this time Purcell also told these employees that there would only be two daily coffeebreaks-one in the morning and one in the afternoon ' Purcell stated in his testimony that Lowry is paid by the hour, that he performs manual labor , that he gets the same vacations as other employees, that he has no authority to hire, lay off, suspend , fire, or promote em- ployees, but that Lowry has the most experience or seniority in the service department and his title is that of service manager. 353-177 0 - 72 - 17 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fice and told them that he had hired Lowry to over- see the shop and what Lowry said "went," and further told them if they had problems they should take them to Lowry. Lowry notified Jim Thompson and Dulaney they were discharged, and on one oc- casion Bradley received a wage increase after ask- ing Lowry about a raise in pay. Purcell admitted that Lowry presented prospective employees to him and told employees in the service department what tires to change on cars and when to stop working on one job and start on another, and Purcell also admitted Lowry reported to him on the manner in which some employees performed their jobs and that during working hours Lowry would determine which employee would make service calls for cars stranded on the road. The above all indicate and show that Lowry's work was considerably more than routine-is not of mere clerical nature-and in numerous aspects required the use of independent judgment, as aforestated. Lowry did not appear as a witness in this proceeding. James Williams testified that, around the middle of April, Purcell called a group of employees together and told them he understood some of the employees had signed cards to bring in the Union.4 Purcell then inquired as to why the employees felt they needed a union, told them he could not see how a union would help or benefit them, and further stated that a union was not going to tell him who to hire or discharge.5 Employee Charles Williams testified that, during the latter'part of April, Supervisor Lowry told them the Union was going to "hurt" the employees because they were not going to have the same privileges, and employees were going to be kept a "lot busier" even if it "was just taking tires out of the rack and putting them back." During the latter part of April, Purcell also asked James Williams why the employees felt they needed a union, that Williams was a good worker and deserved a raise but with a union coming in he could not do anything about it, that he was not going to let the Union tell him who he could hire or fire, and that "if he had to move it out of there [the plant] he would." John Bradley testified that, about a week before the May 1 election, Supervisor Lowry told him and Charles Williams that if the Union came in there would be no more coffeebreaks and that employees would be kept busy even if it was just pulling tires out of the racks and putting them back. This record also shows that, around April 20, Lowry went to Bradley's home. John Bradley was not there but ' Although in his conversations Purcell referred to the Union as a "third party" there is no doubt from the context that he was referring to the Union s Purcell admitted having two such conversations with employees before the election, but stated he told them that having signed cards did not bind their vote, that if they decided on the Union there would be dues to pay, and that "maybe" they would have to walk a picket line Purcell admitted he told the employees at the first meeting in April that they could not get anything with the Union that they could not have without the Union and he Lowry spoke to his wife, told her that he was there to preserve her husband's job, and stated that his visit was about the Union. Lowry also acknowledged that the Company had pinpointed Steven Sparks as the instigator of the union activity when he told Mrs. Bradley, "All this wouldn't have come up if it wasn't for the ring leader, Hawkshaw. "6 The foregoing instances and statements at- tributed to the Respondent are not instances of ob- jective inquiry as to the propriety of recognizing a labor organization, and neither do they amount to the exercise oe speech under Section 8(c) of the Act. Rather they include the following: Attempts to inquire into sympathies and desires by asking the employees, in groups and individually, why they felt they needed the Union; threats of loss of privileges, threatening Bradley's job, and further threatening employees with unnecessary or more onerous work; an admitted statement by Purcell that employees could not get anything with a union that they could not get without a union was and is an attempt to show the futility in selecting the Union; Purcell in- forming James Williams that he had a raise coming but could not give him one because of the Union is an implied promise of benefits in event the em- ployees rejected or refrained from supporting the Union; and the statement by Purcell to James Wil- liams that if need be he would move the plant is a clear threat that the Company could retaliate as a result of employees' support for the Union. The above constitute violations of 8(a)(1) and I so find. This is especially true where the above statements attributed to the Company were made to employees during the insecure period shortly prior to the elec- tion on May 1. This record shows that prior to the election the Company paid one-half the cost of cleaning uniforms for some of the employees. Charles Wil- liams testified that after May 1 he was informed he would have to pay the entire cleaning cost for uniforms.' John Bradley also corroborated the above in his testimony. Purcell testified that the Respondent's practice of paying one-half the cost of cleaning uniforms ceased the first week in May, and this resulted due to the fact that the costs of such services had "jumped" considerably. Purcell also stated that 3 weeks later he reinstated the prac- tice of paying one-half the cost for the employees who met the public or customers in the sales and service department-but this does not include em- ployees in the recap shop. Coupled with the afore- mentioned statements showing strong antiunion further admits that James Williams discussed a need for high pay 6 Hawkshaw is a nickname for alleged discriminatee Steven Sparks given him by fellow employees because he drives a truck with the name Hawkshaw on the door ' In June, Williams was asked by Purcell if he would go back to the old system whereby the Company paid half of the cost Purcell informed Wil- liams that employees who had contact with customers should have laundry service for their uniforms FINNICAL TIRE COMPANY sentiments and animus , this change of working con- ditions in having the employees pay all the cost in cleaning their uniforms was clearly retaliation by the Company against its employees for choosing the Union as their bargaining representative, and I so find.8 The General Counsel also alleges that, on or about May 2, the Respondent altered its prior prac- tice of permitting unscheduled coffeebreaks by its employees and restricted them to two scheduled coffeebreaks daily. Charles Williams testified that the past practice of the Company was to permit em- Kloyees to have their coffeebreaks whenever they ad slack time , but that, on the day of the election, May 1, Supervisor Lowry announced that there would be only one coffeebreak in the morning and one in the afternoon. Charles Williams further revealed that, in December 1966, he had been in- formed by Purcell that there would only be two cof- feebreaks a day, but within a few weeks later the employees in the service department would have their coffee whenever Lowry told them they could do so and this would usually be three times a day and sometimes more . Purcell testified that, in early 1967, he decided the employees would have their coffeebreaks twice a day as he had noticed that Charles Williams was drinking coffee while talking to a customer . Purcell admitted that prior to this time employees were drinking coffee whenever they wanted to. The Company maintains and argues that the policy that service department employees would take but two coffeebreaks a day was established well before any form of union activity. I do not agree and find to the contrary. It appears clear to me that, even though the Company notified service department employees in late 1966 or early 1967 that they would only have two coffeebreaks a day, this policy was soon thereafter disregarded and employees then reverted to their old custom of hav- ing coffee when time permitted or at Lowry's request. In any event, coffee drinking by employees in the months immediately prior to the election was reestablished on the basis of usually three times a day and sometimes more . On the day of the elec- tion , Supervisor Lowry-who had permitted the deviation of the earlier policy announced by Pur- cell-all of a sudden informed Williams that thereafter the old policy of only two coffeebreaks a day would be enforced. This change of conditions by the Company, timed as it was on May 1, further shows the Respondent' s union animus and demon- strates additional retaliations against employees for their support of the Union.9 The complaint further alleges that, on or about May 1, the Company rescheduled the daily working hours and substantially reduced employees' usual 6 The fact that Respondent restored uniforms to some employees (not to all) is not a sufficient remedy to cure the effects of its unlawful discrimina- tion. ' The Respondent's intent to discriminate by changing coffeebreak rules was disclosed by Lowry's earlier threat to employees that if the Union came 245 overtime. In support of this allegation the General Counsel introduced evidence through James Wil- liams to the effect that on May 1-after the elec- tion was over with-Purcell informed Williams that there was going to be a new work schedule and there would be a change in working hours. On this occasion Purcell told Williams he would be working 8-1/2 hours a day or not over 54 hours per week, and that he would take a 1-hour lunchbreak. Wil- liams stated that prior thereto he had no set hours, had a half hour lunch period, and had worked the amount of time it took him to get out the produc- tion.10 Williams also testified that the regular work- week was 48 hours but before the election he would work from 48 to 67 hours a week and stated that, after May 1, he worked just 8-1/2 hours a day for about 3 months but now works about 10 hours a day. Purcell testified that after the election on May 1, he set work schedules to cut down on overtime for employees in the recap shop and for the most part it effected James Williams. Purcell stated that Wil- liams' overtime had "gotten pretty high" and he thought it was necessary to bring it back in line, and explained that Williams put in 65 to 75-1/2 hours in I week by working on Sundays and in the evenings. Purcell further testified that Williams worked a good deal of overtime starting the middle of April due to the fact that alleged discriminatee Sparks was not available for work in this period." In its brief the Company also relies on Respon- dent's Exhibit 9, and from it argues that, in Janu- ary, February, and March 1967, James Williams averaged less than 54 hours of work per week, that, after Sparks abandoned the Company and the recap shop on or about April 12, Williams then averaged approximately 62 hours per week, and that after May 1, when Bradley was transferred to the recap shop, Williams was told not to work over 54 hours a week. The Respondent further argues as follows: "Because overtime was keyed to produc- tion it is apparent that there was no need for more overtime. And because Bradley replaced Sparks there was inherently less cause for Williams to work the exorbitant overtime hours required when the shop was shorthanded. There can be no question but that the Company was entitled to replace an ab- sent employee. There can be no doubt that it is very expensive to pay overtime for a substantial number of hours. And there can be no doubt that Williams could not work efficiently when working such long days and weeks. Moreover, it is apparent that Williams' usual overtime was at best 54 hours a week and he was not prohibited from so working when production warranted. Williams himself acknowledged that there were times when produc- tion did not justify his working. Finally, Respon in they would lose pnvileges , including coffeebreaks. 10 James Williams was an employee in the recap shop " This record shows that each employee in the recap shop recorded his own hours of work on an honor system arrangement 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent's Exhibit No. 9 clearly shows that currently (August and September) there is a need for Wil- liams to work overtime and he is again working overtime." It appears to me the Company has advanced no convincing reason as to why Williams' overtime was reduced, and again the timing of this change, cou- pled with the Respondent's union animus, leads to the inescapable conclusion that this change was a further act of retaliation against employees for sup- porting the Union. While there is some evidence in this record that Williams increased his overtime after the middle of April, due to the.fact that Sparks was unavailable for work in the recap shop-this, however, in no way supports the Respondent's argument. In my evaluation of these circumstances the natural result happened-when Sparks was unavailable for work, the recap shop was at least one employee short up until May. With one employee gone during this period, someone else had to pick up the extra workloads and it is obvious that Williams was the employee who did so. There is also evidence in the record that, even during the first week in January, Williams worked 83-1/2 hours, and that over a considerable period of time no employee in the shop worked as many overtime hours as Williams did.12 Finally, the Respondent's other contentions as to Williams are also diluted by the fact that in recent months Wil- liams has been permitted to work overtime hours- but still not as many hours as before May 1. If there was no available work-or if Williams was not ac- tually doing the work-it seems highly unlikely that the Company would now permit such an arrange- ment. Steven Sparks worked for Respondent for a little over a year, and during this time received four or five wage increases so that he went from $1.40 to $1.80 an hour. At the times in question Sparks was working in the recap shop. This record reveals that, on or about April 12, Sparks and James Williams were placing a tire on the "arbitrator" when Sparks slipped and fell to the concrete floor. He im- mediately told Williams that he was hurt. Neverthe- less, Sparks worked the next 2 days but was unable to lift anything because of his injury and on April 15, a Saturday, he went to Dr. Pierce, an osteopath, who gave him a shot and some tabletes. Right after seeing Dr. Pierce, Sparks went to the shop where he saw Purcell and told him that he could not work because his back hurt. On the following Monday, Sparks was still unable to work and had his wife call in to so notify the Company. On or about this time James Williams noticed that Sparks was not work- ing so he asked Purcell about it and Purcell replied that Sparks had called in and said he was having trouble with his back. On Wednesday, Sparks at- tempted to work but was unable to lift anything, 'Z In the week of January 14, Williams worked 65 hours, in the week of January 21, he worked 63-1/2 hours, and, during the last week in January, and the following day went to Dr. Rehm, a chiropractor, who gave him a treatment and some pills. After seeing Dr. Rehm, Sparks went to the Company and talked to Purcell and said that he was unable to work. Sparks made a second visit to Dr. Rehm on or about April 21 (Friday) and then again went to the company office. Mrs. Purcell, wife of the owner who also works in the office, told Sparks he should not be going to a chiropractor and directed him to see the company doctor-Dr. Don- nell. Sparks attempted to see Dr. Donnell but was unable to do so. On or about April 22, Sparks went to see Dr. Fallet-a medical doctor-and received a heat treatment, a shot, and some tablets. On or about April 25, Sparks again went to Dr. Fallet and was told to get X-rays made. Three X-rays were then taken during the last weeks in April by a doc- tor in Crystal City, Missouri. Prior to getting the X- rays made, Sparks had informed Purcell of this procedure. On May 4, Sparks made his third visit to Dr. Fallet and on this visit he was told that the X- rays were negative, and Sparks also received a release to return to work. He then took this release to the Company and Purcell told him that he did not need anyone then but that he would let him know in a couple of days. The following day Sparks telephoned Purcell and in the course of the conver- sation asked Purcell if he was fired. Purcell replied, "Yes, I guess you're fired ... come up here, I have something for you." When Sparks arrived at Pur- cell's office, he was given a letter addressed to him, but with a list of three questions on it which he was directed to take to Dr. Fallet for an answer.13 When Sparks returned with the doctor's answers, Purcell merely stated he would have to look the answer over, and also told Sparks that he did not think there was anything wrong with him. Purcell testified that, on April 15, he asked Sparks what was wrong with him and Sparks replied that his kidneys were bothering him. Purcell stated that, on April 21, he again had a conversation with Sparks and on this occasion told him to go see Dr. Donnell, the company insurance doctor, and, when Sparks called back reporting that Dr. Donnell was not in his office, Purcell then told him to see Dr. Fallet. Purcell related that, on April 22, he talked to Dr. Fallet and was informed that the doctor could not find anything wrong with Sparks, but was asked if the Company had any light work for Sparks. Purcell replied that he did have such work. On April 24, Sparks informed Purcell that his back hurt. Purcell further testified that, on May 4, Sparks gave him a return to duty slip from Dr. Fal- let, and, on May 5, he gave Sparks a letter- Respondent's Exhibit 4-and asked that it be an- swered by Dr. Fallet and then returned. Purcell stated that later the same day Sparks handed him the reply from Dr. Fallet-Respondent's Exhibit he worked 72 hours During the month of May, Williams worked only 50- 1/2 hours in each of the 4 weeks " Resp Exh 4 FINNICAL TIRE COMPANY 247 10-and after reading same informed Sparks that he had been replaced. Sparks then asked Purcell if he was fired, and Purcell stated that he made no reply to this question nor did he comment on Dr. Fallet's letter. During his testimony Purcell was also asked why he did not take Sparks back. Purcell answered by stating he did not feel that Sparks was seriously hurt or "hurt at all." Purcell went on to state, "He could have worked, especially light duty work if he wanted to show up for it." Purcell further testified that Sparks' absence from his job neces- sitated overtime hours, that unit costs rose, that he had to transfer an employee to the recap shop who was unfamiliar with the work, and further stated that Sparks was unreliable and undependable which forced an inconvenience on the Company and ef- fected their production schedules. In its brief the Respondent presents this summation: "Sparks, hav- ing failed to show that any real injury ever existed was not returned to work because the Company was of the opinion that Sparks could have worked if he so desired. There can be no doubt whatsoever that Sparks' malingering caused the Company real harm. His failure to work left the recap shop one employee shorthanded, thereby creating an excess of overtime which, in turn, contributed greatly to the April rise in unit labor costs." From the evidence in this record it is clear that the Company had prior knowledge of Sparks' ac- tivity for the Union. It was Sparks who initially con- tacted the Union, and then solicited and obtained the authorization cards from other employees. Charles Williams testified that he first heard about the Union from Sparks. On or about April 1, John Bradley was contacted by Sparks and asked to sign a union authorization card, and, on April 20, Su- pervisor Lowry told Mrs. John Bradley that the Union would not have attempted organizational ef- forts if it had not been for "Hawkshaw"-the nickname for Sparks, as aforestated. It is also well- established Board and court precedent that such' knowledge may be inferred from the record as a whole. Wiese Plow Welding Co., Inc., 123 NLRB 616; Radio Officers' Union of the Commercial Teleg- raphers Union, AFL v. N.L.R.B., 347 U.S. 17; and Pyne Moulding Corporation, 110 NLRB 1700. In rejecting the Respondent's defense that Sparks' malingering was one of the reasons for their refusal to take him back-I rely on the following. First of all, there is no history or background of any such practices or habits, and the Company was un- able to support any specific instance of unexcused illness, absence, or dilatory conduct on the part of Sparks prior to his injury.14 Secondly, there is evidence in this record that Purcell told James Wil- liams that Sparks was one of his best employees and he was going to give him a pay raise. It is further pointed out that if Sparks had any serious difficulty in working or reporting for work it is highly unlike- ly that he would have received four to five pay raises within his comparatively short period of em- ployment of just over a year. In no respects will this record support the contentions that Sparks was un- reliable or caused the Company any inconvenience. At one stage in his testimony, Purcell stated he had no knowledge that anything was physically wrong with Sparks. However, on April 21, Purcell admitted he asked Sparks how he felt, and he then obviously knew that Sparks was injured and that the injury could possibly involve a workman's com- pensation claim, as Purcell told Sparks to see the Company's insurance doctor (Dr. Donnell). When Dr. Donnell could not be located, Purcell then told Sparks to see Dr. Fallet. Clearly, the Respondent's contention to the effect that Sparks failed to show any real injury is without merit, and subsequent events in conversations and exchange of letters between Purcell and Dr. Fallet, as aforestated, further show the Respondent's contention to be without foundation.15 The Company argues that Sparks could have worked if he had desired to do so. Purcell admitted that, on April 22, Dr. Fallet asked him if there was any light work Sparks could do, and in reply he stated that there was such work available. However, during the critical period involved herein, Purcell never informed Sparks that there was light work he could do and on cross-examination Purcell even ad- mitted this. Sparks and Purcell had at least two or three conversations after April 22, and the Com- pany therefore had ample opportunities to inform or notify Sparks of the availability of light work. The first and only indication to Sparks that the Company had such work was a statement contained in Purcell's letter of May 5. In the letter dated May 5, which Sparks was given to deliver to Dr. Fallet and have answered, the Company therein also accuses Sparks of taking "junk" tires from the Respondent's place of busi- ness after his injury.16 Sparks testified that there was an agreement with Purcell wherein he was per- mitted to remove junk tires, but after his injury in April he did not continue this practice. In the final analysis, the Company offered no evidence at the hearing in support of the statement in their letter that Sparks continued to load junk tires after he was injured. In accordance with all the above, it is found that the Respondent discharged Steven Sparks on May "The only evidence on the above concerned the unavailability of Sparks for work on Saturdays When he was initially employed , Sparks informed Purcell that he did not care to work on Saturdays and this appeared to be a satisfactory arrangement until Sparks became involved in the Union 's There is also evidence showing that , as early as April 15, Sparks in- formed Purcell that he could not work because of his back trouble . Purcell even admits that on this date he asked Sparks what was wrong with him. On April 28, Sparks also contacted Purcell in regards to filing a compensation claim and Purcell told him to get in touch with his insurance agent. " On this basis, and on the basis that Sparks was seen around town and in the shop , the Company maintains that Sparks was "apparently well" and able to work 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4, 1967, in violation of Section 8(a)(3) and (1) of the Act.17 In attempts to justify the Respondent's discharge of Sparks-their cutback in overtime hours, stopping the costs for cleaning uniforms, and state- ments made to employees-the Company relies on Respondent's Exhibit 8 and the testimony of Pur- cell to show that the monthly unit labor costs were higher during the first 5 months of 1967 compared with the same 5-month period in 1966. Purcell stated he was aware of these increased unit labor costs when he refused to take back Sparks and when he spoke to employees prior to the election. From this record as a whole, it appears extremely doubtful to me that these costs played any direct part in the Respondent's specific conduct here under consideration. The main reasons advanced by Purcell for the discharge of Sparks have been completely discredited, and I can give no material credence whatsoever that higher labor costs in 1967 played any significant part in the discharge. Likewise, the total and overwhelming evidence in this record also compels a similar conclusion to all the other 8(a)(3) issues and findings in this case. There is nothing in the Act which prevents an em- ployer making a proper explanation of unit costs based on records kept in the regular course of his business, but under the Act such statements lose the sanctuary of free speech when placed and cou- pled in context constituting interference and coer- cion. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Employer set forth in section III, above, occurring in connection with Respondent Employer's operations described in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent Employer en- gaged in unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Having found that Respondent unlawfully discharged Steven Sparks on May 4, 1967, 1 shall recommend that Respondent be ordered to rein- state him to his former equivalent position of em- ployment, without prejudice to his seniority and other rights and privileges, and to make him whole for any loss of earnings suffered as a result of Respondent's unlawful conduct and to make him whole for any financial loss suffered as a result of the Respondent's improper recall or reinstatement as a new employee. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.18 It will also be recommended that the Respondent preserve and make available to the Board, upon request, payroll and other records to facilitate the computation of the backpay due. It will be further recommended, in view of the nature of the unfair labor practices the Respondent has engaged in, that it cease and desist from infring- ing in any manner upon the rights guaranteed em- ployees by 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. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By discriminating in regard to the hire or tenure of employment of Steven Sparks, thereby discouraging membership in the above union, Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By discriminating in regard to the changing of working conditions, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaran- teed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the conclusions of law, and upon the entire record in the case, it is recom- mended that Robert G. Purcell and Robert M. Pur- cell, a partnership, d/b/a Finnical Tire Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees regarding their union desires and sympathies. (b) Threatening employees with loss of " It is well established that words or conduct which would logically lead an employee to believe that he had been terminated are in themselves suffi- cient to constitute a discharge 18 The General Counsel does not ask for any monetary reimbursement to James Williams FINNICAL TIRE COMPANY 249 privileges, moving the plant, jobs with unnecessary or more onerous work, and with other con- sequences or warnings if they adhere to and sup- port the Union. (c) Promising employee benefits if they reject or refrain from union activity. (d) Changing working conditions for employees because of their support for the Union. (e) Discouraging membership in the Union, or in any other labor organization , by discharging, refus- ing to reinstate , or in any other manner discriminat- ing against employees in regard to their hire or tenure of employment or any term or condition of employment. (f) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of the right to self-organization, to form labor or&anizations, to join or assist the above-named union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer immediate and full reinstatement to his former or a substantially equivalent position to Steven Sparks, without any prejudice to his seniori- ty or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination in the manner set forth in the section of this Decision entitled "The Remedy." (b) Reinstate the practice of paying one-half the cost of cleaning uniforms for the same employees who received such benefits prior to May 1, 1967. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its plant in DeSoto, Missouri, copies of the attached notice marked "Appendix."19 Co- pies of said notice, on forms provided by the Re- gional Director for Region 14, after being duly signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said 1B 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 Ap- peals Enforcing an Order " shall be substituted for the words " a Decision and Order " notices are not altered, defaced, or covered by any other material. (e) 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.20 20 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 Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Construction and General Laborers Local 718, Laborers' International Union of North Amer- ica, AFL-CIO, or in any other labor organiza- tion of our employees, by discharging or refus- ing to reinstate any of our employees because of their concerted or union activities, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT fire you, make you quit, change or take away your overtime and privileges, or punish you or treat you dif- ferently in any way because you join a union or favor a union. WE WILL NOT ask you anything about a union or why you may want a union. WE WILL NOT tell you that it will not benefit you to select a union to represent you. WE WILL NOT offer or promise you benefits or wage increases to discourage you from join- ing`or assisting a union. WE WILL NOT threaten to close or move our business because you join a union or favor a union. WE WILL furnish uniforms to you in the same manner that they were furnished prior to May 1, 1967. WE WILL offer Steven Sparks immediate and full reinstatement with backpay. All our employees are free to become or remain, or to refrain from becoming or remaining , members of the above-named Union or any other labor or- ganization. Dated By ROBERT G . PURCELL AND ROBERT M. PURCELL, A PARTNERSHIP, D/B/A FINNICAL TIRE COMPANY (Employer) (Representative ) (Title) 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Note : We will notify the above -named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Ser- vice Act and the Universal Military Training and Service Act of 1948 , as amended , after discharge from the Armed Forces. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered , defaced , or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 1040 Boatmen's Bank Building, 314 North Broadway , St. Louis , Missouri 63102, Telephone 314-622-4154. Copy with citationCopy as parenthetical citation