Finnical Tire Co.

National Labor Relations Board - Board Decisions

May 9, 1968

171 N.L.R.B. 242 (N.L.R.B. 1968)

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.