Kimball Tire Co., Inc.

National Labor Relations Board - Board Decisions

Jan 29, 1979

240 N.L.R.B. 343 (N.L.R.B. 1979)

KIMBALL TIRE CO., INC. 343
Kimball Tire Co., Inc. and Teamsters and Warehouse-
men, Local 381, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Cases 31--CA-6479 and 31
RC3593
January 29, 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING ANI) MI:MBI:RS J.FNKINS
AND Mi:RPIHY
On August 31. 1977, Administrative Law Judge
James S. Jenson issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(bl of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The General Counsel excepts to the Administra-
tive Law Judge's failure to find that Respondent vio-
lated Section 8(a)(3) and (I) of the Act by perma-
nently laying off employees James Garcia, Eldon
Akin, and James Jones on September 29, 1976.2 The
Administrative Law Judge concluded that the alleged
discriminatees were laid off for economic reasons
and not because they engaged in union activity. We
find merit in the General Counsel's exceptions to the
findings concerning Garcia.
When the union organizing campaign began in late
July or early August 1976. the three alleged discrimi-
natees were employed at Respondent s San Luis
Obispo, California, facility. Garcia and Akin worked
as tire buffers in the retread shop located at the rear
of the building. Jones was employed in retail sales
and installation in the San Luis Obispo front shop,
where he was the most senior employee. Prior to los-
ing his driver's license for drunk driving in April,
Jones had performed all the service calls at San Luis
Obispo.
IThe (General Counsel hits excepted to certain credlbilit findings made
b) the Administrative Law Judge. is the Board's estabhlished policv not t
overrule an Administrativec Law Judge's resolutions with respect to credihili-
ty unless the clear preponderance of all of the relevant evidence consinces
us that the resolutions are incorrect Standard Dr, Wiuall Prouct, In . 91
NLRB 544 (19
5
0), enfd 188 2d 3h2 (Id ('ir 1951}. 'We have carefulls
examnined the record and find no hasi fr recslsrIg his flidings
' All dates are 1976 unless otherwise indicated.
240 NLRB No. 38
Garcia initiated the organizing movement in late
July or early August by distributing about 14 author-
ization cards to his fellow employees. While there is
no evidence as to how many employees signed the
cards, both Akin and Jones were among those who
did so. Retread Shop Manager Walter Akin, the son
of Eldon Akin and the foster brother of Garcia, was
present on several occasions when Garcia discussed
the Union with other employees and expressed the
view that the Union would be "good" for them. After
the Union petitioned for an election in a unit of re-
tread shop employees at San Luis Obispo, a hearing
was held as to the appropriate unit on September 9.3
Thereafter, on September 29, Respondent informed
the three alleged discriminatees that they were being
laid off for economic reasons. Respondent subse-
quently transferred Dub Hendricks, manager of its
Grover City store, and Orville Teague. another Gro-
ver City employee, to perform tire buffing in the ret-
read shop at San Luis Obispo.
It is clear that Respondent knew of Garcia's role
as the leader in the organizing movement 3 weeks
before his layoff, due to his presence with the union
business agent at the representation hearing. Further,
Respondent's hostility toward the Union was made
verv clear to the employees. Walter Akin told Garcia
on at least three occasions that Respondent's owners
intended to close the shop, if necessary, to prevent
the employees' election of the Union as their bar-
gaining agent. In addition, Vice President Eaton's in-
terrogation of Walter Akin regarding the identity of
those employees supporting the Union establishes
Respondent's concern about which employees were
responsible for the organizing drive.
We reject Respondent's defense of economic ne-
cessity with respect to Garcia's layoff. It has failed to
justify the immediate transfer of Teague, who was
hired over 9 months after Garcia, from the Grover
City store to the retread shop at San Luis Obispo.
Thus, Garcia was laid off ahead of an employee with
less seniority, and at a time when there was clearly
work for him to do. While Respondent contends that
Teague is a more versatile employee than Garcia in
that he can perform multiple functions at all three
facilities, the record shows that, following the layoff
of Garcia, Teague spent about 20 to 25 hours per
week inspecting and buffing tires. Furthermore, Vice
President Eaton admitted that he never inquired
whether Garcia had the capacity to handle other as-
signments. 4
The Regional D)irector illtimately found appropriate an expanded unit
composed of all production, maintenance, and service emplosees at Re-
spondent's facilities in San . is Obhlspo. (rover (Ct. and Altascdero, (alh-
fornla.
4 While it is true, as our colleague points out. that league technlc alN
(Contnuerl
KIMBALL TIRE CO., INC.
,
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that Respondent's reasons
for the layoff of Garcia were pretextual. We con-
clude that the action taken by Respondent in this
regard was calculated to mask its true intention of
discouraging union activity and of dissipating union
support. We therefore conclude that Respondent vio-
lated Section 8(a)(3) and (1) of the Act by perma-
nently laying off Garcia because of his involvement
in union activities.
However, we disagree with our dissenting
colleague's contention that the layoffs of Eldon Akin
and Jones also violated Section 8(a)(3) of the Act.
The layoff of Garcia is clearly distinguishable from
those of the other alleged discriminatees in that Re-
spondent had direct knowledge of his union activi-
ties. We have noted that the dissent places heavy em-
phasis on Eldon Akin's "uncontradicted" testimony
that his son, who was stipulated to be a supervisor.
told him that one of Respondent's owners claimed in
August that the Company knew who had signed au-
thorization cards. The dissent also relies on testi-
mony by Akin that his son subsequently told him
that the three layoffs had resulted from the employ-
ees' signing union cards. The Administrative Law
Judge, however, did not make any credibility resolu-
tions with respect to the testimony of Akin on which
the dissent relies. For this reason, we believe that our
colleague's reliance on Akin's uncredited testimony
is inappropriate. Furthermore, in his testimony, Wal-
ter Akin did not mention any remarks that he may
have made to his father about the union campaign or
the layoffs. While Walter Akin did admit that Eaton
had questioned him as to the union activity at San
Luis Obispo, the Administrative Law Judge credited
his testimony, as corroborated by Eaton, that he de-
nied knowing who was involved.
replaced Eldon Akin as passenger tire buffer in the retread shop. we believe
that the functions of the passenger and truck tire buffers are so similar that
the jobs are interchangeable. In this vein, Garcia stated, "The truck tire
buffer does both jobs; he can buff small passenger cars all the way up to
graders." Eaton also testified that Teague usually works on the buffing
machine formerly operated by Giarcia. It is thus apparent that Respondent
could have retained G(arcia, a more senior employee than Eldon Akin as
either the passenger or truck tire buffer to work along with Hendricks in the
back shop. Instead, Respondent filled the vacancy created by the layoff of
Garcia by transferring Teague to San Luis Obispo.
' The Board has always been reluctant to reverse an Administrative aw
Judge's credibility resolutions, especially where such resolutions are based
on the demeanor of the witnesses. Standard Drv Wall Products, Inc.. .supra.
In. . Here, our dissenting colleague would overturn these findings, arguing
that the Administrative Law Judge erred in "ignoring relevant, uncontra-
dicted testimony." We have noted, contrary to the dissent, that the Admin-
istrative Law Judge specifically refers to Eldon Akin's testimony regarding
the conversation where his son allegedly told him that Respondent knew
who had signed the union application. Furthermore, inasmuch as the Ad-
ministrative Law Judge herein based his findings upon his "observation of
the witnesses and their demeanor," we conclude that it is implicit in his
general statement regarding credibility that he has discredited the testimony
of those witnesses whose testimony conflicts with the facts as described by
the witnesses he has credited. It is, therefore, clear that the Administrative
Law Judge, by crediting such testimony of Walter Akin and Eaton, inferen-
The dissent points out that, in any event, the real
issue as to the layoffs of Akin and Jones is whether
or not Respondent believed that they were involved
in the organizing campaign. It cites several cases in
support of this proposition.' In Collins & Aikman, su-
pra, the Administrative Law Judge, as adopted by the
Board, discredited the employer's denial of knowl-
edge of the alleged discriminatee's union activities by
pointing out that two supervisors were clearly aware
that he supported the union. The Administrative Law
Judge therein further noted that the alleged discrimi-
natee had solicited support for the union on the em-
ployer's premises. When the Board similarly found in
Thunderbird Motel, Inc., supra, that company knowl-
edge could be inferred from the surrounding circum-
stances, it relied on the small size of the employee
complement; evidence that the organizing campaign
took place openly on the employer's premises; and
evidence that the employer had a "good grapevine"
of information.
In our opinion, however, these cases address situa-
tions substantially different from the facts of this
case. It is true that information acquired by a super-
visor, with respect to the specific employees involved
in the union campaign, is ordinarily imputable to the
employer. This is a natural effect of the loyalty which
a supervisor, by virtue of his position, feels toward
his superiors. Nevertheless, the inference cannot be
drawn in the instant case, as Walter Akin did not
initiate the action and his credited testimony indi-
cates that he did not communicate his knowledge of
union activity to higher management. Furthermore,
there is no evidence that any other management offi-
cial was aware of the organizing campaign in the re-
tread shop, where the Union initially sought recogni-
tion.
We also do not believe that the Board's small-plant
doctrine can be accepted as a substitute in this case
for direct proof that Respondent knew which em-
ployees were engaged in union activity. While Re-
spondent employed only five employees in its retread
shop, the record discloses that Garcia distributed au-
thorization cards to fellow employees during lunch
hours and after work at either their or his own home.
Thus, it is clear that, unlike those cases cited by the
dissent, the organizing campaign here did not take
place on the Employer's premises. As the Board said
in Hadley Manufacturing Corporation, 108 NLRB
1641, 1650 (1954):
However, the mere fact that Respondent's plant
tially discredited any conflicting testimony offered by Eldon Akin.
('Collins & Aikman Corporation. 187 NI.RB 620 (1970): Thunderbird Mo-
tel, Inc., 180 NLRB 656 (1970): The Ridge Tool ('orpan., 102 Nl.RB 512
(1953).
(' . Sear, Roehuck and (o.. 172 NL.RB 2222. In 1 (1968).
KIMBALL TIRE CO., INC. 345
is of a small size, does not permit a finding that
Respondent had knowledge of union activities
of specific employees, absent supporting evi-
dence that the union activities were carried on in
such a manner, or at times that in the normal
course of events, Respondent must have noticed
them.
In view of the foregoing. we find that the evidence
does not establish that Respondent had any reason
to believe that Eldon Akin and Jones were involved
in union activities. Accordingly, we conclude that the
cases on which the dissent relies are distinguishable
from the instant case.
Our colleague further contends that the timing of
the layoffs supports a finding that Respondent's eco-
nomic defense was pretextual.8 In our view, the tim-
ing of the layoffs fails to support the General Coun-
sel's case. We note that the dissent presents statistics
which show that Respondent's gross sales between
January and September were approximately 28 per-
cent higher than in the corresponding months of the
previous year. This statistical analysis partially dis-
torts Respondent's financial situation, however, as
the opening of the Grover City store in January pro-
vided about 15 percent of the sales increase. It was
also stipulated at the hearing that Respondent's sales
of passenger and truck tires substantially declined
between July and October, as set forth below.9
stant during that year. Thus, we agree with the Ad-
ministrative Law Judge's finding that Respondent
was forced to reduce its employee complement at all
three stores when sales increases during the peak
summer months did not continue into the fall as ex-
pected. In reaching this conclusion, we also rely on
financial statements submitted by Respondent which
disclose that, although the ompany made a net
profit of about $26,000 during the first 8 months of
1976, declining sales commencing in September re-
sulted in a net loss of approximately $2,000 for the
ear. I()
We also disagree with the dissent's conclusion that
the selection process for the layoffs of these employ-
ees was discriminatory. Following the layoffs, as not-
ed, Respondent transferred Teague and Hendricks,
who had over 4 years of seniority, from its Grover
City store to replace Akin and Garcia in the retread
shop. While the dissent correctly points out that
Teague had no previous experience as a tire buffer.
the record is inconsistent on how much training is
necessary to perform the job adequately. Eaton testi-
fied that the job could be learned in 3 days, Akin
said training would take 30 to 60 days, and Garcia
claimed that 60 days would be necessary. Further-
more, we have noted that Teague also handles retail
sales at all three of Respondent's stores and occa-
sionally performs road service calls when necessary.
The dissent points out that Akin had done similar
work for Respondent in the past. but concedes that
he no longer could perform heavy lifting due to a
back injury. Although our colleague argues that
Teague's job responsibilities do not include such
work, the record discloses that heavy lifting is re-
quired to change a truck tire on a road service call.
It is also evident, with respect to Jones, that he
could not handle service calls, his primary function,
after the revocation of his driver's license in April. In
finding that Respondent's explanation for choosing
to lay off Jones is pretextual, the dissent relies on
evidence that, when Jones told the retail manager. on
April 5. that he had lost his license, the manager re-
° The dissent deems "inappropriate" our reliance upon evidence of i-
nancial losses occurring suhsequent t the laioffs on September 29 A finan-
cial statement submitted h Respondent for the month ending In August.
however. reveals that net operating profit during that month as minus
$27194. In our view. this figure. combined with declining sales. ndicates
the start of a negatise profit trend which ultimately continued he rcmainder
of the ear Furthermore. Respondent's cash flow situation wais extremels
critical at that time It had short-term liahilities of $285.14980. while cur-
rent lassets aggregated only $S112,49745. including $21096 in cash. Thus.
Respondent was not onl) beginning to lose mone) in the daild operation iof
Its business. hut it was also confronted with a considerable problem meeting
expenses in the immediate future. Since other efforts to decrease expenses.
such as increasing sales, reducing inventories. and raising prices. had al-
read filed. the onls recourse iatilhable to Respondent was to reduce its
paxrroll bh laing off the licced dliscriminatees. In fact a:s he Admnlnstra-
tlise la.w udge pointed out, the psroll fr Jnuar 1977 wals approxlm;tlel,
20) percent less than hat for Augusl 1976
Month
July
August
September
October
Passenger
Tire Sales
1,488
1,618
1,301
1,035
Truck
Tire Sales
562
453
351
308
While it is true that Respondent made no layoffs in
1975, exhibits offered into evidence at the hearing
reveal that its gross revenue remained relatively con-
We find that the significance placed hb the dissent on eidence hat
Respondent hired new employees at its San I s Obispo location In earls
1977, without recalling the alleged discriminatees. is misplaced. The record
shows that two of the hirees served as temporary replacements for their
respective brothers who had taken leases of ;ihsence While another Indis d-
ual was also employed about the same time to perform alignment work In
the hack shop. the eidence further discloses that none of the alleged dis-
criminatees had ever done such work for Respondent
Our colleague. in disputing this evidence. relies ton Walter Akin's pur-
ported testimony that a backlog of work existed in the retread shop at the
time of the lasoffs Our rea ding of the record discloses. however that It was
Eildon Akin who testified that his son old him this was so In ans event, the
record also reveals that both FRldon Akin and Garcia agreed that, while the
workload per enmployee may have increased due to prior lasoffs in August.
the amount if inciomilng work fr the hibak shop had decreased during the
last few weeks in September We therefore conclude that the vague esti-
mony regarding the amount of asailable work in the retread shop at the
time of the la offs does not refute the fact that there had been a substantial
decline in Respondent's business.
K I M BA L L T I R E C O ., I N C ~ ~ ~ ~~~~~~~~~~~.3
^ _ , . . _
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plied that there was plenty of work for him in the
front shop. At that time, however. Respondent was
anticipating substantial sales increases during the
summer months. Thus, when it became apparent that
the Company would suffer heavy financial losses
during the last 4 months of the year. Respondent
could not afford to retain an employee, such as
Jones, with a limited capacity to perform his joh.
In sum, we find that Akin and Jones were not laid
off because of their union activities. Accordingly. we
shall dismiss these allegations of the complaint.
The Representation Proceeding
The Petitioner objected to the results of the elec-
tion, asserting that Respondent unlawfully laid off
unit employees during the critical period. Based on
our conclusion that Garcia's layoff violated Section
8(a)(3), we find merit in the objection. Pure Chem
Corporation, 192 NLRB 681 (1971). Accordingly. we
shall set aside the election and direct that a second
election be held.
Tmll Rill)N
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(3) and (I) of the Act, we shall
order that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the pur-
poses of the Act. Such affirmative action shall in-
clude an order that Respondent offer James Garcia
immediate and full reinstatement to his former job
or, if that job is no longer available, to a substantially
equivalent position, without prejudice to seniority or
other rights, privileges, or working conditions. We
shall order that Respondent make Garcia whole for
any loss of pay or other benefits he may have suf-
fered as a result of the discrimination practiced
against him, with backpay computed in the manner
set forth in F. W. Woolworth Compan,, 90 NLRB
289 (1950), with interest to be computed in the man-
ner set forth in Florida Steel C'orporation. 231 NLRB
651 (1977)."
AMENDED CONCLL SION OF LAW
Substitute the following for paragraph 3 in the Ad-
ministrative Law Judge's Conclusions of Law:
"3. By permanently laying off employee James
Garcia in reprisal for his support of the Union, Re-
spondent has engaged in, and is engaging in, unfair
I See. generally. Il I'lumhing teatrng (,. 138 NlRB 716 (1962)
labor practices within the meaning of Section 8(a)(3)
and (I) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Kimball Tire Co., Inc.. San .uis Obispo. ('California,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging union activity by permanently
laying off employees in reprisal for their support of
or membership in the Union.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer James Garcia immediate and full rein-
statement to his former job or, if that job is no longer
available, to a substantially equivalent position, with-
out prejudice to his seniority or other rights, privi-
leges, or working conditions, and make him whole
for any loss of pay or benefits he may have suffered
as a result of the discrimination practiced against
him in the manner set forth in the section hereof
entitled "The Remedy."
(b) 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 analvze the amount of
backpay due under the terms of this Order.
(c) Post at its office in San Luis Obispo, Califor-
nia, copies of the attached notice marked "Appen-
dix." 2 Copies of said notice, on forms provided by
the Regional Director for Region 31, after being duly
signed by a representative of Respondent, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
If Is :l RtlER OR)LRI.)D that the election held on
October 29, 1976, in Case 31- R(' 3593 be, and it
11 II the esent that this Order is enforced h\ a ludginent of ai tUnted
States Court of Appeals, the ords in the notice reading "Posted hby Order
of the National l.abor Relations Board" shall read "Posted Pursuant to a
Judgament of the Ulnited St.ales (urlt of Appeals nforcing an Order of the
National I.ahor Relatlos Board."
KIMBALL TIRE CO., INC. 347
hereby is, set aside, and that Case 31 RC 3593 be,
and it hereby is, severed from Case 31-CA 6479 and
remanded to the Regional Director for Region 31 for
the purpose of conducting a new election.
[Direction of Second Election omitted from publi-
cation.j '"
MTIMB[ R JINKINs, dissenting in part:
I join my colleagues in finding that Respondent
violated Section 8(a)(3) and (I ) of the Act by perma-
nently laying off James Garcia in order to discourage
union activity and dissipate union support and be-
cause of his involvement in union activities. How-
ever, I am unable to agree with my colleagues' find-
ing that the permanent layoffs of Eldon Akin and
James Jones were not likewise discriminatorily moti-
vated.
I am puzzled by the majority's finding that Re-
spondent's economic defense was a pretext when ap-
plied to Garcia, but was valid with respect to Akin
and Jones. Their conclusion was the sole defense of-
fered to support simultaneous layoffs of three em-
ployees is a pretext as to one of the three, but valid as
to the others, is illogical. The only factor which dis-
tinguishes the layoff of Garcia from the others is that
Respondent obviously had actual notice of Garcia's
role as a leading organizer for the Union due to his
sitting with the union business agent at the represen-
tation hearing on September 9, 1976. The majority
seizes on this distinguishing fact to support its deci-
sion but ignores the uncontraducted testimony of El-
don Akin that his son. Walter Akin, who was stipu-
lated to be a supervisor, told him that one of
Respondent's owners claimed in August that the
Company knew who had signed union application
cards.'4 Furthermore, the majority errs in finding
that actual knowledge of an individual's union activi-
ty is a prerequisite to finding a violation of Section
8(a)(3). The General Counsel correctly notes that the
real issue is whether or not Respondent believed
Akin. Garcia, and Jones to be involved in union ac-
tivity and. based on that belief, took action against
them. See Collin.v & .4ikman ('ororation, 187 NI.RB
620, 625 (1970): 7lunterbird Moll, Inc.. 180 NL.RB
656 (1970); The Ridge Tool (ompanreR , 102 N IRB 512
i. ce/lsor footnote onmitted from pubhicallon.
I'The majoritN's rejection of Akin's uncontradicted lestnlo that his
son. Walter, told hint that the layoffs in issue resulted from the empli\ees'
signing authonrizatlon cards is puildhng In finding ms rehalnce In that testi-
mony "inappropriate." the majorit 5 cites he fact that the Adminlstr.lic
Las Judge did not expresskl credit or dilscredi thai testinons. In effect.
therefore. the majority discredits Akin's uncontradicted lesnllmn,1. een
though Walter Akin, who testified at the hearing, did not denN making the
statement. I preous cases we hase criticized and reersed Adminlstriatle
l.aw Judges for ignoring releant. unonitr.lahled testlmonN See. c . i
Ranch faurlAei. 23S NI RB 48 (1978): (;oAld Sl.ndrd £nierrrc.. Im. c t
./ 234 NlRB 18 (1978) Bra,., ka]. It, 227 NI.RB 973 (19
77
) Ihe
majorits coninitit the S.ilIre error.
(1953). A careful reading of the record compels me to
conclude that Respondent's layoff of all three em-
ployees was motivated by antiunion considerations.
Respondent's animus toward the Union was well
established and, as noted by the majority, was made
very clear to the employees. Garcia testified, without
contradiction, that, in August 1976. Walter Akin told
him that Respondent received a letter from the
Union claiming representation of the employees and,
in response, one of Respondent's owners, either
Bryan or Eaton, stated that he wanted "to close the
doors down" and "that if he couldn't run his own
Company; then no one could." In early September,
Walter Akin told Garcia that the owners "were mad"
and "would do everything in their power to stop the
Teamsters Union." Again, in late September. Walter
Akin told Garcia that Respondent's owners were
"pissed off." and would "do everything in their pow-
er to stop the Teamsters Union from coming into
Kimball Tire Company, even if they had to close
their doors." These statements, although not alleged
as independent violations of the Act, provide an in-
formative background for the events which followed.
Contemporaneous with or shortly after the layoffs
on September 29, 1976, Orville Teague was transfer-
red from Respondent's Grover City store to the re-
tread shop in San Luis Obispo where Akin and Jones
worked. Although Akin had more than 9 months'
seniority over Teague, Teague was assigned the job
of inspecting and buffing passenger tires, a function
formerly performed by Akin. 5 Respondent argues
that it wasjustified in transferring Teague because he
was a more versatile employee than Akin, since he
could perform multiple functions. That contention is
clearly fallacious. Teague had no previous experience
as a buffer, required approximately 60 days of train-
ing to perform adequately as a buffer, and spent ap-
proximately 20 to 25 hours per week buffing passen-
ger tires. Although Teague performed multiple
functions at all three stores when not buffing in San
Luis Obispo, it was uncontroverted that Akin had
performed similar work for Respondent in the past
and, although he could no longer perform heavy lift-
ing, no showing was made that Teague's other re-
sponsibilities included heavy lifting.
Respondent's explanation for laying off Jones, the
most senior employee in the retail shop, was that he
had lost his driver's license and therefore could not
go out on service calls. However, it was established
that Jones had lost his license on April 4, 1976., al-
'- In rejecting Respondent' econonlic defense with respect to (iarcla's
aI;off, the malorit\ relies in part n the asseirtin that league replaced
(iaria. though league hd Iles senormIt tow secr. the Administrative l.aw
Judge correctlk found that l'eague replaiced Akin Ah., as a paarsw nge'r-tire
buffer It , lren drin cks ho u.ls transferred to replace G(arcia as a trilA-
tire buffer
KIMBALL TIRE CO., INC.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
most 6 months prior to the layoff. Indeed, when on
April 5 Jones told the retail shop manager he had lost
his license, the manager replied that there was plenty
of work in the shop Jones could do, and then the
following day, after consulting with Respondent's
owners, he told Jones the loss of driving privileges
was no problem, and that another employee would
thereafter perform the service calls on a regular basis.
Finally, when Jones was told he was being laid off by
Bryan, one of Respondent's owners, the proffered
reason was that "things were slow." At no time did
Bryan or any other agent of Respondent indicate to
Jones that he was being laid off due to the revocation
of his driver's license. For the foregoing reasons, I
reject Respondent's explanations and find that Jones.
the most senior retail shop employee, and Eldon
Akin were laid off in violation of Section 8(a)(3) of
the Act.
My conclusions are buttressed by: (I) the state-
ment of Supervisor Walter Akin who told his father.
Eldon, that he thought the three layoffs resulted from
the employees' signing union cards: (2) the timing of
the layoffs, which occurred less than 3 weeks after
the representation hearing and less than I month
prior to the election: (3) Respondent's hiring of two
new employees in late 1976 or early 1977 without
offering reinstatement to the discriminatees herein:
and (4) the statement of Respondent's counsel at the
representation hearing to the effect that no layoffs
would occur at least until the election. Even more
importantly, the evidence shows that a backlog of
work existed on the date of the layoffs and for some
time thereafter. Although it was undisputed that the
rate of incoming work had slackened somewhat, the
record shows that, due to a previous layoff of three
temporary summer employees in August, the amount
of work per employee had not decreased, and may
have even increased.'6 Respondent's gross sales dur-
ing every month of 1976 material herein, except Feb-
ruary, were also substantially higher than for the cor-
16 For this reason. I do not regard the chart in the majorilt opinion show-
ing a reduction in tire sales between July and October as supportive of
Respondent's economic defense Moreover. Supervisor Walter Akin stated
that a backlog of work existed in the retread shop at the time of the layoffs.
M) colleagues' reliance on financial statements submitted by Respon-
dent, showing that, although it had a net profit of appriiximatel S260.(X) for
the first 8 months of 1976, declining sales commencing in September result-
ed in a net loss of S2,0(X) for the year. is. in my opinion, misplaced. he
layoffs in issue occurred on September 29. 1976 'lo rely upon inancial
reverses which occurred thereafter to support those lasoffs is inappropriate.
particularly in view of the fact that Respondent hired wo new employees in
late 1976 or early 1977.
I)on .ucIas Inirnluitlol 1/. d h1 l' San Joc Baiarilan o;2lit,,r, 229
NIRB 127 (1977); L.elron Pr,dul.. 1, i 227 NILRB 576 (1976) Bro,,h,ll
('rlmpan. 210 NlRB 288 (1974).
responding months of 1976. According to
Respondent's Exhibit 3, those sales were as follows:
Gross Sales
Honth 1975 1976
January $52,900 $ 74,480
February 79,275 76,693
March 65,552 90,645
April 70,860 120,964
May 85,638 93,553
June 86,279 125,541
July 83,115 108,850
August 80,187 94,554
September 80.639 89,341
$684,445 $874,621
These sales figures show that Respondent's 1976
gross sales were approximately 28 percent higher
than in the previous year, when no layoffs were
made.'
It is also worth noting that the representation peti-
tion sought a unit restricted to employees at the Em-
ployer's San Luis Obispo location, and all three al-
leged discriminatees were employed at that location.
It was not until the date of the representation hear-
ing, September 9, 1976, that the unit was expanded to
encompass Respondent's other places of business.
Thus, although the unit was expanded prior to the
subject layoffs, the union activity originated at the
San Luis Obispo location and. I think not coinciden-
tally. all layoffs were restricted to that location.
In sum. I conclude that Respondent's proffered
economic defense with respect to the layoff of em-
ployees Eldon Akins, James Garcia, and James Jones
is pretextual. Even assuming, arguendo, that Respon-
dent had some economic justification, I must con-
clude that the layoffs were motivated at least in part
to discourage union activity and dissipate union sup-
port and thus violated Section 8(a)(3) of the Act.'8
APPENDIX
Noil(t- To EMpil.oY IFS
PosIrt- BY ORI)IER O()I 111
NAIIONAL LABOR REIAI()NS BOARD
An Agency of the United States Government
WE: wIl. NOT lay off employees because of their
support of or membership in Teamsters and
Warehousemen, Local 381, International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor
organization.
Wt Wll.tI. N(O in any other manner interfere
KIMBALL TIRE CO., INC. 349
with, restrain. or coerce employees in the exer-
cise of the rights guaranteed them under Section
7 of the Act.
Wt wii. offer James Garcia immediate and
full reinstatement to his former job or, if that job
is no longer available, to a substantially equiva-
lent position, without prejudice to his seniority
or other rights, privileges, or working conditions,
and wE wll t make him whole for any loss of pay
or other benefits he may have suffered as a re-
sult of our discrimination against him, with in-
terest.
KIMBAI I IRF C. IN(
DECISION
SIAIlMtLNI t I I (ASI
JAMES S JENSON. Administrative Law Judge: These cases
were heard by me in Santa Barbara, California, on April
14, 1977. The complaint, which was consolidated with a
hearing on objections and challenges, was issued on No-
vember 15. 1976. pursuant to a charge filed on September
30, 1976.' The complaint alleges that the Respondent,
Kimball Tire Co., Inc., terminated Eldon W. Akin. James
R. Garcia, and James L. Jones because they joined or as-
sisted, Teamsters and Warehousemen, Local 381, Interna-
tional Brotherhood of Teamsters, Chauffeurs. Warehouse-
men and Helpers of America, herein called the Union, or
engaged in other protected activities, in violation of Sec-
tion 8(a)(3) of the National Labor Relations Act, as
amended, herein called the Act. The objection to the elec-
tion, which was filed on November 3, alleges that the Re-
spondent unlawfully dissipated the unit by laying off and
promoting employees for the sole purpose of disenfranchis-
ing them. The tally of ballots issued following the election
on October 29 discloses that of approximately 15 eligible
voters, 18 cast ballots, 3 of which were cast for the Union,
8 against the Union. and 7 were challenged. The chal-
lenged ballots were sufficient in number to affect the re-
sults of the election. In the Supplemental Decision on Ob-
jections and Challenges the Regional Director overruled
the challenge to the ballot of Gene Grey. thereby leaving
six remaining challenges. During the course of the hearing
in this matter, the parties stipulated that two other chal-
lenged voters, Greg Bryan, the son of the president of the
Respondent, and Dale Overland, a temporary replacement.
were not eligible and that the challenges to their ballots
should be sustained. Thus, there now remain four chal-
lenged ballots, which are not sufficient in number to affect
the results of the election, nor will the counting of the bal-
lot of Gene Grey. All parties were given full opportunity to
appear, to introduce evidence, to examine and cross-exam-
ine witnesses, to argue orally, and to file briefs. Briefs were
filed by the Respondent and the General Counsel and have
been carefully considered.
All date, hereafter are in 1976 unles ,,theri e slaled
Upon the entire record in the case and from m, observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OI F A([
I JRISDI(' IOS
Kimball Tire Co., Inc., a California corporation with an
office and principal place of business located in San Luis
Obispo. California, is engaged in the manufacture and sale
of tires. Respondent annually purchases and receives
goods or services valued in excess of $50,000 directly from
suppliers located outside the State of California and annu-
ally purchases and receives goods or services valued in ex-
cess of $50,000 from sellers or suppliers located within the
State of California which receive such goods in substantial-
ly the same form directly from outside the State of Califor-
nia. Respondent further annually derives gross revenues in
excess of $500,000. On these facts it is found that the Re-
spondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR OR(GANIZAI ION INOI '* El)
Teamsters and Warehousemen, Local 381. International
Brotherhood of Teamsters, Chauffeurs. Warehousemen
and Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
II1 I tH AlI (iIl) I N AIR I.ABOR PRA(I ( I S
A. The Setting
Respondent is engaged in the sale of new and retread
tires from three locations in California: San Luis Obispo,
Atascadero, and Grover City, the last sometimes referred
to as Arroyo Grande.
The San Luis Obispo location includes a retread shop
where used tires are buffed and molded into the retread
tires that are marketed along with new tires at the three
sales facilities. The three alleged discriminatees involved
herein were employed at the San Luis Obispo facility,
which is physically and organizationally divided into two
sections, the front or retail shop and the back or retread
shop. At the time of the alleged discriminatory layoffs
herein, Eldon W. Akin and James A. Garcia were em-
ployed as passenger-tire and truck-tire buffers, respective-
ly, in the back or retread shop, and James I.. Jones did
sales and installation in the front or retail shop. Walter L.
Akin, the son of Eldon Akin and the half brother of James
Garcia, was the retread shop manager and a supervisor
within the meaning of the Act. Stanford Bryan and Tom
Eaton are the Respondent's president and vice president,
respectively. At the time of the permanent layoffs involved
herein, the Respondent employed two in the Grover City
store, five in the Atascadero store, five in the San Luis
Obispo retread shop, four in its retail shop. one in its align-
ment shop, and a service clerical employee. The employee
complement following the layoffs will be discussed hereaf-
ter. During the summer months of 1976. however, the Re-
KIMBALL TIRE CO.. INC
.. ... .. .
350 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
spondent had employed three additional men in the re-
tread shop, one having been laid off on August 16 and the
other two on August 27.
B. Advent of the Union
In late July or early August, Garcia contacted the Union
and obtained authorization cards which he distributed to
fellow employees during the lunch hours and after work at
either their homes or his own home. While the record does
not disclose how many employees signed the cards, both
Eldon Akin and James Jones testified that they did. On
one occasion Walter Akin was present at Garcia's house
during the lunch hour when Garcia gave a card to David
King, another retread shop employee. Garcia testified that
he had also talked in favor of the Union to employees on
several occasions in Walter Akin's presence.2
On August 12, the petition for election in Case 31-R('
3593 was filed, wherein the Union sought an election
among the employees of the Respondent's San Luis Obispo
retread shop. The hearing was held on the petition on Sep-
tember 9. Garcia, who sat with the Union's business agent
during the "R" case hearing, testified that during the hear-
ing the Union objected to any delay in the election for fear
of future layoffs and that he heard Eaton tell Respondent's
counsel that he could see no further layoffs, which remark
was reiterated by Respondent's counsel. The pertinent por-
tion of the transcript of the "R" case was admitted in evi-
dence in this proceeding as General Counsel's Exhibit 2(b).
and reads:
MR ROZA: No, but I would like to say this on the
record:
We would like to have this election as soon as possi-
ble, because through the employer's own admittance
on the record, this is a kind of a seasonal thing as far
as workload is concerned, and I think that was ven-
fied on the record by the people who have been laid
off up to this point. And should this thing continue to
any length there is a possibility that more people will
be laid off.
MR. lONt: I will say that you will have an election
sometime at the end of October or first week in No-
vember, and I don't think there will be any substantial
change in employment over that period, if that will set
your fears at ease. This is predicated on what I know
to be the Board procedure in this matter.
We are not going to file exceptions in Washington
unless we come up with something that totally blows
our mind.
Long, Respondent's counsel at both the "R" case hearing
and the instant proceeding, denied that at an), time during
the hearing he discussed future layoffs with Eaton. I con-
clude that the entire discussion regarding "layoffs" and
"change in employment" is contained in the exhibit quoted
2 G;arcia apparently lived near the San; lu s O()spo plant, and It ;as
customar for some of the employees, including Walter Akin. his half hroth-
er, to have lunch at his house. It appears hat (;a;rcia and Wa;lter Akin werc
frequent visitors in each other's homes. both before and after the la;off,.
herein.
immediately above.
Following the "R" case hearing, the Regional Director
for Region 31 issued it )ecision and Direction of Election
finding appropriate a unit composed of all full-time and
part-time production, maintenance, and service employees.
and service clerical employees employed at the Respon-
dent's San Luis Obispo. Atascadero. and Grover City
stores, excluding all other employees, professional employ-
ees, guards, and supervisors as defined in the Act. 'The elec-
tion was conducted on October 29, resulting in a count of
three ballots for the Union, eight against. and seven, a de-
terminative number, challenged. Three of the challenged
voters, Eldon Akin, Garcia. and Jones, had been laid off
on September 29 and are the discriminatees alleged herein.
Of the remaining four challenged voters, the Regional Di-
rector orverruled the challenge to the ballot of Gene Grey,
and the parties stipulated during the instant hearing that
Dale Overland was a temporary employee and therefore
not an eligible voter and that Greg Bryan was not an eligi-
ble voter because he is the son of the Respondent's presi-
dent. As the remaining challenges now number four, a
number insufficient to affect the results of the election, it is
not necessary to determine the eligibility of W.D. Hen-
dricks, who was challenged by the Union.
Following the election, however, the Union filed the fol-
lowing objection, which was consolidated for hearing with
the unfair labor practice charges herein:
The employer unlawfully dissipated the unit by laying
off and promoting employees for the sole purpose of
disenfranchising them.
Eldon Akin. Garcia, and Jones, the subjects of the layoff
alleged in the objection, are the alleged discriminatees in
the unfair labor practice case. Hence, the issue in both the
"R" and "C" cases is whether those three men were unlaw-
fully laid off because of their interest in the Union and/or
for the purpose ot disenfranchising them.
C. The Alleged Discriminatees
1. Eldon W. Akin
Eldon W. Akin, herein called Eldon, was first employed
by the Respondent in June 1956 and quit in about 1961. At
first he worked in the front shop and later in both the front
and back shops. In 1962, he was rehired and worked, ap-
parently in the back shop, until he was "laid off due to
economic reasons" in 1972. Eldon testified that he was the
manager of the back shop for 8 or 9 years, the position now
held by his son Walter. During at least a portion of that
period, the Respondent recognized the Union as the collec-
tive-bargaining representative of its employees. In 1970 or
1971, while he was the manager of the retread shop. Eldon
filed a decertification petition with the Board. The record
shows that the petition was ultimately dismissed because of
his management position. Between 1972 and 1975. he was
in business for himself. On October 20, 1975. he was re-
hired and worked until March 16, 1976. when he was again
laid off. He testified without contradiction that Eaton told
him the layoff was temporary. On June 2, he was either
recalled or rehired, and worked in the back shop as the
KIMBALL TIRE CO., INC. 351
passenger-tire buffer until September 30. 3 Eldon testified
that he has a dislocated disc and has neither worked in the
front shop nor driven the service truck during the 1970's.
The Respondent attributes his failure to perform service
work, which entails lifting, to the condition of his back. 4
In early July, Eldon questioned Eaton about an incen-
tive-pay program that "I was supposed to be on." Eaton
told him, "that the other guys in the [reicap shop had
turned it down and he was coming up with a new program
involving three of us which was l.uis Silva, Walter Akin
and myself; that would be the three of us involved in the
new incentive."
Eldon's union activity appears to have been limited to
the signing of an authorization card on an undisclosed date
in August. He testified that sometime in August he and his
son Walter were discussing "the amount of business and
the layoffs" of the summer employees,5 and that Walter
told him that Eaton and Bryan "had asked him if he knew
who was involved in the union activity and if he [Walterl
was: and also, they told him it had to be someone that
knew the situation pretty well to have kept it quiet so long
. . [and that] either Tom [Eaton] or Stan [Bryan], I don't
remember which, had told him that they knew who had
signed the union application at one of the conferences they
had with them (sic)."
Eldon testified that on Monday. September 27, his son,
"Walter told me that he had had a conference with the two
owners the previous Friday and they were going to have to
cut down on the employees and it was going to eliminate
me and one out of the front shop and one out of the Atas-
cadero store and they had considered laying James Garcia
off, but there was a slight disagreement of letting that
many go out of the recap shop at the same time, so they
decided to keep him on temporary." Later that day Walter
told him that Dub Hendricks, manager of the Grover City
store, was going to be transferred to the San Luis Obispo
store to do tire buffing, and that the two owners were going
to "step in and help the management of the stores."" At
the end of the workday on September 29, Bryan told Eldon
that business was slowing down and that he was going to
be laid off, but as soon as business picked up he would be
called back to work. He worked, however, through Septem-
ber 30.
Eldon testified that in early October, at his home, he and
Walter were discussing the layoff and that Walter "thought
the same as the rest of us did. it was due to the application
being signed by the employees why the three of us were
laid off." In apparently another conversation Walter stated
IWhile [-Idon characteried his return t work as a recall. the Respondent
contends he was rehied on June 2. and counts his senlorit, from that date
It makes no difference. hesver, insofar las departmental senioritt is con-
cerned. whether he was recalled or rehired n June 2 since his earlier rehire
date. Ocobher 20, 1975. still leaves holh (i;arcl and him as the emplosees
with the least seniority in the hack shop.
4 F1don s presently employed bh another tire hop. tie testified that while
he does sales and service work at that store. he does not do service work in
the field r on the road. It appears from he record that field and road
service work is more phsicall demandlng thian service rk at the sre
As Allre was laid off on August I., and Azevedo and Moriton were laid
oftn .t August 27. I onclude that this coinersaltiO)n occurred at the end of
Augusi
Accosrding to (arcia. Walter told hintm uhstaniialla the sa;me thing
that "he really couldn't see where the production-the
business had dropped off that much because they were
backlogging as they went along . . . that the production
was down being that Dub Hendricks was brought up to do
the buffing and he wasn't fully experienced and they had
to retrain him himself-that Walt had to retrain him be-
cause there was a lot that he didn't know to where if he had
experienced buffers, it wouldn't have been backlogging."
In November, according to Eldon. "Walter told me that
they were behind on their tire production down there and
him and Dub Hendncks they went up and talked to Stan
Bryan, trying to get him to hire me back to work so that we
could get production back up. but Stan told them 'no.'"
Eldon acknowledged that incoming business had slowed
down at the time of his layoff, but contends that there was
a backlog of tire casings to be capped.
2. James R. Garcia
Garcia was employed in the recap shop as the truck-tire
buffer from May 19, 1975, until his layoff on September 29.
In early June, at a meeting which included Dub Hendricks,
Garcia, Walter Akin, and the two owners, in which "we
were talking with the bosses about a raise," Garcia asked
for an increase of 50 cents. After talking it over and the
owners stating they felt they needed more production, it
was apparently agreed the men would receive a 25-cent
raise, with another 25 cents in the future. Sometime during
the summer of 1976. apparently in July. Garcia contacted
the Union and thereafter distributed authorization cards to
employees during the lunch hour and after work. On one
occasion in either late July or early August, Walter Akin
and David King were having lunch at Garcia's home when
Garcia gave King an authorization card. On other occa-
sions Walter was present when Garcia spoke favorably
about the Union to other employees. Most of these conver-
sations occurred at Garcia's home during the lunch hour.
As noted before, Walter Akin and Garcia are half brothers
and "good friends." Garcia testified that he wasn't con-
cerned that Walter would report his union activities to Ea-
ton and Bryan because Walter was his brother and he
didn't look upon him as management. He testified further
that Walter expressed "his personal feelings... that . . .
it would be good for us to be in the Union." 7 In view of
their family and personal relationship. the fact Garcia
wasn't concerned that his half brother would report his
union activities to the owners, and Walter's denial that he
did so. I decline to impute Walter's knowledge of his half
brother's involvement and activities on behalf of the Union
to Respondent.
Garcia testified that following the filing of the "R" case
petition on August 12, Walter Akin told him that the own-
ers had received a letter from the Union and that they were
upset and one of them had said "that he wanted to close
the doors down; that if he couldn't run his own company,
then no one could." In early September, Walter told him
that the owners "were mad and they would do everything
When questioned hb FEaton and Brsan regarding his knsledge oif union
acti tlies. alter testified that he denied uch kno ledge [here is nothing
in Ihe record to een ugget that Waller 1llt nt estirlf credlihs in all
respect,
KIMBALL TIRE CO. INC.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in their power to stop the Teamsters from becoming a part
of their company." About a week before the layoff, Garcia
was visiting Walter Akin at the latter's home in Shell
Beach, and Walter told him that "the bosses were upset.
They were pissed off. They were going to do everything in
their power to stop the Teamsters union from coming in to
Kimball Tire Co., even if they had to close their doors." 8
Garcia attended the "R" case hearing on September 9
and sat with Roza, the Union's business agent. Eaton testi-
fied that this was the first knowledge that Respondent had
that Garcia was involved with the Union.
On Monday, September 27. Walter Akin told Garcia
that his father was going to be laid off on Friday, that they
were considering also laying off Garcia, and that the own-
ers were talking about bringing Dub Hendricks to San Luis
Obispo to do the passenger-tire buffing then being done by
Walter's father and to "help out with the pre-cure build-
ing." 9
Garcia testified that he had operated the truck molds for
the Respondent during his first 3 or 4 months of employ-
ment and that, while he had done so for a former em-
ployer, he had never changed, balanced, or sold tires for
the Respondent, nor had he been requested to do so. '° He
also acknowledged that, at the time of the layoff, incoming
work had decreased but contends that the workload per
man had increased because of the August layoff of the
temporary summer employees.
3. James Lawrence Jones
Jones was hired on December 1, 1975, and, after running
passenger-tire molds for about a month, worked in the
front shop in sales, installation, and making service calls
with the truck. On April 5, his driver's license was suspend-
ed due to a drunk driving conviction, and on the following
day he told James R. Stevens, the front shop manager, of
the license suspension. It is not clear from the record who
drove the service truck for the 6 weeks following Jones' loss
of license, but on May 21, Roger [). Lowe commenced
working in the front shop, was assigned the service truck,
and took over the service calls.
Sometime between April and June, Jones asked Stevens
what his chances were of getting a raise, and was told Ste-
vens would have to talk to the owners about it and "he
would get back later to me." Nothing more was ever said
regarding the wage increase.
Jones' union activity was limited to the signing of an
authorization card at Garcia's house during the lunch hour
on an undisclosed date. He neither told nor had any reason
to believe that anyone from management knew of his sup-
port for the Union.
One morning in late September, Jones called Bryan to
report that he would not be in that day. Bryan told him
The complaint fails to allege, nor did the General (Counsel contend
either at the hearing or In his brief, that the foregoing statements were
violative of the Act. As the issue was not fully litigated. I make no findings
with respect thereto
What the precure entailed. or who performed that work. was not elicted
on the record.
[0 It was not shown that the Respondent wuas aware of his pres ious rperi-
ence.
that he was going to have to lay him off "because things
were slow and that he wanted to talk further on the subject
to me in person." On the following day, Bryan reiterated
his statement that the layoff was because "things were
going slow." No mention was made of the fact that Jones
had lost his driver's license and could no longer drive the
service truck.
D. The Respondent's Defense
Referring to a history of past layoffs. the Respondent
contends that the September 29 layoff was prompted by
business considerations and was based, in the cases of El-
don Akin and Garcia, on seniority and, in the case of
Jones, on the fact that he did not have the flexibility of job
functions, since he had lost his driver's license and could
no longer make service calls.'
Eaton testified that the Respondent had intended to ex-
pand the retread plant after substantial early summer sales
increases, but that it became obvious that sales would not
continue at that pace for a number of reasons: (a) a GSA
contract to do recapping at Vandenberg Air Force Base
and Fort Ord, estimated at $100,000, did not materialize:
(b) with the advent of a strike in the rubber industry in the
late summer of 1976, the Respondent expected the price of
new tires to go up, with the consequent increase in the sale
of the cheaper retreads, which expectation did not mate-
rialize; (c) expected sales to college students returning to
Cal Poly in mid-September did not materialize: j2 and (d)
increased competition from discount stores and other tire
dealers, Sears in particular, which had expanded from a
2-bay to a 10-bay operation in early August. Eaton charac-
terized the break-even point for sales at approximately
$90.000 per month and stated that, for August. with gross
sales of $94,554. the Respondent showed a net profit of
$379.56. Gross sales for the months of September and Oc-
tober were $89,341 and $67,036, respectively. While there
was a net profit for the first 8 months of the year, in the
amount of $25,320, commencing with September. accord-
ing to Eaton's uncontradicted testimony, the Respondent
sustained increasing losses, which resulted in a net loss for
the year of approximately $2,000.
A comparison of lines 53, 54. and 74 in Respondent's
Exhibits 5 and 6 tends to corroborate Eaton's testimony
regarding the profit through August and the loss for the
year. Thus, it is seen that the current net profit for the year
(current retained earnings) at the end of August was
$26,320 and prior retained earnings were $35,309.83. "Prior
retained earnings" in January 1977 were $32.762.87, indi-
cating a loss for the year 1976 of $2,546.96, and a loss for
the last 4 months of the year of $28,866.96 ($26.320 plus
$2,546.96). In this regard it is noted that the Respondent
lost $7,450.48 in January 1977, further reducing retained
earnings by that amount. Eaton testified that Respondent
realized that to improve the profit picture it was necessary
to try and increase sales and to cut down on inventories
and expenses. Unable to increase sales because of the com-
II he tetimins shows that sc rvlic calls are miade frontl ne to four imes
ia day and that each call tlla take frolm aIpproxirnalelv an hour toi an entire
da s t
I he student sales also failed to materlh,e In 1974
KIMBALL TIRE CO., INC. 353
petition, the Respondent reduced inventory by returning
merchandise and decided to cut expenses by reducing the
employee complement. Accordingly. in August three tem-
porary employees hired to work in the back shop for the
summer, Alire, Azevedo. and Morton, and a temporary
janitor, Morrow, were laid off.
Eaton testified that the first time the Respondent was
aware of union activity in its facilities was upon receipt of
the "R" case petition. which was filed on August 12. The
first thing he did thereafter was to ask Walter Akin if he
knew anything about it. which Walter denied. He next
called the West Coast Industrial Relations Association re-
garding the matter and then gave instructions to all mana-
gerial and supervisory personnel not to talk to the employ-
ees regarding the Union and that labor counsel would
handle all information regarding the Union. Eaton testified
that while he did not want to make any changes in the
employee complement at that time because of the advent
of the Union, the Respondent was having a problem meet-
ing the payroll, and the economic condition required that
something be done. He thereafter called his labor counsel
and told him the Company was in serious financial trouble
and was going to have to lay off several employees. He was
advised that a layoff at that time was the worst thing the
Respondent could do. However, aton emphasized the
fact that the Respondent could not meet the payroll and
was told that if he had to lay off anyone, it should be in the
inverse order of seniority by department. With incoming
orders in the retread shop slackening. 3 it was decided to
lay off Eldon Akin and Garcia. the two employees in the
back shop with the least seniority. In discussing additional
reductions, Eaton mentioned that Jones was a problem,
since he could no longer make service calls because of the
loss of his driver's license. Long, his labor counsel, then
approved Jones' layoff. Accordingly, the three were laid off
on September 29. While admitting that he knew Garcia
was in favor of the Union, since he had sat with the
Union's business agent at the representation case hearing,
Eaton denied that he had any knowledge that either Eldon
Akin or Jones favored the Union. Rather, he testified that
he felt that Eldon was pro-Company. since he had filed a
petition with the Board in 1970 or 1971 seeking to decertify
the Union. 14 He testified that he had also considered Jones
a vote for the Company, since he had been kept on as an
employee after losing his driver's license.
Contemporaneous with or shortly after the three layoffs,
Hendricks. the Grover City store manager, and Orville
lTeague, also from Grover City, commenced working at the
San l.uis Obispo facility.i' Hendricks had worked in the
San Luis Obispo facility from March 1972 until the Grover
City store opened and had experience in both the front and
back shops. After his transfer back to San Luis Obispo. he
did the truck-tire buffing, worked in the front shop, includ-
ing service-call work, and also worked in both the Grover
City and Atascadero stores. It is clear that none of the
alleged discriminatees exhibited that job versatility. Eaton
II th t l n ta c Irr rlhu Icd , ho ilI I Id - (i ar.la
4 t Respondenl pl)rerit~l had ., t ollecnc-h:rgainng relati,hLp
with the 1lnion in the late 19¢)'. and clrl 117'" ,
I~ lhe (;ro)vcr ( ts sitre openetl I ItILIt!-\ 1976
characterized Hendricks as "a very qualified buffer who
could do an) job in the retread plant and he could also
change truck tire, he could go back and run a store, if he
had to. and [we could] put him where he was the most
valuable to the Company." Teague does the passenger-tire
buffing at San Luis Obispo and performs multiple func-
tions also at all three stores. The Atascadero store, which at
one time was a five-man store, has been reduced to a two-
man store. While not definitively stated on the record, it
appears from the testimony that the Grover (City store is
now, as before a two-man store. Excluding supervisors, the
retread shop at San Luis Obispo has been reduced from
five to four employees, and the retail or front shop has
been reduced from four to three employees. And, while
there have been several new hirings, the evidence does not
disclose any intent to discriminate against the three men
laid off in September. Thus. Oscar Romero was hired after
September to replace his brother in the front shop, where
he drives a service truck and makes service calls.l HBen
Martello, an experienced alignment and brake man, was
hired in January 1977. following a fire which completely
destroyed the San luis Obispo shop." In addition to per-
forming service truck work, he did carpentry and mechani-
cal work on the burned-out premises. He has since re-
signed. None of the alleged discriminatees has the
versatility or experience possessed by Martello. In addition
to the transfers of Hendricks and Teague from Grover City
to the back shop crew, the only new hire in the back shop
has been Terry King. who was a temporary replacement on
the truck mold for his brother, who had sustained an in-
jury. John Waldron, an alignment man, replaced Forrest
Schmidt at the Atascadero store. None of the alleged dis-
criminatees was shown to be qualified for alignment work.
From the foregoing. it is clear that the Respondent has
reduced the number of employees at the three stores, and a
comparison of the payrolls for August 1976 (Resp. Exh. 5)
and January 1977 (Resp. Exh. 6) reflects the reduction.
Thus, the payroll for Januar' 1977 was $17,405.75, or
$4,445.40 less than the August 1976 payroll of $21.851.15, a
reduction of 20.34 percent. In this regard, it is noted that
the salaries of the officers show a 33 percent reduction
from $2,610 to $1,740.
E. Conclusion
Upon the basis of the foregoing facts, I conclude and
find that the layoffs of Eldon Akin, Garcia, and Jones were
for economic reasons, and not, as alleged in the complaint.
because they "joined or assisted the Union or engaged in
other protected concerted activities for the purposes of col-
lective bargaining or mutual aid or protection."
E. The Objeclion to the Election
The objection to the election states:
The Employer unlawfully dissipated the appropriate
. i.c, ,,s unihilc t s dr 4,c Apte .April . 19'(h hc.z,>i c Of his drier'
Sec Rep I h 5. the haricd hb.ni the fr Alquusl 7th
KIMBALLTIRFCO.. INC
... ... ... , ... .. x .
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
unit by laying off and promoting employees for the
sole purpose of disenfranchising them.
1Having found that Eldon Akin, Garcia, and Jones were
not unlawfully laid off, and no evidence having been sub-
mitted that any employees were promoted, I find no merit
to the objection as stated. Remaining, however, is the ques-
tion posed by the Regional Director in the challenged bal-
lots portion of the Supplemental Decision on Objections
and Challenges, Order Directing Hearing and Order Con-
solidating Cases, regarding the challenged ballot of Dale
Overland. That question is whether one of the Respon-
dent's supervisors told an employee that Dale Overland,
who was hired 2 days before the payroll eligibility date,
had been hired by the Employer to "vote no" in the elec-
tion. The Regional Director recites that:
Since this allegation is similar to the objection in this
matter and related to the unfair labor practice issues. I
conclude that it can best be resolved by a hearing to-
gether with the issues raised in the complaint and no-
tice of hearing.
There is no allegation in the complaint, and no conten-
tion was made at the hearing herein or in the post-hearing
briefs, that the statement, if true, constituted a violation of
the Act. Insofar as the statement might affect the voting
eligibility of Overland, that is no longer an issue. since the
parties have stipulated that Overland was a temporary em-
ployee and not eligible to vote in the election. '[he issue
has, therefore, been considered solely as an objection to the
election.
Luis Silva, a recapper employed in the back shop, testi-
fied on direct examination that in a conversation with Ste-
vens, the supervisor in the front shop, in early October, "I
asked what he thought about Dale Overland's vote and he
told me . . . he was hired for a no-vote." [Emphasis sup-
plied.] On cross-examination he admitted that he had
asked Stevens how he thought Overland would vote, and that
Stevens "in a joking way" responded, "It was a no-vote."
Recalled as a witness by the undersigned, Silva testified
that "I asked him why they had hired him and he told me
it was to vote no" in a joking manner. He testified further
that Stevens said, "It could be a no-vote" and "he was
hired for a no-vote." Respondent's Exhibit 2 shows that
Overland was hired on September 13, 4 days after the "R"
case hearing, to work in the Atascadero store. At that point
in time it could not have been known by the Union or
Respondent whether the unit would embrace the single San
Luis Obispo store unit, as sought by the Union. or a three-
store unit, as contended by the Respondent. Consequently,
I doubt the Respondent would have sought to "pack" the
unit at that time by hiring an employee in Atascadero. No
further evidence was offered by any of the parties regard-
ing Overland except. as stated above, they stipulated that
he was a temporary employee and not an eligible voter.
While I believe Silva attempted to recall exactly what
was said between him and Stevens. his testimony is some-
thing less than exact.'8 It is one thing to ask how one thinks
an employee is going to vote and quite another to ask why
he wsas hired; vet this is precisely how Silva testified. He
was equally imprecise in giving Stevens' response: at first
"he was hired for a no-vote": second, in a 'joking way," "it
was a no-vote": third, in a "joking way . . it was to vote
no"; fourth, "it could be a no-vote": and fifth, "he was
hired for a no-vote." Upon the foregoing, I conclude that
Silva asked Stevens how he thought Overland would vote
in the forthcoming election, and that Stevens' response was
to the effect he thought Overland was "a no-vote." In any'
event, Silva characterized Stevens' response as "joking,"
indicating to me that Silva did not take Stevens' response,
whatever Silva now states it to have been. seriously. Gener-
ally speaking, it is the impact or effect upon employees that
concerns the Board where objectionable conduct is alleged.
In these circumstances. I find that Stevens' response to Silva's
question about how he thought Overland would vote had no
adverse impact or effect upon any employee. Accordingly,
I recommend dismissal of the objections to the election in
their entirety.
(i. 71he C(hallenges
'The tally of ballots discloses three ballots cast for the
Union, eight against, and seven challenged, which were
sufficient in number to affect the results of the election.
The Regional Director overruled the challenge to the ballot
of Gene Grey; the parties stipulated at the hearing herein
that Greg Bryan and Dale Overland were not eligible vot-
ers; and I have found that Eldon W. Akin, James R. Gar-
cia, and James L. Jones were permanently laid off for eco-
nomic reasons. Accordingly, I recommend that the
challenges to the ballots of Greg Bryan, [)ale Overland,
Eldon W. Akin, James R. Garcia and James L. Jones be
sustained.
CN( I SONS (1 LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. he Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has not engaged in the unfair labor
practices alleged in the amended complaint.
[Recommended Order omitted from publication.]
t In this regard . hen tecliled as a1 willness Sis chlilanLged his peillu,
testimniny bh substantiall decreasing the number hours he claimed
Teague spent per week buffing res,.
"nl light f the resolution of the hallenlges of (irc. HiBran .and ()ver-
tind. the pariie agreed it as IticCTsstr\ iN) locrinllnc lite eligibilit of
W I) Ilendrlik. since his h;allo could nl affect . the results f the elcctirn