Mission Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Jan 3, 1974

208 N.L.R.B. 84 (N.L.R.B. 1974)

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LeBoe Tire and Rubber Company, d/b/a Mission Tire shall have been certified by the National Labor
& Rubber Company and Teamsters Automotive Relations Board as the exclusive collective-bargain-
Workers Local 495, International Brotherhood of Ing representative of said employees."
Teamsters, Chauffeurs , Warehousemen and Help- 2. Substitute the attached notice for that of the
ers of America Administrative Law Judge.
LeBoe Tire and Rubber Company , d/b/a Mission
Tire & Rubber Company , Employer-Petitioner and
Teamsters Automotive Workers Local 495, Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Union-
Petitioner. Cases 31-CA-3067, 31-CA-3235,
31-RC-2066, and 3 I-RM-299
January 3, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On January 26, 1973, Administrative Law Judge
George H. O'Brien issued the attached Decision in
this proceeding.' Thereafter, the General Counsel
and Respondent filed exceptions and supporting
briefs. Respondent also filed an answering brief and
a motion to correct the transcript,2 and the General
Counsel filed a motion to reopen the record.3
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions, briefs,
and motions, and has decided to affirm the rulings,4
findings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order as
modified below.5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that Respondent,
LeBoe Tire and Rubber Company, d/b/a Mission
Tire & Rubber Company, Glendale, California, its
officers, agents, successors, and assigns, shall take the
action set forth in said recommended Order, as so
modified:
1. Substitute for paragraph 2(c) of the Adminis-
trative Law Judge's recommended Order the follow-
ing:
"(c) Withhold all recognition from United Tire and
Retreaders of Mission Tire as the bargaining repre-
sentative of any of Respondent's employees unless
and until United Tire and Retreaders of Mission Tire
' United Tire and Retreaders of Mission Tire appeared as Intervenor at
the hearing
2 Absent objections from any party, Respondent's motion to correct the
transcript is hereby granted
4 Absent objections from any party, the General Counsel's motion to
reopen the record for the limited purpose of receiving certain documents
into evidence is hereby granted.
4 Respondent contends the Administrative Law Judge erred in denying
Respondent's motions, made under rule 43(a) of the Rules of Civil
Procedure for United States District Courts, to examine all of the Teamsters
authorization cards utilized by Stewart to refresh his recollection prior to
testifying. In rejecting Respondent's contention, we note that all such cards
were introduced into evidence during the course of the hearing, and
Respondent was afforded the opportunity to examine the cards and to
examine and cross-examine witnesses, including Stewart, with regard
thereto
We further find no merit in Respondent's contention that it was
prevented from presenting a full and complete defense and , therefore, was
deprived of due process because the Administrative Law Judge excluded
certain testimonial and documentary evidence relating to the 8(a)(2)
allegations in the complaint and to Objections 3 and 4 to the election
Respondent complains particularly about the General Counsel's refusal to
permit, under Sec. 102.118 of the Board's Rules, one of his agents, O'Dwyer,
to testify about certain advice he allegedly gave Respondent's employees
Such evidence as Respondent sought to adduce could as well have been
adduced by Respondent from the employees with whom O'Dwyer allegedly
spoke In any event, any advice which O'Dwyer may have given the
employees could in no manner have exculpated Respondent from the
8(a)(2) violations found herein We find the General Counsel's refusal to
permit his agent to testify was not prejudicial to Respondent
5 In the absence of exceptions thereto, we shall adopt, pro forma, the
Administrative Law Judge's dismissal of certain allegations of the
complaint
We disagree with the Administrative Law Judge's finding that Respon-
dent violated Sec 8(a)(1) of the Act through Supervisor Lee's May 5
statement to the effect that Respondent neither would be competitive nor
able to remain in business in the event the Union "came in" and made the
same demands on Respondent as are contained in that Union's contracts
with others In our view, that statement is merely an expression of opinion
reasonably based on known economic facts which is protected by Sec 8(c)
of the Act
In addition, since the evidence to support Objection 3 is predicated solely
on that statement, which reasonably could not have interfered with the
employees' free choice in the election, we find that Objection 3 is without
merit and hereby overrule said objection. Consequently, we reject the
Administrative Law Judge's reliance on the foregoing statement as one of
the supportive grounds establishing both Respondent's violation of Sec.
8(a)(2) of the Act and the validity of Teamsters Objection 4 which, in and of
itself, presents sufficient,cause to set aside the results of the July 12, 1972,
election
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we violated Federal law by
interfering with the administration of United Tire
and Retreaders of Mission Tire, by discharging an
employee for supporting the Teamsters Union, and
208 NLRB No. 12
LEBOE TIRE & RUBBER CO. 85
by attempting to influence employees' choice be-
tween the two Unions:
WE WILL offer Ivory Stewart full reinstatement
and pay him for the earnings he lost as a result of
his April 24, 1972, discharge, plus 6-percent
interest.
WE WILL NOT interfere with the formation or
administration of, or contribute support to,
United Tire and Retreaders of Mission Tire, or
any other labor organization, and we will not
recognize United Tire and Retreaders of Mission
Tire until that organization is certified as our
employees' collective-bargaining representative
by the National Labor Relations Board.
WE WILL NOT discharge or discriminate against
any employee for supporting Teamsters Automo-
tive Workers Local 495, or any other labor
organization.
WE WILL NOT unlawfully interfere with our
employees' union activities.
LEBOE TIRE AND
RUBBER COMPANY,
D/B/A MISSION TIRE &
RUBBER COMPANY
(Employer)
consolidated amended complaint alleges in substance that
Respondent by discharging Ivory Stewart, by interfering
with the formation and administration of United Tire, by
contributing support to United Tire, and by coercive
interrogation and threats, violated Section 8(a)(1), (2), and
(3) of the National Labor Relations Act. The complaint
further alleges that, at all times material , Teamsters
represented an uncoerced majority of Respondent's em-
ployees in a unit appropriate for collective bargaining, and
concludes with a prayer that Respondent , inter alia, be
required to recognize Teamsters as the exclusive collective-
bargaining representative of its employees and to bargain
in good faith with Teamsters.
Respondent's answer, as amended , denies the commis-
sion of any unfair labor practice and avers, as an
affirmative defense that Teamsters evidence of representa-
tion was procured by a foreman, Michael Chinzi, and is
therefore invalid.
By a further order of consolidation issued September 12,
1972, two objections by Teamsters to conduct of Respon-
dent affecting the results of a Regional Director directed
election held July 12, 1972, were placed in issue.
Upon the entire record in this proceeding , including my
observation of the witnesses, and after due consideration of
the posthearing briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office, Federal Building, Room 12100, 11000
Wilshire Boulevard, Los Angeles, California 90024,
Telephone 213-824-3457.
DECISION
STATEMENT OF THE CASE
GEORGE H. O'BRIEN, Administrative Law Judge: This
consolidated proceeding was heard in Lds Angeles,
California, on October 11, 12, and 13, 1972. In this
Decision LeBoe Tire and Rubber Company, d/b/a
Mission Tire and Rubber Company is called Respondent,
Teamsters Automotive Workers Local 495, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America is called Teamsters, and United
Tire & Retreaders of Mission Tire is called United Tire.
The complaint, issued June 1, 1972, is based on a charge
filed by Teamsters on April 26, 1972. The consolidated
amended complaint, issued September 8, 1972, is based on
the charge filed April 26, 1972, and on a charge filed by
Teamsters July 25, 1972, as amended August 25, 1972. The
Respondent is a California corporation with a manufac-
turing plant, warehouse, and principal office in Glendale,
California, and a retail store in Stanton , California. It
annually purchases and receives at its Glendale plant and
Stanton store goods valued in excess of $50,000 which are
shipped directly from points located outside the State of
California . Respondent is an employer within the meaning
of Section 2(2) of the Act engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Teamsters and United Tire are labor organizations
within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES AND THE
CONDUCT ALLEGED TO HAVE AFFECTED THE RESULT
OF ELECTION
A. The Issues in Cases 31-RC-2066 and
31-RM-299
Pursuant to a Decision and Direction of Election issued
by the Regional Director for Region 31 on June 16, 1972,
an election was held on July 12, 1972, with the following
result:
Teamsters 9
United Tire 23
No union 2
Challenged ballots 2
Void ballot 1
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Objections to conduct of employer affecting the results of
election were filed by Teamsters on July 18, 1972. In his
order consolidating cases issued September 12, 1972, the
Regional Director found:
The issues raised by Objections 3 and 4 are related to
certain allegations . . . in the consolidated amended
complaint . . . and involve the same evidence .. . and
can best be resolved by a hearing... .
The objections on which I am required by Section 102.69
of the Board's Rules and Regulations, Series 8, as
amended, to report (all other objections having been
withdrawn) are:
Objection 3. Between the date of the filing of the
petition and the day of the election the employer
threatened employees with reprisals in connection with
their union activities and sympathies.
Objection 4. Between the date of the filing of the
petition and the day of the election the employer
created ... United Tire & Retreaders of Mission Tire,
and coerced its employees to accept United Tire &
Retreaders of Mission Tire as their collective bargain-
ing agent.
The fact of consolidation and the fact that evidence
material and relevant to the issues raised by the complaint
and answer is before the Board in this consolidated
proceeding invoke two issues not normally present in
representation hearings. These are: (a) whether Teamsters
"evidence of representation" was obtained through the
active participation of a supervisor; and (b) whether
Respondent, prior to filing its petition on June 2, 1972, had
received a request for recognition as collective-bargaining
agent from either Teamsters or United Tire.
B. The Issues in Cases 31-CA-3067 and
31-CA-3235
The General Counsel asserts that Ivory Stewart was
discharged on Monday, April 24, 1972, because, during the
previous week, he solicited the signatures of his fellow
employees on cards authorizing Teamsters to represent
them in collective bargaining. Respondent answers that it
was, unaware of any such activity by Stewart, who was
discharged for the sole reason that his work performance
was less than satisfactory. The date of April 24 was
selected for discharge because Respondent then had a full
complement of employees, Respondent was aware that
Stewart was seeking work elsewhere as an upholsterer, and
Respondent decided that the employment relationship
should be terminated at its own convenience, rather than at
the convenience of the employee.
Specific acts of assistance to United Tire are alleged to
be: (a) a promise by Owen Lee, plant manager, to
employees Michael Chinzi and Roy Trujillo on May 5,
1972, that Respondent would bargain with the employees if
they formed their own organization; (b) providing blank
cards to United Tire organizer Michael Chinzi on May 8;
(c) assistance by Owen Lee to United Tire organizers,
Chinzi and Trujillo, in the solicitation of authorization
cards on May 8; (d) granting time off during working
hours on May 8 to Chinzi and Trujillo for United Tire
business; and (e) promising on July 6, 1972, that Respon-
dent would bargain with United Tire if it won the July 12
election.
The General Counsel contends and Respondent denies
that in April 1972 Alward Daley was a supervisor within
the meaning of Section 2(13) of the Act.
Respondent contends and the General Counsel denies
that Michael Chinzi was, between March 1 and May 12,
1972, a supervisor within the meaning of Section 2(13) of
the Act.
Other acts of unlawful interference alleged in the
complaint and denied in the answer are: (a) interrogation
of Chinzi by Lee concerning his union sympathies in
March 1972; (b) a simultaneous request by Lee of Chinzi
to engage in surveillance of the union activities of his
fellow employees; (c) an announcement on Tuesday, April
24, 1972, by Daley to employees Chinzi, Trujillo, and
Krippner that Stewart had been discharged for union
activities; (d) a statement on May 5, 1972, by Lee to Chinzi
and Trujillo that Respondent would close the plant if
employees selected Teamsters as their representative; and
(e) a statement on July 12, 1972, by Lee to employee
Rodriguez that if Rodriguez voted for Teamsters he would
be given no more work by Respondent.
C. Respondent's Operation
Respondent is a corporation engaged in the manufacture
and sale of retreaded tires and the sale of new tires and
related items. Its plant on San Fernando Road in
Glendale, California, embraces a large yard and four or
five buildings.
Worn tire casings are dropped off by Respondent's
truckdrivers in the yard "up front." The retreading process
is performed in the main plant. Retreaded tires are stored
in the main warehouse. New tires and accessories are
stored in Warehouse 1. New tires and retreaded tires are
stored in Warehouse 2. Retreaded tires are stored in
Warehouse 3.
Jules LeBoe has been the head of the business since 1929
and has been president of the corporation since its
formation in 1967. LeBoe spends all of his time in his
office. Owen Lee is secretary-treasurer of the corporation
and plant manager. Lee spends 95 percent of his time in
the plant and in the yard. The general manager, Red
Abrun, spends most of his time on the road, engaged in
selling Respondent's product.
D. Supervisory Status of Alward Daley and Michael
Chinzi
Daley did not testify.
1. The testimony of Owen Lee
Daley was absent on sick leave from October 1971 to
and through March 1972. Prior to October 1971 Daley's
job title was foreman. He directed the working forces at the
plant; be laid out job duties for the employees and shifted
men around "as was indicated by who came to work that
day;" he had authority to grant time off from work and to
LEBOE TIRE & RUBBER CO.
excuse tardiness; he recommended discipline; he had the
power to suspend employees and to administer oral
reprimands; and he reported to Lee on the progress of
employees and had the power to recommend hiring and
discharge.
When Daley left in October of 1971 all of his duties and
responsibilities were assigned to Michael Chinzi. In March
of 1972,
It was assumed that when Mr. Daley returned, he
would assume his position as foreman that he had prior
to his leaving. I so informed Mr. Chinzi. During the
next couple of days, there seemed to have been some
confrontations between the two. To try to keep peace-
and harmony in the group, we decided that it might be
better if Mike continued in his capacity as foreman due
to the fact that he did tell me that he would be leaving
shortly and Mr. Daley would work up front with me.
When Chinzi left on May 12, 1972, Daley returned to his
former job as foreman.
In March 1972, in contemplation of Daley's return, a list
of names was prepared showing "the new job status that
we were going to do based on our increased production
which we would assume would start the following week."
On this list Daley was designated as foreman and Chinzi as
"working in back as a warehouseman and leadman."
Chinzi's foreman duties were to be taken over by Daley.
The changes contemplated by the list were never imple-
mented, and Chmzi continued to perform his duties as
foreman until he left the Company.
2. The testimony of Michael Chinzi
Chinzi was employed by Respondent for about 3-1/2
years. He performed Daley's duties during the 6 months of
Daley's absence, and ceased to perform those duties on
Daley's return. One man was discharged on his recommen-
dation. On two occasions he recommended wage increases
and both were granted. He reported once or twice a week
to Daley on the performance of the men he supervised.
After Daley returned to work Chinzi "didn't fire anybody."
About 2 weeks after Daley's return, Chinzi was shown a list
of names whereon Daley was shown as foreman and
Chinzi was shown as order picker. On one occasion after
Daley's return Chinzi complained to Lee that he was
continuing to perform Daley's work, but was not being
paid for it.
In a pretrial affidavit executed May 1, 1972, Chinzi
stated:
I am foreman of the plant at Mission Tire and
Rubber Company. When Owen Lee was on vacation in
February and the first of the year I took over for him. I
scheduled the runs for the truck drivers and others.
I do everything in the plant. I am responsible for
controlling the work that is done. When the men work
weekends, Owen does the giving out of overtime. Al
Daley is called foreman also but he is absent from the
job a lot and I take over for him.
I sent Jay McVey home a couple of months ago. He
87
was insubordinate to me . I told him to punch out and
go home. Owen countermanded my orders. Jay stayed
for three hours and then went home. I have sent Sam
Young home and Owen kept him on.
3. Other evidence relating to supervisory status of
Daley and Chinzi
On May 9, 1972, Respondent delivered to the Board's
Regional Office a "List of Employees." The document is
typewritten, with 36 names and job descriptions in two
columns, double spaced. Two additional names and job
descriptions are interlined . These are:
Mike Chinzi Warehouseman
Alward Daley Shipping Clerk
On the day of the preelection hearing in the representa-
tion cases, June 6, 1972 , counsel for the employer and
counsel for Teamsters agreed that they would not litigate
the supervisory status of Daley, but would defer that
question to the challenge procedure.
Daley did vote on July 12, 1972, and his vote was not
challenged. Chinzi, although he was not employed by
Respondent on either June 6 or July 12, acted as observer
for United Tire at the July 12 election.
Krippner testified that when Daley returned to work,
and while Krippner was employed "up front" in the main
warehouse , he was told by Lee:
... that Al was now our foreman and Mike was back
in the warehouse. He was a warehouseman again. You
see, Mike had been the foreman and when Al came
back , Al was foreman.
After Krippner's transfer to Warehouse 3 on April 24 or
25, 1972, Chinzi reported to Lee that Krippner's work was
satisfactory.
Thurmond Duke was hired in March 1972. Shortly after
he started to work he overheard a conversation between
Lee, Chinzi, and Daley and "they said that Mike would be
the foreman in the back and Al would be the foreman up
front."
On May 8, 1972 , John Eugene Howe signed a card for
United Tire at the request of Chinzi . Howe testified that he
signed "because [Chinzi ] was more or less the boss around
there" and Howe did not want to get in trouble.
4. Conclusions as to the supervisory status of
Daley and Chinzi
The dispersal of the work force of more than 35 persons,
the variety of their duties, and the fact that many are short-
term employees are indicative of the need for some
intermediate supervision. The mutually corroborative
testimony of Chinzi and Lee establish that from October
1971 to some date in March 1972 Chinzi was a supervisor
within the meaning of Section 2(11) of the Act . He had the
power to "effectively recommend" in the exercise of
"independent judgment" the "transfer," the "reward," and
the "discipline" of employees , and "responsibly to direct
them." The testimony of Lee , corroborated by Krippner
and Duke, establishes that after his return Daley per-
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formed these supervisory functions "up front." Lee's
testimony that Chinzi, after the return of Daley, continued
to perform these functions "in the back" is corroborated by
Chinzi's pretrial affidavit. It is most unlikely that employ-
ees in the back, particularly the inexperienced Krippner,
would have been left without any direct supervision.
I find that from and after April 1, 1972, Chinzi was a
supervisor within the meaning of the Act, over employees
in the back of Respondent's plant, and that Daley was a
supervisor within the meaning of the Act over employees
"up front."
E. Sequence of Events
Ivory Stewart started to work for Respondent in
September 1963. In 1970 through January 23, 1971, he
attended upholstery school in the evening after work. In
June 1971, he injured his back and was granted sick leave
by LeBoe. When he returned to work in September, he was
told by LeBoe that he should report half an hour later than
the other employees and remain on the clock for 8 straight
hours. LeBoe said:
You are very valuable around here. We need you
because you know where most everything is . . . the
orders have to get out . . . eat if you can.
Most of Stewart's time was occupied by moving the
retreaded tires from the main plant to Warehouse 3 and
stocking them on racks. He was frequently called away
from this work to mount tires for customers, or to locate a
specific tire, or to perform the work of some absent
employee. He either brought his own lunch, or bought it at
a hamburger stand across the street. He did not punch out
during these brief absences from Respondent's premises.
On some date in March 1972, Lee, having heard rumors
that some employees were discussing the feasibility of
joining some union, asked Chinzi to let him know what was
happening, if anything. Chinzi told Lee not to be
concerned, that no one was going to sign for the union.
Shortly after Daley's return, probably during the first
week in April:
The guys in the yard were getting the heavy work load,
and all of them started griping and when it gets hot
everybody gets angry and so everybody got angry and
Ivory said he knew somebody in the Union and
[Chinzi I and Roy [Trujillo] delegated the thing to Ivory
and Ivory carried the thing from there.
During the second week in April, Stewart asked Lee for a
raise. Lee denied the request on the ground that Stewart
was then being paid more than the top of the scale and
Lee's belief that Stewart "was not doing his job 100%."
During the same period, Lee told Stewart that he wanted
four racks stocked per hour, or 420 tires in 7 hours. When
Stewart reminded Lee that he had other duties to perform,
Lee told him to do the best he could. Lee testified, "I felt in
some instances he was right."
On Wednesday, April 12, after work, Stewart telephoned
the union office, and was told that he should telephone the
business agent, Mr. Henderson, the following week.
On Friday morning, April 14, Stewart received permis-
sion from LeBoe to leave early on personal business.
Stewart failed to punch out when he left shortly before
2:30 p.m. At 2:30 p.m. LeBoe called Stewart on the
loudspeaker to mount tires for a customer. When Stewart
did not respond, LeBoe sent Lee in search of Stewart. He
did not tell Lee that Stewart had permission to leave early.
On Monday, April 17, LeBoe reminded Stewart that he
should always punch out when leaving the plant and wrote
in Stewart's departure time as 2:30 p.m., Friday on the
timecard.
At noon on Monday, April 17, Stewart called Henderson
from a pay telephone at the hamburger stand. That night,
Henderson called at Stewart's home, gave him blank
application for membership cards, told Stewart to return
the cards to him after a majority had signed, and
Henderson would take it from there.
On Tuesday morning, April 18, Stewart showed the cards
to Chinzi, stating: "that you would have to be a Teamster
man in order to work there. You would have to be a union
man in order to work." Chinzi then told Stewart to remain
in Warehouse 3, and that Chinzi would send employees to
him one by one to sign the authorization cards. In
approaching the individual employees Chinzi said, in
substance:
Do you - want to do something about organizing
yourselves down here and to get better pay and better
safety conditions and everything. Just sign a card with
Chinzi personally escorted to Stewart the following card
signers: Joe Godinez, Mike Cortez, Manuel Rentena.
Chinzi was present when cards were signed by Roy
Trujillo, Bob Krippner, Gary Petty, and John Allen. Four
other employees were told by Chinzi to see Stewart in the
warehouse. These were Dave Rominez, John Howe,
Richard Brown, and one other. Chinzi heard Stewart tell
employees "that they would have to sign or lose their jobs."
In that one day, Tuesday, April 18, 17 employees signed
cards at the door of Warehouse 3 and returned them to
Stewart.
On one of the following days Stewart spoke to Felix
Delgado and Rubin Delgado, up front in the main plant.
Each took a card home with him, signed the card at home
and returned it to Stewart on Friday, April 21. On some
evening during the same week in the parking lot after work,
Refugio Delgado signed a card and returned it to Stewart.
On Thursday, April 20, Lee reminded Stewart that he
was not stocking enough tires. Lee testified, "essentially we
said the same things that I said in the prior meeting."
On the afternoon of Monday, April 24, Stewart was
called to LeBoe's office. LeBoe told Stewart that "things
were slow and he was going to have to lay somebody off."
LeBoe wrote out a check, which he said was pay for a full
week and handed it to Stewart. There is no evidence that
Stewart communicated with anyone before leaving the
plant.
On Monday, April 24, Teamsters filed the petition
docketed as Case 31-RC-2066.
On Tuesday, April 25, Robert Krippner was escorted to
Warehouse 3 by Daley and informed that he would be
doing Stewart's job. There Chinzi, in the presence of
LEBOE TIRE & RUBBER CO.
Krippner and warehouseman Roy Trujillo, asked what
happened to Stewart. Daley replied that Stewart had been
fired. When either Trujillo or Chinzi asked "Why?," Daley
replied: "that he had told Ivory to keep things quiet and
that was the reason he' was discharged because he was
passing out union cards."
On Monday, May 1, a Board agent took statements
from, inter alia, Chmzi and Krippner as part of his
investigation of Case 31-CA-3067.
The events of Thursday, May 4, are graphically and
accurately summarized by Chinzi as follows:
We just generally were mad about the work load that
was left between me and Roy in the stock room and me
and Roy got in a little bit early in the morning and we
kind of had a bad night and we were at each others
throats and so Owen came between us and we all went
to the tube room and me and Roy just started telling
Owen and laying it on the line about the working
conditions and the sanitary conditions and the work
loads on everybody and Owen was trying to be the
mediary between us. He said if we didn't like it to get
out and we got out. We walked to the office and Owen
said to put them down as quitting and we said "No,
because you said to get out" and we settled down and
Al Daley walked into the office and we all then went
back to the tube room to talk it over some more.
In the tube room, there was further discussion of
workloads, pay, sanitary conditions and hazards. Trujillo
asked Lee why Stewart had been fired. When Lee
answered, "He wasn't doing his work, was he?" Trujillo
remonstrated:
... it was a pretty rotten deal that they handed
Ivory, because Ivory was doing his job and helping
everybody else out at the same time ... they would be
calling up in the middle of anything he was doing and
there was no way possible that he could be doing his
job he was required to do.
On Friday morning, May 5, there was a conference in
LeBoe's office. Present were LeBoe, Lee, Abrun, Daley,
Chinzi and Trujillo. In the course of the meeting Lee stated
that, based on his knowledge of Teamsters contracts, it
would be impossible for Respondent "to pay those types of
wages and remain competitive and stay in business." He
also said that if the Teamsters came in and made those
demands Respondent would have no alternative, it would
have to close down the plant. Chinzi then asked, "Why
don't we get our own union in here?" Lee replied that if an
independent union were formed and if it won the Labor
Board election, Respondent would negotiate with it. Lee
testified:
I explained to them most emphatically that we in no
way could have any dealings or support either union,
either Teamsters or employees' unions and we would
offer them no assistance or no help or no advice or
nothing in this way whatsoever.
Chinzi understood Lee's remarks about Teamsters to
mean, "They would have to close down the plant if the
89
Teamsters came in." Trujillo understood Lee's meaning to
be, "They would padlock the place if the Teamsters came
in." When Chmzi asked if he could have a meeting on
company property, Lee denied the request on the ground
that he would then be required to grant the same privilege
to Teamsters.
Trujillo restated his opinion that Stewart had received a
"dirty deal." Lee answered that Stewart would have his job
back, and LeBoe agreed.
Following the meeting in LeBoe's office, Chinzi tele-
phoned the Board agent whom he had met on May I and
asked "How do we go about organizing our union?" The
Board agent replied that he should get authorization cards
signed and have them checked at the NLRB.
Chinzi then prepared a notice calling a meeting at his
home at 7:30 p.m. that night. Trujillo translated the notice
into Spanish, and both notices were posted on Respon-
dent's bulletin board.
On Friday evening, May 5, 31 of Respondent's employ-
ees met at Chinzi's home. Chinzi presided. There was a
general discussion of sanitary conditions, pay raises,
starting pay, piecework, hazards, and general working
conditions. Before any action was taken, Stewart appeared.
After about 4 minutes, Stewart left and half the people left
with him.
On Saturday, May 6, Chinzi, Trujillo, and Tony
Delgado, Jr., prepared a body of laws. Chinzi purchased
blank 3 x 5 index cards. Chinni testified:
First, I had to print all the printed matter that would
resemble as closely as possible and which related to the
printed matter on the Teamsters' card and have the
employees fill it out.
On Monday, May 8, 31 employees signed United Tire
authorizations at Chinzi's request. In soliciting signatures,
Chinzi said, in substance:
... this was for the Mission Tire Union . . . if you
want to organize yourselves without any big brother up
above us pushing us around and without spending $100
initiation fee and going to meetings in your spare time,
if you don't want that, you can go with us and we can
do it ourselves down here ... for higher wages, and
better benefits and working conditions and less hazards
and better sanitary conditions, that they shouldjoin us
and have the full advantage of a full big union and all
set to keep it to ourselves ... we would have a union
contract signed and have the management sign it and
stick to it ... also that the company agreed to meet
our demands ... I said we will intervene with the
Teamsters. That means that there will be more than
one name on the ballot and that way, we can choose
between the Teamsters and the company union or I
should say, United Tire.
Lee observed this solicitation without protest. When
Chinzi ran out of his prepared cards, he obtained 10
additional blanks from Lee. After obtaining the 31st
signature he obtained LeBoe's permission to go to the
Board office where he filed the cards, and gave a second
statement to the same Board agent.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 2, 1972, Respondent filed the petition docketed
as Case 3l-RM-299, stating that Teamsters had requested
recognition on April 24, 1972, and that United Tire had
requested recognition on May 4, 1972. '
On June 6, 1972, a hearing was held in the representation
cases.
On June 16, 1972, the Regional Director issued his
Decision and Direction of Election.
In the week prior to the July 12 election, Lee called two
meetings of employees, one in the warehouse and one in
the yard. At these meetings Lee said in substance:
The Teamsters are an organization that is in business to
make money. They are interested in dues and initiation
fees and they all drive quite large cars, whereas we
don't. I believe the Teamsters Union is not needed in
our situation. I believe we could handle our problems
ourselves as a group, as a family, as we always have.
Any time anybody has a problem or complaint, they
always have and always can feel free to come to me.
We can solve our problems ourselves without any
outside help.
At one of the meetings Lee conceded that the restrooms
were dirty and said that the Respondent intended to have
an outside maintenance company take care of them. At
both meetings Lee stated that he could make no promises,
and that Respondent would bargain with whichever union
won the election.
On the day of the election, July 12, Lee told Oscar
Rodriguez that because his name did not appear on the
voting eligibility list he would not be allowed to vote.
Rodriguez testified:
When I was in the restroom, Mr. Owen came to the
restroom and told me I was not on the list of people for
the election and that I could vote for the election, but if
I vote, maybe I wouldn't work any more for him.
Lee testified:
Mr. Rodriguez does speak half English and half
Spanish and we can't communicate on those lines and I
tried to explain to him that when we made up the
original list of employees . . . that we were requested to
furnish for the Union . . . I told him that because he
was away on sick leave and I wasn't sure when he
would return, we omitted his name from the list and
therefore he would not be allowed to vote.. . . I
explained it to him in my Spanish and my English .. .
he understood perfectly . . . he walked out in the yard
and watched everyone else voting and he didn't.
F. Concluding Findings
1. Ivory Stewart was discharged because of his activi-
ties on behalf of Teamsters and for no other reason.
Respondent's animus is evidenced by Lee's remarks in
LeBoe's office, and in his preelection talks. Stewart was a
long-time , highly valued, privileged employee. He was
discharged near the beginning of a pay period , before the
end of his shift , the next working day after he obtained
Teamsters authorizations from employees who were
directly supervised by Daley. Daley, who was working "up
front with " Lee was in a position to know the true reason
for the discharge, and he announced, without equivoca-
tion, that Stewart was discharged for passing out union
cards. In the discharge interview, LeBoe lied to Stewart,
and must have known that Stewart knew he was lying.
LeBoe did not testify. Lee's testimony that LeBoe told
every employee, discharged for any reason, that he was
being laid off for lack of work, and that LeBoe indulged in
this prevarication for fear of physical violence, is uncorro-
borated hearsay, without evidentiary value. Lee lied to
Chinzi and Trujillo when he stated that Stewart had been
discharged for not doing his job, and must have known
that they knew he was lying. Lee's promise to. reinstate
Stewart, made while he was encouraging Chinzi and
Trujillo to form an independent union, is an implied
concession that Stewart's work was in fact satisfactory.
Additional reasons, advanced for the first time in Lee's
testimony, are pure afterthoughts. Lee's testimony that
Stewart frequently failed to punch the timeclock would, if
credited, merely constitute further evidence of the special
privilege which he enjoyed. Lee's testimony that he
expected Stewart to quit without notice whenever he found
a job as an upholsterer, and that "I decided that now is the
proper time to let him go, at our convenience, rather than
at his convenience" is specifically discredited. Stewart had
completed his upholstery training in January 1971, and
nothing occurred in 1972 which would give Respondent
any reason to suspect that he was seeking other employ-
ment. Neither was this a "convenient" time to discharge
Stewart. Lee testified:
Q. (By Mr. Bradshaw) Was Mr. Stewart laid off for
lack of work?
A. (By Mr. Lee) No, he was not.
Q. Was there an adequate amount of work in the
plant to keep the other employees, Mr. Stewart, busy?
A. Yes.
2. Respondent interfered with the formation and
administration of United Tire and contributed support to
it, by the following acts and statements: (a) Lee's statement
on May 5 that if Teamsters demanded the wages and
conditions which they had in other contracts Respondent's
plant would close; (b) Lee's prompt approval of Chinzi's
suggestion that the employees form their own union; (c)
Respondent's acquiescence in the organizing activities of
its foreman, Chinzi; (d) Respondent's permission to Chinzi
to use its bulletin board to announce an organizational
meeting; (e) Respondent's permission to Chinzi to solicit
United Tire authorizations on company time; (f) Lee's
donation of blank cards to Chinzi in aid of his solicitation
of United Tire authorizations; (g) Respondent's revocation
of its promise to reinstate Stewart after Stewart broke up
Chinzi's meeting; (h) Respondent's grant of leave to Chinzi
and Trujillo to take United Tire authorizations to the
Board office on company time; (i) the discharge of Stewart
for soliciting Teamsters authorizations, contrasted with the
encouragement of United Tire solicitations by Chinzi; (i)
Lee's public announcement prior to the Board election that
"the Teamsters Union is not needed" with the implication
that United Tire would be welcome; (k) the statement of
LEBOE TIRE & RUBBER CO.
Foreman Chinzi in soliciting United Tire authorizations
that Respondent had agreed to meet the demands of
United Tire.
Teamsters Objection 4 should be sustained.
3. Teamsters did not, on April 24, 1972, nor on any
other date represent an uncoerced majority of Respon-
dent's employees in any unit appropriate for bargaining.
The appropriate unit is:
All production and maintenance employees and truck-
drivers employed by Respondent , including retail
salesmen at the Stanton store; but excluding all other
employees , office clerical employees , professional
employees , guards and supervisors as defined in the
Act.'
The parties stipulated that as of April 24, 1972, prior to
the discharge of Stewart, there were 39 named employees
in the unit (37 in Glendale and 2 in Stanton). The General
Counsel would include and Respondent would exclude the
name of Chinzi. I have found that Chinzi was on April 24 a
supervisor within the meaning of the Act and is therefore
excluded from the bargaining unit. The Respondent would
include and the General Counsel would exclude the name
of Daley. I have found that Daley was on April 24 a
supervisor within the meaning of the Act and is therefore
excluded from the bargaining unit. The Respondent would
include and the General Counsel would exclude the name
of Ed Strange. Mr. Strange was hired as a stockman and
supplemental truckdriver on April 14, 1972. He worked
Friday, April 14, and Monday, April 17. He did not report
for work after April 17 and was dropped from the payroll
on April 27. I find that Strange quit on April 17 and was
not part of the bargaining unit on April 24, 1972. I find
that as of April 24, 1972, there were 39 employees in the
appropriate unit.
There were received in evidence 20 Teamsters authoriza-
tion cards. One of these was signed by Chinzi. Teamsters,
at best, represented only 19 employees in a unit of 39
employees, or less than a majority. Of the 20 signers of
Teamsters cards, 3 were personally escorted to Stewart by
Chinzi, 4 were directed by Chinzi to see Stewart in the
warehouse and Chinzi was present when the signatures of 4
others were secured by Stewart. The active participation of
Foreman Chinzi in the solicitation of these 11 signatures
negatives the inference that signing was a voluntary act
and destroys the value of the cards as evidence of
employee intent. The 8 remaining cards, presumptively
valid, represent less than 30 percent of the 39 employees in
the appropriate unit.2
4. The interrogation of Chinzi by Lee in March 1972,
and Lee's instruction to Chinzi to let him know what was
happening, if anything, did not violate the Section 7 rights
of employees, since Chinzi was not an "employee" within
the meaning of the Act, and Chinzi did not report to Lee
on the union activities of his subordinates. Florida Builders,
Incorporated, 111 NLRB 786, 787.
1 This is the unit alleged in the complaint and admitted in the answer. It
is the same unit which the Regional Director found appropriate in his
Decision and Direction of Election
8 The General Counsel in his brief to me achieves a Teamsters majority
by omitting from his list of employees the name of Ronald Bierer, whom he
91
5. The statement of Daley that Stewart had been
discharged for passing out union cards coerced and
restrained employees in the exercise of Section 7 rights,
since "the clear implication of the statement is that
Respondent would not hesitate to take reprisal action
against employees engaging in union activity protected by
law." Serv Air Aviation, Stallings Air Base, I1 i NLRB 689,
696.
6. Lee's statement on May 5 that Teamsters demands
would result in plant closure was not a "reasonable
prediction based on available facts but [was] a threat of
retaliation based on misrepresentation and coercion." By
this statement, Respondent violated Section 8(a)(1) of the
Act. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 618
(1969).
This statement of Lee was made within the "critical
period" under the Ideal Electric rule as interpreted and
applied by the Board in West Texas Equipment Company,
142 NLRB 1358, 1359, and is sufficient to create an
atmosphere which rendered the exercise of a free choice in
the July 12, 1972, election impossible. Teamsters Objection
3 should be sustained.
7. Lee did not, on July 12, 1972, tell Rodriguez that he
would receive no more work if he voted for Teamsters. Lee
did tell Rodriguez that he could not vote. Rodriguez
reasonably understood that this was an order from the
boss, and that the normal consequence of disobedience of
any order would be discharge. Although the variance
between the complaint and the proof is substantial, the
matter was litigated, . and Lee's offense is of sufficient
gravity to require a specific injunction against its repeti-
tion. Rodriguez was in fact an eligible voter, since he was
on authorized sick leave during the eligibility period and
was actually working on the date of election.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, as set forth above,
occurring in connection with the operations of Respondent
described above, have a close, intimate, and substantial
relation 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
It has been found that Respondent has engaged in
certain unfair labor practices. It will therefore be recom-
mended that it cease and desist therefrom and take certain
affirmative action, as set forth in the recommended Order
below, designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. LeBoe Tire and Rubber Company, doing business as
Mission Tire & Rubber Company, Respondent herein, is
an employer within the meaning of Section 2(2) of the
stipulated was to be included in the unit, by excluding Daley and Strange
and by including Chinzi. There is no basis whatsoever for the exclusion of
Bierer. Excluding Daley and Strange and including Chinzi would give
Teamsters a total of 20 authorizations in a unit of 40, again less than a
majority
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Act, engaged in commerce and
in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Teamsters Automotive Workers Local 495, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor, organization
within the meaning of Section 2(5) of the Act.
3. United Tire and Retreaders of Mission Tire is a
labor organization within the meaning of Section 2(5) of
the Act.
4. By discharging Ivory Stewart to discourage member-
ship in Teamsters Automotive Workers Local 495,
I.B.T.C.W. & H. of A. Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
5. By interfering with the formation and administration
of United Tire and Retreaders of Mission Tire, and by
contributing support to it, Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(2) of the Act.
6. By telling employees that Stewart had been dis-
charged because of his union activities, by threatening to
close the plant, and by preventing an eligible employee
from voting at an N.L.R.B. election, Respondent engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
Respondent, LeBoe Tire and Rubber Company, d/b/a
Mission Tire & Rubber Company, its officers, agents,
successors, and assigns shall:
1. Cease and desist from:
(a) Attempting to influence their employees' choice of
union representation by threats to close the plant.
(b) Making statements to employees which tend to create
the impression that other employees have been discharged
for union activity, or by otherwise stating or suggesting to
employees that union or protected concerted activities may
result in their discharge.
(c) Interfering with the conduct of any Board election by
telling employees that they should not vote.
(d) Interfering with the formation or administration of
any labor organization by permitting supervisors to act as
promoters or officers thereof, or in any other manner
contributing financial or other support thereto.
(e) Discouraging membership in or activities on behalf of
Teamsters Automotive Workers Local 495, I.B.T.C.W. &
H. of A. or any other labor organization of its employees
by discharging or refusing to reinstate or otherwise
3 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes
discriminating 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 employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Ivory Stewart immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, and make him whole for
any loss of earnings suffered as a result of the discrimina-
tion against him. 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.
(b) Preserve, and upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, personnel records and reports, timecards,
social security payment records, and all other records
necessary to analyze the amount of backpay due under the
terms of thisDecision.
(c) Withhold all recognition from any labor organization
as the representative of Respondent's employees for the
purposes of collective bargaining unless and until said
labor organization shall have been certified by the
National Labor Relations Board as the exclusive collec-
tive-bargaining representative of such employees.
(d) Post at its plant in Glendale, California, copies of the
attached notice marked "Appendix."4 Copies of said
notice, on forms provided by the Regional Director for
Region 31, after being duly signed by an authorized
representative of Respondent, shall be posted immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) 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 herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
FURTHER FINDINGS AND
RECOMMENDATION AS TO DISPOSITION OF
ISSUES IN CASES 3l-RC-2066 AND
31-RM-299
I have found that Teamsters Objections 3 and 4 are
supported by a preponderance of the evidence and
therefore recommend that the results of the election held
July 12, 1972, be set aside.
While the matter of the validity of the prior proceedings
4 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
LEBOE TIRE & RUBBER CO.
was not specifically submitted to me, the attention of the
Board is directed to the following facts, on the basis of
which I further recommend that both petitions be
dismissed:
I have found that Michael Chinzi, in April 1972, was a
supervisor within the meaning of Section 2(11) of the Act
and was not an employee within the meaning of Section
2(3) of the Act. I have also found that Teamsters "showing
of interest" to support the petition in Case 31-RC-2066
was obtained through the active participation of Chinzi.
The facts developed in this hearing may be treated by the
Board as the "administrative investigation" described in
Winn-Dixie Stores, Inc., 124 NLRB 908, and, should the
Board agree with my findings, it should dismiss the
petition. Southeastern Newspapers, Inc., 129 NLRB 311.
93
Counsel for Respondent was misled by his client when
he stated on the face of the petition in Case 31-RM-299,
on June 2, 1972, that Teamsters had requested recognition
as bargaining representative on or about May 4, 1972, that
a claim had been made by Teamsters on April 24, 1972,
and that a claim had been made by "United Tire Union"
on May 4, 1972. Lee, questioned by counsel for Respon-
dent, testified that Teamsters had never requested recogni-
tion. I have found that United Tire did not come into
existence until after May 4, 1972. I find, on this record,
that as of June 2, 1972, Respondent had not received from
any labor organization any request for recognition.
"Absent such a claim the Board [is] without jurisdiction to
proceed with its investigation under Section 9(c)(1)(B) of
the Act." Herman Lowenstein, Inc., 75 NLRB 377, 382.