Mister Fox Tire Co.

National Labor Relations Board - Board Decisions

Aug 14, 1984

271 N.L.R.B. 960 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Donald Fox d/b/a Mister Fox Tire Co. and Amalga-
mated Clothing and Textile Workers Union,
AFL-CIO-CLC. Cases 3-CA-10782 and 3-
CA- 10898
14 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 26 January 1983 Administrative Law Judge
Thomas E. Bracken issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed an answer-
ing brief to the exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions as modified below and to adopt the
recommended Order as modified.
1. The judge found that the Respondent imposed
more onerous tasks on employees Bure and Meckes
on their return to work from their unlawful termi-
nations in retaliation for their union support, and
thereby violated Section 8(a)(3) and (1) of the Act.
However, the judge also found that Bure and
Meckes were properly reinstated as of 15 February
1982, and that their backpay should be tolled as of
that date. The General Counsel contends that the
judge erred in so limiting their backpay because
Bure and Meckes were not properly reinstated as
of that date. We find merit to this exception.
The credited testimony establishes that on 15
February 1982 tire changers Bure and Meckes re-
ported to work pursuant to the Respondent's letter
offering them reinstatement to their former posi-
tions.' General Manager Karnavas told them they
were getting their jobs back, but not the same posi-
tions. They were then assigned to work in the yard
picking up tires covered with snow and ice. When
Bure protested that these assignments were not
their former positions, Fox, the Respondent's sole
owner, said to Bure, "You little punk, I am going
to throw you through a wall." Bure and Meckes
then went to the yard as instructed. They spent the
entire workday in the yard. On the morning of
their second day at work, Karnavas assigned them
to go out into the yard and cut valve stems off
I The letter offering reinstatement read as follows:
Mister Fox Tire Co. therefore believes that it is appropriate to
offer you immediate reinstatement to your former position, at the
same level of pay and benefits earlier provided you. Accordingly,
please report for work on Monday, 15 February, 1982 at 8:00 a.m.
271 NLRB No. 145
scrap tubes. These tubes were in a big pile covered
with snow and ice. Some time after 10:30 a.m. Bure
left the shop telling Fox he was going to the Labor
Board. Meckes was then assigned to changing tires
in the main building. In their prior employment,
both men had spent the vast majority of their work
hours changing tires indoors. On rare occasions
Meckes had worked in the yard, but only for an
hour at a time.
The General Counsel contends that the judge
erred in limiting the backpay of employees Bure
and Meckes to 15 February on grounds that, by
finding that the Respondent imposed more onerous
working conditions on them, they were not proper-
ly reinstated as of that date. With respect to Bure,
the General Counsel contends that Bure was never
reinstated to his former position because at the time
he left the Respondent's employ he was assigned
duties which were more onerous than those of his
former position. As to Meckes, the General Coun-
sel contends that the question of whether he was
returned to his former position was never properly
litigated and there was no evidence that he contin-
ued to change tires or otherwise performed his
former job. We agree that neither Bure nor Meckes
was properly reinstated 15 February.
As noted above, Bure's former job as a tire
changer required that he spend 95 percent of his
time inside the shop changing tires and only 5 per-
cent on other work. On 15 and 16 February 1982
the Employer assigned Bure to the job of unload-
ing tires outdoors in below freezing weather or
cutting valve stems from frozen tires. The judge
found that by these assignments the Respondent
unlawfully imposed more onerous working condi-
tions on Bure. That finding of necessity precludes a
finding of proper reinstatement for Bure on 15 or
16 February 1982. Moreover, the evidence clearly
demonstrates that Bure was not reinstated to his
former or substantially equivalent position. While
the letter offering reinstatement proposed "immedi-
ate reinstatement to [his] former position" the
record clearly indicates that this did not occur. In-
stead, on both 15 and 16 February Bure was as-
signed tasks substantially dissimilar to those he pre-
viously performed. In fact, there was no evidence
that the Respondent had ever previously assigned
Bure the tasks that he was then asked to perform.
Accordingly, for all of the above reasons, we find
that Bure was never properly reinstated to his
former position and that his backpay has not been
tolled.
Similarly, the record establishes that Meckes, like
Bure, was not properly reinstated 15 February both
because of the unlawful imposition of onerous
working conditions on him and because he was not
960
MISTER FOX TIRE CO.
reinstated to his former position of changing tires.
Although he had worked in the yard on two occa-
sions for brief periods before his unlawful dis-
charge, his primary job had always been changing
tires indoors. However, unlike Bure, Meckes was
assigned to his former tire-changing position in the
main building some time after 10:30 a.m. on 16
February 1982. Accordingly, we find that the
Meckes was properly reinstated to his former tire
changing position some time after 10:30 a.m. on 16
February 1982, and that his backpay was tolled as
of then.
2. We agree with the judge's determination that
employee Esterbrook was in fact reinstated to sub-
stantially equivalent work. In the face of uncontra-
dicted testimony that performing other work, in-
cluding work in the yard, was not unusual for tire
changers, particularly in February and when work
was slow, and Esterbrook's own admission that he
too had performed other work, we find merit in
the judge's conclusion that Esterbrook's spending
only 5 minutes at the Respondent's facility, without
actually beginning any work, was not sufficient
time to determine that the Respondent did not and
would not reinstate Esterbrook to his former posi-
tion.
Further, we agree with the judge's finding that
employee Watkins' arrest did not violate Section
8(a)(3) of the Act. Contrary to our dissenting col-
league, we defer to the judge's factual finding that
Watkins was not singled out by the Respondent's
general manager, Karnavas on 15 February. We
also agree with the judge's determination that Wat-
kins' threat to Karnavas could not be regarded
lightly and that the Respondent therefore estab-
lished that it would have had Watkins arrested
even in the absence of any protected activity. 2
AMENDED REMEDY
Having found that the Respondent engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and that it take certain
affirmative action to effectuate the policies of the
Act.
We shall order that the Respondent, having dis-
criminatorily discharged employees J. C. Watkins,
Nicholas Broncato Jr., George Eberle, Jeffrey
2 Member Hunter notes that the first amendments to the U.S. Constitu-
tion guarantees the right to seek redress from the courts, and that no vio-
lation of the Act arises from the exercise of this constitutional right
unless the exercise is both unlawfully motivated and is without merit. Bill
Johnson's Restaurants v. NLRB, 103 S.Ct. 2161 (1983). As found by the
judge, employee Watkins threatened the Respondent's general manager
Karnavas with bodily harm and smeared grease on his face. As also
found by the judge, Watkins was "a powerful figure of a man" and a
Eberle, Ernest Esterbrook, and Shawn Meckes and
having reinstated Watkins, Broncato Jr., George
Eberle, Jeffrey Eberle, and Esterbrook as of 15
February 1982 and Meckes as of 16 February 1982,
make them whole for any loss of earnings and
other benefits, computed on a quarterly basis from
the date of discharge to the date of reinstatement,
less any net interim earnings, in accordance with F.
W. Woolworth Co., 90 NLRB 289 (1950), plus inter-
est as computed in Florida Steel Corp., 231 NLRB
651 (1977). 3 We shall further order that the Re-
spondent, having discriminatorily discharged David
Bure, offer immediate reinstatement to him and
make him whole for any loss of earnings he suf-
fered as as a result of his discharge by the Re-
spondent on 28 November 1981 until such time as
he is reinstated by the Respondent or obtains other
substantially equivalent employment.
We shall further order that the Respondent cease
and desist from infringing in any other manner on
rights guaranteed employees by Section 7 of the
Act in view of the widespread misconduct which
demonstrated a general disregard for employees'
fundamental rights. See Hickmott Foods, 242 NLRB
1357 (1979).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Donald Fox d/b/a Mister Fox Tire Co.,
Buffalo, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 2(a).
"(a) Make J. C. Watkins, Nicholas Broncato Jr.,
George Eberle, Jeffrey Eberle, Ernest Esterbrook,
and Shawn Meckes whole for their lost earnings in
the manner set forth in the Amended Remedy."
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs.
"(b) Offer David Bure immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or
privileges previously enjoyed, and make him whole
for any loss of earnings and other benefits suffered
as a result of the discrimination against him in the
manner set forth in the Amended Remedy section
of this decision."
3. Substitute the attached notice for that of the
administrative law judge.
threat of force could not be lightly regarded. in these circumstances,
Member Hunter would find that the Respondent's prosecution of Watkins
was not baseless and for this reason cannot be found to violate the Act.
s See generally Isis Plumbing Co., 138 NLRB 716 (1962).
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER ZIMMERMAN, dissenting in part.
I join in all of my colleagues' findings except
their adoption of the administrative law judge's dis-
missal of the allegations that employee Ernest Es-
terbrook was never properly reinstated, and that
the Respondent's arrest and discharge of employee
J. C. Watkins violated Section 8(a)(3) and (1) of
the Act.
The facts with respect to the Esterbrook inci-
dents are simply stated. Pursuant to the Respond-
ent's offer of reinstatement, Esterbrook returned to
work on 22 February 1982, at which time he was
told by General Manager Karnavas to go to work
in the yard and help load tires. Esterbrook protest-
ed, asserting that the company letter stated that he
was to be put to work in his former position and
that he was a tire changer. Karnavas told him that
he did not care what the letter said, Esterbrook
would work wherever he wanted him to go. Ester-
brook said he was not being treated fairly, punched
out, and left. Esterbrook stated that he had been at
the shop about 5 minutes.
On the basis of the brevity of Esterbrook's pres-
ence at the shop, the judge concluded that the
General Counsel had failed to establish that he had
been subjected to more onerous working condi-
tions. Noting that the Respondent sometimes as-
signed employees to different jobs for short peri-
ods, he concluded that there was insufficient evi-
dence to determine that the Respondent's assign-
ment imposed more onerous working conditions on
Esterbrook. However, the determination that more
onerous working conditions were not imposed does
not warrant the finding that Esterbrook was prop-
erly reinstated on 22 February. When Esterbrook
complained that he was not being assigned to his
former position as promised in the letter offering
reinstatement, Karnavas said that he did not care
what the letter said and that Esterbrook would
work wherever the Respondent wanted him to
work. He then assigned Esterbrook to work out-
doors in harsh winter conditions unloading trailers,
a position he had not previously held with the Re-
spondent. Karnavas' words and actions made it
clear that the Respondent was not going to honor
its letter offering reinstatement to Esterbrook's
former position. Contrary to the majority, 5 min-
utes on the job was quite sufficient to determine
that the Respondent did not, and did not intend to,
reinstate Esterbrook to his former position. I would
therefore find that Esterbrook was not reinstated
on 22 February and that his backpay has not been
tolled.
As to the arrest of employee J. C. Watkins, the
judge found, and I agree, that the General Counsel
made out a prima facie case which supported the
inference that his union support was the motivating
factor causing the Respondent to have him arrested
on 15 February, the date of his return to work
after the Respondent's unlawful discharge of him
on 25 November 1981. However, the judge further
found, applying Wright Line, 251 NLRB 1083
(1980), that the Respondent sustained its evidentia-
ry burden by demonstrating that it would have had
Watkins arrested even in the absence of his union
activity. The General Counsel contends that the
judge erred in applying Wright Line, supra, to this
case and that the case should have been analyzed
as a violation of Section 8(a)(1) of the Act. In the
alternative, he argues that the Respondent failed to
meet its burden under Wright Line. For the reasons
set forth below, I find, contrary to my colleagues,
that the Respondent's arrest of Watkins violated
Section 8(a)(3) and (1) of the Act. I further find
that Watkins was not reinstated on 15 February
and that his backpay should not be tolled.
On 15 February Watkins, on returning to work,
was instructed by General Manager Karnavas to
fill out a timecard. When told that Watkins was
unable to fill it out (Watkins was, as Karnavas
knew, illiterate), Karnavas told Watkins to go
home if he could not fill out the card. However,
Karnavas later filled out the card and assigned
Watkins to his old stall changing tires.
At approximatley 11 a.m. that day, Karnavas
came over to the general area where Watkins was
working and began using profanity and yelling that
the tires should be changed faster. Watkins stated
in his pretrial affidavit that Karnavas directed his
remarks to all the employees who were changing
tires in the bay. On direct examination, he testified
that Karnavas started yelling at "just him" to
"[L]et's go" and that he, Watkins, was "tying
things up." Watkins told Karnavas that he was
changing tires as fast as he could, and that he could
only do one car at a time. Karnavas walked away
but then returned. At this point Karnavas shook his
finger, which had grease on it, in Watkins' face,
touching his nose, and told him to go home. In
return Watkins put grease on Karnavas' face and
told him, "You don't leave me alone, I'll break my
foot in your ass." Karnavas then ran into his office.
Shortly thereafter several policemen arrived and
arrested Watkins, after searching him for a knife.
Karnavas told the police that Watkins had pulled a
knife on him.' Watkins denied the allegation. Wat-
kins was arrested and charged with harassment.
When he returned to work the next day, he was
told he was no longer employed. Watkins was sub-
sequently tried on the charge of harassment, con-
' The record and accompanying briefs do not reveal whether a knife
was in fact found.
962
MISTER FOX TIRE CO.
victed, and fined $150. At the time of the hearing
in the instant case, Watkins' appeal of the convic-
tion was pending.
Joseph DeBergalis Sr., a police officer, testified
that, when he complained to Karnavas about the
condition of some tires he brought from the Re-
spondent, Karnavas told him it was discriminatee
Jeff Eberle's fault, that he could not fire Eberle be-
cause of the Union, and that he wanted DeBergalis
to arrest Eberle for damaging the tires. The officer
explained that no arrest could be made as this was
a civil matter. DeBergalis learned later that the
damage was not caused by poor workmanship.
Based on the above evidence, I would find that
the General Counsel made out a prima facie case
that Watkins' union support was a motivating
factor in the Respondent's causing him to be arrest-
ed, and that, contrary to the judge's finding, the
Respondent did not rebut it.2
The evidence shows that the Respondent consid-
ered police arrest to be a way of retaliating against
employees it could not otherwise discipline because
of their union support. While the incident on 15
February may have begun with Karnavas' yelling
at employees that they were not changing tires fast
enough, Watkins was the only employee who
spoke up, telling Karnavas to "go back up front
and leave us alone. We are working as fast as we
can." At this point Karnavas clearly singled out
Watkins; for, although Karnavas began to walk
away, he returned, stuck his finger on Watkins'
nose, and said, "I'll talk to you any I want to." Un-
doubtedly, Karnavas was annoyed at this union ad-
herent who had already incurred the Respondent's
displeasure by his organizing activities and was
now attempting to defend himself and the other
employees against Karnavas' profane verbal attack
on them. Sticking his finger on Watkins' nose and
telling him he would talk to the employees any
way he wanted was a highly provocative act by
Karnavas. And it produced the desired result. Wat-
kins put grease on Karnavas' face and threatened
to kick him if Karnavas did not leave him alone,
thus giving the Respondent the opening it sought
for the use of police arrest. This view of the events
is supported by the evidence that the Respondent
2 The judge relied on the testimony of Watkins as set forth in his affi-
davit that, on the afternoon of the discharge, Karnavas was shouting at
all the employees in the bay to change tires faster, not just Watkins
Noting that there was evidence that Karnavas constantly yelled at his
employees, the judge concluded that Karnavas had not for any reason
singled out Watkins on the morning of 15 February. While acknowledg-
ing that Karnavas did in fact touch Watkins on the nose and Watkins re-
taliated by putting grease on Karnavas' face, the judge further observed
harbored such union animus that it discharged
seven employees, including Watkins, shortly after
they began soliciting support for the Union; unlaw-
fully imposed more onerous working conditions on
two of the discriminatees when they returned to
work; threatened bodily harm on one of the two as
well; and attempted to cause the arrest of another
discriminatee for the stated reason that the Re-
spondent could not do anything to him because he
was in the Union.
Against this background, I cannot find that the
arrest of Watkins on 15 February was simply the
result of a legitimate business need to protect su-
pervisors from potential harm. Watkins was a
known union adherent of whom the Respondent
had once already unlawfully attempted to rid itself.
On the morning of Watkins' return to work, he
again proved himself a thorn in the Respondent's
side by protesting the Respondent's abusive verbal
attack on the employees for not working faster.
This attack was on all the employees and Watkins
spoke up on behalf of all the employees as well as
himself. This protected action, in addition to Wat-
kins' past union activity, inspired the Respondent's
attempt to get rid of him through use of the police.
That the Respondent was successful at provoking
Watkins into making a threat does not insulate the
Respondent's conduct in this matter. Nor does it
establish that the Respondent would have caused
Watkins' arrest even in the absence of his protected
activity. There is ample evidence that loud, profane
screaming and threats in the work area were a
common occurrence. In such a setting it is beyond
belief that the Respondent would have called the
police over an employee's threat to kick a supervi-
sor's "ass "3 had the Respondent not had some
other reason to rid itself of the employee. In these
circumstances, I find that the Respondent violated
Section 8(a)(3) and (1) of the Act by causing the
arrest of Watkins on 15 February. It follows from
the unlawful arrest and the subsequent discharge
that Watkins was not at any time reinstated by the
Respondent and that the backpay in connection
with his 27 November 1981 discriminatory dis-
charge was not tolled on 15 February 1982.
that Watkins' threat could not be regarded lightly as Watkins was a large
man. He found that the Respondent therefore had a legitimate business
reason to order the arrest of Watkins and that this defeated the General
Counsel's case.
s I note in this regard that the Respondent itself was not adverse to
threatening physical violence, as evidenced by Fox's threat to throw em-
ployee Bure through a wall.
963
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the' Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for supporting Amalgamat-
ed Clothing and Textile Workers Union, AFL-
CIO-CLC, or any other union.
WE WILL NOT threaten you with physical harm
because of your support of the Union.
WE WILL NOT threaten you with discharge for
assisting the Union or selecting it as your collec-
tive-bargaining representative.
WE WILL NOT impose more onerous and rigor-
ous terms and conditions of employment on you
because you supported the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make whole J. C. Watkins, Nicholas
Broncato Jr., George Eberle, Jeffrey Eberle, and
Ernest Esterbrook for any loss of earnings and
other benefits resulting from their discharges on 27
and 28 November 1981, until their reinstatement 15
February 1982, less any net interim earnings, plus
interest.
WE WILL make whole Shawn Meckes for any
loss of earnings and other benefits resulting from
his discharge 28 November 1981, until his reinstate-
ment 16 February 1982, less any net interim earn-
ings, plus interest.
WE WILL offer David Bure immediate and full
reinstatement to his former job or, if his job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed, and make
him whole for any loss of earnings and other bene-
fits resulting from his discharge 28 November 1981
until his reinstatement, less any interim earnings,
plus interest.
WE WILL expunge from our files any reference
to the discharge of J. C. Watkins, 27 November
1981 and the discharges of David Bure, Nicholas
Broncato Jr., George Eberle, Jeffrey Eberle,
Ernest Esterbrook, and Shawn Meckes 28 Novem-
ber 1981 and WE WILL notify them that this has
been done and that evidence of these unlawful dis-
charges will not be used as a basis for future per-
sonnel actions against them.
DONALD FOX D/B/A MISTER Fox
TIRE Co.
DECISION
STATEMENT OF THE CASE
THOMAS E. BRACKEN, Administrative Law Judge.
These cases were tried at Buffalo, New York, September
1, 2, and 3, 1982. The original charge in Case 3-CA-
10782 was filed by the Union, December 1, 1981,1
(amended December 16 and January 19, 1982) and the
original charge in Case 3-CA-10898 was filed by the
Union on February 22, 1982 (amended March 18, 1982).
The original complaint was issued on January 21, 1982,
and the amended consolidated complaint was issued
April 5, 1982.
In substance the complaint alleges that Respondent has
violated Section 8(a)(1) and (3) of the National Labor
Relations Act. Respondent has answered admitting some
facts but denying that it has committed any unfair labor
practices.
These cases involve the issues of whether Respondent:
(a) Created an impression of surveillance of union ac-
tivities among its employees.
(b) Threatened physical harm to an employee because
of that employee's union and/or concerted activity.
(c) Impliedly threatened unspecified reprisals if the
employees selected the Union as their collective-bargain-
ing representative.
(d) Threatened employees with discharge because they
assisted the Union or selected it as their collective-bar-
gaining representative.
(e) Discharged employees for joining, supporting, or
assisting the Union or engaging in concerted activities.
(f) Imposed more onerous terms of employment on
certain employees by assigning them less agreeable and
more arduous work.
(g) Subjected an employee to verbal harassment and
caused him to be arrested because he joined, supported,
or assisted the Union, or engaged in concerted activities.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Compa-
ny, I make the following
I All dates are in 1981 unless otherwise indicated.
964
MISTER FOX TIRE CO.
FINDINGS OF FACT
1. JURISDICTION
Respondent Donald Fox, an individual proprietor,
doing business under the trade name of Mister Fox Tire
Co. at its William Street facility in Buffalo, New York, is
engaged in the retail sale of new and used tires and is
also engaged in the automotive repair business. During
the past year Respondent sold and distributed products
valued in excess of $500,000 and received goods valued
in excess of $50,000 from States of the United States out-
side the State of New York. The Company admits and I
find that it is an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
I11. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The main building of Respondent faces on William
Street, and contains in its front portion, an office, cus-
tomer service area, and customer waiting area, all of
which are contiguous to each other.2 It also contains an
area with eight bays, which is the main area used by the
tire changers to change tires.
In back of the main building is a warehouse where me-
chanical repairs are performed on cars, as well as some
tire changing. There is also a yard used for the storage
of used tires and other related items, as well as for the
loading and unloading of trucks.
Fox, the sole owner of the Company, testified that "on
a normal day" his business would employ 25 persons.
Initially Fox testified "that there are no set jobs" and
"no man has a permanent position." Subsequently he tes-
tified that there were about 10 to 12 tire changers, 3 me-
chanics whose jobs were "strictly mechanical," I vulcan-
izer, and 3 to 4 yardmen. The Company also employed
two statutory supervisors, Albert Karnavas and Terry
Scalice, and several salesmen.
General Manager Karnavas, while testifying vigorous-
ly that all employees were used wherever needed, admit-
ted that he had employees whose primary reponsibility
was the job of tire changer, and that he had two or three
employees whose "regular" job was that of a yardman,
and one employee who was a vulcanizer. Yardmen
loaded outgoing trucks, unloaded incoming trucks,
stocked, and sorted tires and tubes, and kept their area
clean.
The seven alleged discriminatees in the instant case
were described by Karnavas as having the following pri-
mary jobs:
2 On the last day of the hearing, I requested that the counsel for the
General Counsel and counsel for Respondent go to Respondent's building
and jointly measure various distances in the area, and submit a joint ex-
hibit containing these dimensions. Jt. Exh. I was subsequently received
into evidence, and sets forth these measurements.
Nicholas Broncato-car tire changer
David L. Bure-truck and car tire changer
.George J. Eberle-tire changer
Jeffrey Eberle-car and truck tire changer
Ernest Esterbrook-car tire changer
Shawn Meckes-car tire changer
J.C. Watkins-truck tire changer
Karnavas further testified that the Company had a
busy season from the end of September to mid-Decem-
ber, when its employees would be removing the regular
tires of customers, and replacing them with snow tires
for the coming winter. Fox testified that the flow of
business was good all year and exceptionally good in
November.
B. Credibility
Throughout this case there were testimonial conflicts
in the sharpest manner between the testimony of the
General Counsel's witnesses and Respondent's witnesses,
and in a few instances were difficult to resolve. The
former employee witnesses presented by the General
Counsel, with one exception, impressed me as sincere,
honest, blunt, minimally educated, gas station trained tire
changers, telling the truth as best they could recollect it,
and letting the chips fall where they would. While these
employees had an intense dislike for Respondent's gener-
al manager Albert Karnavas, I do not find that it inter-
fered with the truthfulness of their testimony. George
Eberle was the exception, with a poor memory and gen-
eral uncertainty, and I do not find him to be a credible
witness.
James Croom Jr., a former employee, although not
discharged on November 28, testified in a candid, une-
motional, honest, and persuasive manner, and I credit his
testimony. The fact that he admitted that he had been
found guilty of possession of stolen property does not
alter in any manner my finding as to his credibility. It is
also to be noted that on the day of the discharges, No-
vember 28, Respondent allowed him to work, even
though he was late. Joseph DeBergalis Sr., a veteran of-
ficer of the Buffalo Police Department, was an impres-
sive and completely credible witness.
Respondent's witnesses, with the exception of Antho-
ny Scalice and Sol B. Schwartz, did not impress me as
witnesses in whose testimony I could have confidence as
to their accuracy or reliability. Rather, I received the
strong impression that they were advocates, artfully
trying to furnish answers that helped their cause, rather
than trying to state the facts as they actually remem-
bered them. Karnavas was a particularly evasive, garru-
lous, argumentative, and contradictory witness with a
poor memory for dates and events. An example is Karna-
vas answer when asked what was the variation of the
number of yardmen during the year:
A. A lot of people, in the wintertime, like out in
the yard, they said it was too cold and they didn't
like the snow and weather and that, and some of
them, some of them, too many variations, too; they
didn't know what they were doing out there. They
were trying to make like they knew, but you had to
965
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
know what you are doing, the holes and cuts and
breaks in the tires and that.
Another example was his testimony on September 3,
when he was asked on cross-examination if he had heard
Fox's testimony, Fox having testified at length on the
previous day. To this question, he replied, "I didn't pay
no attention to what Mr, Fox was testifying to." This
statement by the faithful general manager, who worked 7
days a week for Fox, is incredible, particularly when the
General Counsel stated on the record, without contradic-
tion, while Fox was testifying, that Karnavas on two oc-
casions signaled answers to Fox.
Fox was an evasive, contradictory witness. An exam-
ple is his testimony that he had too many duties to get
involved in employee relations. Yet he testified initially
that on Saturday morning, November 28, when his em-
ployees had not arrived for work, he told Karnavas that
"when they come in, to send them home; let's make a
clean sweep, get new men." On cross-examination he tes-
tified that he told Karnavas to use his own discretion.
Scalice was a sincere, straightforward witness and I
generally credit his testimony. I also found that Sol B.
Schwartz, the firm's accountant, was an honest and cred-
ible witness, but his testimony was irrelevant.
C. Union Activity
In mid-October, Jeffrey Eberle 3 injured a finger at
work. Employees Bure, Jeff and George Eberle, Ester-
brook, Broncato, Watkins, Meckes, James Croom, and
Gene Zuliani were not satisfied as to the way it was han-
dled, and on November 16 began discussing the idea of
securing a union to represent them. Esterbrook contacted
Union Agent John Harrison and arranged a meeting for
the employees with union officials for the following
Monday at Broncato's house.
On the evening of November 23, all of the employees
named above, except J.C. Watkins,4 met at Broncato's
apartment with Harrison and another representative of
the Union. Here, the employees signed union authoriza-
tion cards and planned their strategy to achieve union
recognition. The employees present were also given un-
signed union cards, and were to secure the signatures of
Respondent's other employees during the rest of that
week and give the signed cards to Jeff Eberle. Then, on
the following Monday, November 30, the union agent
was to take the signed cards to Fox, and demand recog-
nition.
During the balance of that week, Respondent dis-
charged the seven alleged discriminatees. In its answer to
the complaint, Respondent admitted that it discharged
Watkins about November 25 (Wednesday); that it dis-
charged George Eberle, Bure, and Broncato about No-
vember 27 (Friday); and that it discharged Jeff Eberle,
Meckes, and Esterbrook about November 28 (Saturday).
3 Jeffrey Eberle will be referred to as Jeff Eberle, and George Joseph
Eberle, his brother, as George Eberle.
I Watkins was asked by Broncato to attend the meeting, but he did not
attend as he was a stranger to Buffalo, having moved there from Mobile,
Alabama.
1. The General Counsel's evidence as to employer
knowledge of union activity
It is axiomatic that an essential ingredient in finding an
8(a)(3) violation is that the employer had knowledge that
the employees were engaging in union activity prior to
the discharge of the alleged discriminatees. Fox testified
that the first knowledge he had occurred on December
3, when he received a telephone call from a person who
identified himself as a union representative. According to
Karnavas, the first he knew of union acitivity was when
Fox informed him of this call. The General Counsel un-
dertook to establish such knowledge by testimony con-
cerning several incidents, as well as by the small plant
doctrine.
a. The intercom
Watkins testified that in the area where he worked he
saw an "intercom" fastened on the side of the wall, right
behind a spin balance machine. He described it as a mike
and a speaker, one piece of equipment. Some time before
the union meeting of November 23 Bure had shown him
how to plug it into the wall, push a button, and he
would then hear voices from the office. He had never
heard any music come out of it, although he had heard
music come out of other speakers around the building,
and he never heard it used to call any person.
Watkins testified that on the morning following the
union meeting, which he had been unable to attend, he
turned the intercom on for the first time. He testified
that "I don't know why I fooled with it right then, just
resting, nothing to do." At this time he heard Fox and
Karnavas talking and that "Fox told Albert that there
wasn't going to be no union here as long as there was a
Fox Tire." Karvavas then told Fox "he'd take care of
it."
Bure testified that he had shown the wall-mounted
intercom to Watkins, and had shown him how to operate
it. Previously, in October, Jeff Eberle had shown him
how to plug it in, press one of approximately five but-
tons, and then be able to hear sounds from the office.
Bure used it about six times, and no music came out of
this speaker, although music came out of other speakers
throughout the building. He had seen a transmitter for
the intercom through which music was piped into the
building, but admitted that he had never seen a transmit-
ter for the intercom in Watkins' area.
Jeff Eberle testified that the intercom in Watkins'
work area looked approximately 15 years old and was
set up like one you would buy at Sears. He had listened
over it five or six times, and heard the voices of Fox,
Karnavas, and Ciliento, although it was not used by the
Company for any business purpose. He had shown it to
Bure and told Meckes about it. When asked if he ever
determined where the other end of the intercom was lo-
cated, he replied that it was behind the counter that was
near the main entrance of the building. He further testi-
fied that it was visible from outside the counter, as it was
on one of the walls. When asked if there was more than
one intercom unit around this area he testified that
"There was a new one that they have now and that little
one, the older one, I guess."
966
MISTER FOX TIRE CO.
On direct examination Fox denied that the Company
had an intercom, but testified that it has a radio which
normally played music constantly. This music was piped
throughout the building to speakers which were in all
the bays. If Fox wanted to make an announcement over
the speakers, he testified that "you have to take the mike
off the hook, press down on it, hold the lever, whatever
you call it, down and speak into it." When asked if he
could identify the speaker that Watkins testified about he
replied:
A. No, not really; I don't have any other speak-
ers.
Q. Do you know if there is a speaker out there in
the shop?
A. Maybe an old one laying there that we don't
use, has been there since 1965 in that building,
about sixteen eighteen years; and if there is an old
one hanging up there, if there was, I have no
knowledge.
On cross-examination Fox testified that music was
piped over an intercom system by means of a radio that
is turned on in the office in the morning. Sound from the
radio goes out to approximately eight speakers in the
building, which he identified as one in the waiting room,
one in the the back room, four in the center room, and
one or two in the outside room. When asked if this was a
system he installed he replied that it was.
Based on the weight of the evidence and particularly
Watkins' demeanor, I credit Watkins', Bure's, and Jeff
Eberle's testimony that there was an old intercom
mounted on the wall behind the spin balance machine in
the bay area where Watkins worked. For the same
reason I also credit Watkins' testimony that on the day
after the union meeting he heard Fox tell Karnavas that
there would be no union at Fox Tire, and that he heard
the general manager tell Fox that he would take care of
it. Fox himself admitted that there "may be" an old
speaker out in the shop, that could have been there since
he moved in, apparently in about 1965.
I therefore find that this incident establishes that Re-
spondent had knowledge of the union meeting held on
the prior evening. It also establishes the union animus of
the Employer.
b. Croom's testimony
Croom testified that on the Tuesday after the union
meeting he was changing tires in the warehouse when he
overheard Karnavas say that he knew there had been a
union meeting over at Broncato's house on Monday
night. Croom did not see the person that the general
manager was talking to, as Karnavas was talking to
someone in the doorway.
Croom also testified to an incident that occurred on
the Saturday after Thanksgiving. Croom and Bure regu-
larly came into work together as they lived next door to
each other. On this date, November 28, Croom and Bure
missed the first bus, and had to wait for a second bus.
Bure telephoned "Fox" and informed Respondent that
he and Croom would be late. Croom reported to the
plant about 8:20 to 8:30 a.m., punched his timecard, and
went to work, without any comment from the Company.
About 11 a.m., Croom was stacking tires on a landing
about 10 feet above floor level, when he heard Karnavas
talking to an employee he knew as Big Man or Leon-
ard.5 When asked what was said, Croom testified as fol-
lows: "Albert was telling him that, you know, what we
do when this starts happening, we start getting rid of
them. Once they see people being dropped off, the
people start doing."
Croom also testified to an incident that occurred that
afternoon, as he was leaning on the cigarette machine,
waiting for his ride home. At this time Croom heard Fox
talk to an employee whom Croom knew as "Shorty"6
right in Croom's presence. Croom testified that "Fox
told Shorty not to come in for a couple of days because
there might be picketing outside because, you know, he
fired all these people on Saturday; didn't want no trou-
ble, and didn't want nobody coming in to work." Fox
said nothing to Croom about not coming in on Monday.
Croom also testified to a conversation he had with
Karnavas on the following day, Sunday, November 29.
Croom had previously secured permission from Fox to
bring his uncle's truck in on that Sunday, so as to mount
tires on it. When asked by the General Counsel what he
and the general manager had said to each other, Croom
testified:
A. I was there, spin balancing the last tire or
maybe the second to last one, he come up and start-
ed talking about Dave Bure about "You got nothing
to do with them guys" and "He hangs around with
Nick Broncato, so he has got to go."
Q. Did he say the reason he was laid off was be-
cause of work habits?
A. He came around and he says, I laid the rest of
the people off because the customers' complaints, of
tires being loose, customers' complaints of tires
going flat, customers coming back there with tires
being flat.
Q. What did you say when he told you that?
A. It just didn't make sense to me.
Q. What did you say?
A. I don't recollect.
Croom admitted that in that conversation with Karna-
vas, the general manager did not indicate that the reason
for the termination of the employees on Saturday had
anything to do with the Union.
Fox and Karnavas denied generally that these conver-
sations took place.
I credit Croom's testimony as to all four incidents, but
I only rely on the incident of November 24 as proving
company knowledge of union activity. In this instance,
Croom heard Karnavas tell someone that he knew there
had been a union meeting at Broncato's house on
Monday night. The three other incidents testified to by
Croom were too ambiguous to rely on to prove knowl-
edge by Respondent of union activity.
5 Karnavas identified this employee to be Leon Martin.
6 Fox identified Shorty as Milton Harris.
967
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Meckes
The third witness the General Counsel relied on to
prove employer knowledge was Meckes. Meckes testi-
fied that on either Tuesday or Wednesday after the
union meeting, he was by the coffee machine in the wait-
ing room when he heard Fox talking with Karnavas and
Terry Scalice, the sales manager. Meckes placed them
behind the desk7 in the customer service area. He testi-
fied that he was on a direct line from where these three
persons were standing, but that they could not see him,
as there was a wall between them. When asked what he
heard, he testified as follows:
He was calling Nick Broncato a "Scumbag," you
know-, stuff like that, and then he said anyone
who, he goes, "He is done" and he doesn't want
anyone who associates with him around, and the
exact words, I think "I want to get rid of anyone
who associates with that scumbag."
Meckes estimated that he was 15 to 16 feet from Fox
and Albert when they were talking behind the counter,
in what he described as a normal tone. On rebuttal
Meckes testified that on the evening following his testi-
mony, he had gone to Respondent's building and meas-
ured the distance from the counter to the coffee ma-
chine. He had used a 20-foot tape as he looked through
the building's front glass window as he made his meas-
urements. Meckes testified that the distance was a maxi-
mum of 20 feet.
Fox testified that he measured with a tape the distance
from the counter to the coffee machine, and that the dis-
tance was 45 feet. Joint Exhibit 1 shows that the distance
from the counter to the wall that abuts the coffee ma-
chine is 34 feet 2 inches. It also shows that the distance
from the wall behind the counter to the wall abutting the
coffee machine was 44 feet 4 inches. I find Meckes' testi-
mony too unreliable in this instance, and I do not credit
him.
d. Smallplant doctrine
During the course of the hearing the General Counsel
presented certain evidence to prove that the facts of this
case merit the application of the small plant doctrine.
The Board has long held that absent direct knowledge as
to Respondent's knowledge of union activity, such
knowledge may be inferred from circumstantial evi-
dence, including the size of the plant, the timing of the
discharges and the pretextuous reasons asserted for the
discharge. 8
Respondent's total work force at most consisted of
only 25 employees, all of whom worked in one contigu-
ous area, where they were closely supervised by Fox and
Karnavas. Karnavas, by his own account, often worked
shoulder-to-shoulder with the men, as he testified he
spent 40 to 50 percent of his time changing tires.
I Apparently Meckes was referring to the counter when he said desk,
as the counter was constantly referred to by other witnesses.
8 Florida Cities Water Co., 247 NLRB 755 (1980); Wiese Plow Welding
Co., 123 NLRB 616 (1959).
Esterbrook, who worked in the first bay, testified that
on Tuesday or Wednesday followig the union meeting
he heard George Eberle, Jeff Eberle, and Meckes in that
area discussing the union meeting on two occasions. He
then told these employees that it would be best if they
kept their mouths shut, and all agreed not to "broadcast"
anything about the meeting. George Eberle corroborated
Esterbrook's testimony. On direct examination, Meckes
testified that an employee named Mark Baldwin brought
up the subject of the union meeting twice in the vicinity
of Karnavas. On cross-examination, when shown his affi-
davit to the Board, Meckes admitted that when he re-
ported Baldwin's remarks to the Board agent, he had not
stated that Karnavas was in the area.
The smallness of the plant, the conversations of the
employees in their work area about the union meeting,
the constant close supervision, and the timing of the dis-
charges, makes it likely that the Employer observed the
union activity, and I so find. Bill Johnson's Restaurant,
249 NLRB 155 (1979), enfd. 713 F.2d 1446 (9th Cir.
1982).
D. The Discharges
1. J. C. Watkins
Watkins testified that on Tuesday afternoon, Novem-
ber 24, he was in the Company's bathroom, and could
hear Fox and Karnavas talking as they stood behind the
counter. He could not hear what they were talking about
while he was in the bathroom, but when he came out he
heard Fox say to the general manager, "What are you
going to do with J.C?" Karnavas replied to Fox that he
would take care of it.
Watkins did not work on November 25 or 26 as
Wednesday was his regular day off, and Thursday was
Thanksgiving. On Friday he reported to work at 7:30
a.m. Karnavas, who was standing at the cash register,
told Watkins that work was slow and he would call him
if he needed him. The general manager then told him to
leave his phone number, which Watkins did, and left.
About a week later Watkins went back to the facility
and talked to Karnavas about his job. Karnavas told him
that work was slow, but he would call him when it
snowed. When Watkins told the general manager it was
snowing now and he needed the work, Karnavas merely
said, "I will call you. I got the phone number." During
this conversation Karnavas told Watkins that he was a
little slow in changing tires. Watkins replied that Karna-
vas had formerly told him he was a good tire changer,
and that he liked the way he changed tires. Karnavas
then replied that Watkins was too slow and walked
away.
Karnavas testified that he laid Watkins off on Friday,
November 27, because business was starting to slow
down, "at the time it was just dead," and he had no
work to offer him. Since Watkins was the last man hired,
he was laid off. Karnavas admitted that he told Watkins
that if the Respondent got busy, or if it snowed, he
would call Watkins. Karnavas also admitted that Watkins
came back about a week later and asked if there was any
jobs open, and he told him there was not. Karnavas also
968
MISTER FOX TIRE CO.
admitted that he had no problem with Watkins' work,
and that Watkins was his main truck tire changer.
Karnavas testified that it was decided to lay Watkins
off about a week before November 24, as "it started
slowing down at that time." When asked why he waited
until November 27 to tell Watkins that he was laid off,
Karnavas vaguely argued that he did not know if he had
been in the shop on November 24.
2. George Eberle and Broncato
George Eberle, who lived with Nick Broncato and
Gene Zuliani, testified that he was scheduled to work at
8:30 a.m. on Friday, November 27. The three employees
reported about 10 minutes late, and were told to see Kar-
navas. The general manager proceeded to tell George
Eberle and Zuliani to leave as they were through. When
Eberle protested that they were only 10 minutes late,
Karnavas told them to see Fox. George Eberle's testimo-
ny is that he and Broncato went to see Fox, and when
given their paychecks, left the building. Later that day
George Eberle went back for his personal belongings
and was told by Karnavas that he was laid off. He fur-
ther testified that he did not report for work on the fol-
lowing day, November 28.
Neither Zuliani nor Broncato testified, and George
Eberle's testimony is not clear as to whether Zuliani was
discharged at the same time they were.
Karnavas originally testified that on Saturday, Novem-
ber 28, George Eberle, Broncato, and Zuliani came in to-
gether and were late. He proceeded to tell Broncato and
George Eberle that they were fired, but before he could
say anything to Zuliani, Zuliani said he quit and left. On
the following Monday, Zuliani came in and talked to
Fox, and Fox reinstated him that day. When asked on
cross-examination if it were not true that George Eberle
and Zuliani had come in on Friday with Broncato and
that George Eberle had been discharged on Friday, and
not on Saturday, Karnavas testified as follows:
A. No, sir, they worked Friday, because I got the
payroll.
Q. Don't give me an explanation. You say it
wasn't Friday?
A. It was not Friday. Not to my knowledge.
There is a possibility it could have been, but not to
my knowledge, at this time.
Q. You acknowledge, though, it is possible that it
was Friday that you discharged them?
A. It is possible, but I don't think so; I am not
sure.
Fox testified that on November 28 he arrived at the
shop between 7:30 and 7:45 a.m. At that time the only
persons present were Karnavas, Scalice, and salesman
Bernardo Ciliento. Fox asked his general manager how
many men had come in to work and was advised that
none had. Around 8 a.m., three employees trickled in,
out of the 10 or 11 who usually work on Saturday, their
busiest day.9 When it was going on 9 a.m. his friend
I Fox did not identify these employees.
Nicholas R. Lucci, the owner of Bobby's Restaurant,
stopped by. Lucci was there to get a food order for
lunch that Fox provided his employees on Saturdays.
Fox asked Lucci to see if he could "round up my men."
Lucci returned about 15 minutes later and told Fox that
he had blown his horn at Broncato's house, and received
no response. He then "went up to the house and banged
on the door," whereupon Broncato came "downstairs"
and told Lucci, "We are all f- up."' ° Following
Lucci's statement Fox testified "I told my manager,
Albert Karnavas, to do whatever he had to do, when
they came in, to send them home; let's make a clean
slate, get new man."
Fox's testimony as to what date the seven alleged dis-
criminatees were discharged was more vague than that
of Karnavas. On direct examination he stated that all
seven were discharged on Saturday. However, on cross-
examination, he testified that he believed Karnavas dis-
charged two employees on Friday, three on Saturday,
and "on the following, Monday, or something, one or
two."
The matter of resolving which day George Eberle and
Broncato were discharged is a difficult one, as it involves
mostly unreliable witnesses on both sides. George Eberle
testified they were discharged on a Friday, November
27. Karnavas and Fox were indecisive and not sure
whether the discharges occurred on Friday or Saturday.
Lucci was sure it occurred on Saturday. I do not credit
Lucci's testimony because of his demeanor, his obvious
bias for Respondent, due to his business relationship, and
the weight of the evidence. However, I do credit the tes-
timony of Scalice, and find that they were discharged on
Saturday, November 28. Scalice remembered that on
that Saturday morning he heard Karnavas "telling every-
body that they were laid off, or fired." He specifically
remembered Broncato coming in that morning, and
thought George Eberle came with him. The testimony of
Jeff Eberle also supports this date as he told Fox that
morning that it seemed to be a coincidence that "every-
body" was being fired at the same time.
3. David Bure, Jeffrey Eberle, Ernie Esterbrook,
and Shawn Meckes
Bure corroborated Croom's testimony set forth herein
in section C, I, b, above, that he and Croom missed their
regular bus on Saturday morning, and that he then tele-
phoned Karnavas telling him they would be 10 to 15
minutes late. Karnavas, without stating any reason, then
told Bure he was laid off, but to send Croom in. About
10 Lucci testified after Fox asked him to "round up my boys," he went
to Broncato's apartment, the employee regarded by Lucci as "the
leader." When he blew his car's horn about 8:45 a.m., and rang the door
bell, he received no answer. He then went up and knocked on the door.
When Broncato answered the knock, Lucci asked him why he had not
come to work and Broncato replied, "Luch, we have been out all night
partying. We are all f- up." Lucci further testified that he could see
three men lying on the floor, one of whom he identified as George
Eberle. Lucci then went back to the shop and told Fox that he was out
of luck, that "the boys aren't coming to work. They looked like they
were all drunk." Fox replied to this by stating, "I'm cleaning house right
now." Lucci did not take his usual order for 60 or 70 sandwiches, as
"there was nobody working," but just brought lunches for Fox and sev-
eral associates.
969
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10:30 that morning Bure went to the shop and saw Fox
and Service Manager Scalice, all of whom were behind
the counter. Bure asked Fox several times why he was
discharged, and received no answer. Scalice then told
Bure that he would tell him in accounting, and the two
then entered that office. Scalice then informed Bure he
was being fired "because of loose lug nuts and customer
complaints of swearing." When Bure asked if anyone had
ever pointed him out as leaving lug nuts off, or swearing,
the sales manager replied, "No, but it was in your gener-
al area." Bure denied that he had ever left loose lug nuts
on wheels, or that any customer ever complained that he
did, or had any Fox manager ever told him he had done
so. In like manner he also denied the swearing allegation.
Bure also testified that when he came into the shop
that morning he saw three employees in the main shop
bay area changing tires. These employees had not
worked at Fox prior to that day. He also saw Croom
working on a truck.
Karnavas testified that he did not recall if Bure called
him on Saturday, or if Bure came to the shop, and did
not recall what day he terminated Bure, although it
might have been on Monday. When he did terminate
Bure he told him it was "because of so many mess-ups."
Scalice testified that on the Saturday after Thanksgiv-
ing, Fox told him to take Bure in the office and tell him
why he had been fired. Scalice testified that he knew the
employees were fired that day because Fox and Karna-
vas had told him, between 8 and 10 a.m. that day, that
the employees were to be discharged because of custom-
er complaints. The service manager admitted that he told
Bure his discharge was because of lug nuts and wheels
coming off, and that it was strictly because of criticism
from customers. He also told Bure that the customer
complaints were directed at all employees who installed
tires, and not individually at Bure. Scalice admitted that
he did not tell Bure anything about being terminated be-
cause he was late for work that morning.
Jeff Eberle testified that he reported to work on Satur-
day 5 to 10 minutes before starting time. As he walked
in, Karnavas was at the front counter and told him that
he was fired. When Jeff Eberle asked what were the
grounds, the general manager said customer complaints.
When Jeff Eberle pressed him as to what customer and
when, Karnavas informed Jeff Eberle that he did not
have to tell him anything. As Jeff Eberle was walking to
his car, he saw Fox and approached him, telling him that
it seemed to be a coincidence that everybody was getting
fired at the same time. When Fox told Eberle he was not
being fired, Jeff Eberle informed him that Karnavas had
told him he was fired. Fox then reversed himself, saying
"that's right, your name was on the list too."
Karnavas, as usual, was extremely vague, testifying
that he did not recall if Jeff Eberle arrived on November
28 or not, and the best he could recall was, he did not.
However, he discharged him on November 28 or 30, and
to Jeff Eberle's questions as to why he was discharged,
replied:
I told him there was too many, there was all one
clique, and Nick and all of them, Nick and all, one
clique that was on the other side, and "All you
guys are messing up, leaving lug nuts loose, messing
customers' cars up, and you are not working as a
team." I says, "I try to get people to work as a
team. You work against each other."
Esterbrook testified that he reported for work on Sat-
urday morning at approximately 10 minutes before 8 a.m.
He walked through the main door, heading for the time-
clock, when Karnavas told him not to bother to punch
in, as he was through. When Esterbrook asked why, the
general manager told him that there were complaints
that he was not fixing tires properly. When he asked
who complained, Karnavas answered that the complaints
were not only against him, but against "the whole crew
out there."
According to Karnavas, Esterbrook was not at work
on November 28 at 8 a.m. However, he testified that he
terminated Esterbrook, but he did not tell Esterbrook
that he was terminated, as Fox and Scalice did so. When
Esterbrook wanted an explanation of why he was let go,
Scalice took Esterbrook in the inner office and explained
this to him. "
Meckes testified that he reported for work November
28 at approximately 20 minutes before 8 a.m. He was
having a cup of coffee when Karnavas told him not to
bother to punch in, as he was "done." When Meckes
asked for a reason, the general manager told him that it
was because of complaints from customers about loose
lug nuts. When Meckes defended himself by stating that
he had worked there for a year and never had one com-
plaint, Karnavas replied that the complaints were not
just about him, but "almost everyone back there."
Meckes testified that no management personnel ever told
him that customers had complained about his work, nor
had anyone from management ever told him that he left
loose lug nuts on tires.
Karnavas testified at first, that Meckes did not show
up on Saturday, and then admitted that he really did not
remember if he saw Meckes that day or not. However,
he admitted that he told Meckes he was discharged, but
did not remember anything about the conversation, and
did not remember if he discharged him on Saturday or
Monday.
I credit Jeff Eberle's, Esterbrook's, and Meckes' testi-
mony that they arrived on time on the morning of No-
vember 28, and that Bure called in stating he and Croom
would be late. I do not credit Scalice's statement that by
8 a.m. nobody showed, although I have credited other
testimony by Scalice. However, as stated by Judge
Leonard Hand, "It is no reason for refusing to accept ev-
erything that a witness says, because you do not believe
all of it; nothing is more common in all kinds of judicial
decisions than to believe some and not all." NLRB v.
Universal Camera Corp., 179 F.2d 749, 754 (1950). Karna-
vas himself testified that three tire changers had shown
up by 8 a.m. and Fox admitted that around 8 a.m. three
employees had come in.
1' As set forth previously, Scalice testified that he took Bure in the
office and told him why he was discharged. I credit Scalice's and Bure's
testimony that it was Bure who received the explanation, not Esterbrook.
970
MISTER FOX TIRE CO.
4. Discussion and conclusions
In applying the teachings of Wright Line, 251 NLRB
1083 (1980), I find that General Counsel has sustained his
burden of establishing a prima facie case that the em-
ployees' union activities motivated Respondent's decision
to discharge them.
Respondent knew that the employees had a union
meeting on the evening of November 23 at Broncato's
house, as Karnavas made this very statement in the shop
on the following day. Fox himself clearly showed his
strong union animus when on the same day he told Kar-
navas that there would never be a union at Fox Tire.
The record is uncontested that the discharge occurred
in the middle of Respondent's busy season, and in fact, as
described by Fox, when business was exceptionally good.
It is also evident that these employees were competent
tire changers, as three of the seven discriminatees re-
ceived raises in their hourly rate of pay in the month
prior to their discharge, 12 and a fourth employee,
George Eberle, received a 25-cent raise in the fall. Since
neither Broncato nor Zuliani testified, the record does
not show whether they received a raise or not. Watkins,
the seventh discriminatee, had only been hired in Octo-
ber and the record is silent as to any pay raise to him.
However, Karnavas himself testified that Watkins was "a
good truck tire man."
Yet, despite it being Respondent's busy season, these
experienced, competent tire changers were terminated
without any warning or notice. I therefore conclude that
a motivating factor in Respondent's decision to discharge
these seven employees was its anger over their support
for the Union.
I turn now to the reasons offered by Respondent for
the discharges of these employees, to rebut the General
Counsel's case.
a. Watkins
Respondent's position is that business was starting to
slow down, and it simply laid Watkins off because he
was the most junior man. I do not find that Respondent's
stated reason for Watkins' layoff stands scrutiny. Al-
though Karnavas testified that in November business was
slow, in fact, that it was "just dead," so that he had to
lay off Watkins, Respondent produced absolutely no
records to support this contention. Certainly this at least
16-year old company, which retained an outside account-
ing firm, would have various financial records, such as
annual statements, profit-and-loss statements, and tax
records to substantiate the oral statements of Karnavas
that business was slow, in fact dead. The failure of Re-
spondent to submit such documentary evidence causes
me to believe that its financial records would not have
supported its claim that business was slow.'3 It is also
12 Jeff Eberle, $1, Esterbrook, 25 cents; and Meckes, S1.25.
i3 If evidence, such as business records, is within the party's particular
knowledge and control, and such evidence would strengthen the party's
case if offered into evidence, that party is expected to introduce such evi-
dence. The failure of the party to introduce such evidence raises an ad-
verse inference. Capreccios Restaurant, 249 NLRB 685 (1980); Cahop Dair-
ies. Inc., 204 NLRB 257 (1973).
noteworthy, as testified to by Fox, that Karnavas never
told him that business was slow in November. If business
had been slow, it is inconceivable that Karnavas would
not have reported this to Fox.
Finally, I find it incredible that the general manager
decided to lay Watkins off a week before November 24,
and did not do so until November 27, a period of ap-
proximately 10 days. Watkins was the same capable
truck tire changer after November 24, as he was before
that date. The only difference was that in the week
before November 24, Respondent did not know that the
employees were engaging in union activity. Having
learned in the week of November 24 of such activity,
Respondent determined to get rid of the "clique" in the
main shop.
Respondent's insistence that Watkins was only laid off
for lack of work is further undermined by its refusal to
hire him back when he returned to the shop in the week
following his layoff. It was snowing at the time, a condi-
tion which causes Respondent to be at its busiest peak in
changing tires, and six other tire changers had been dis-
charged in the past few days. Yet, Respondent refused to
rehire this good truck tire changer, who, according to
the general manager, had only been laid off for lack of
work.
b. Bure, Jeff Eberle, Esterbrook, and Meckes
Respondent in its brief argues that the above-named
four employees were discharged because they failed to
report at their scheduled times, and therefore there was a
sufficient justification for their discharge. I do not find
that these employees were discharged for not reporting
on time, and I further find that at no time were they
given this reason for their discharge.
The record is clear that on the day these employees
were discharged they were told by Karnavas and Scalice
that it was because of customer complaints about loose
lug nuts, and for not fixing tires properly. The record is
also clear that Karnavas did not tell any of these em-
ployees that he was being fired because he was late for
work. Respondent sought to prove that there had been
specific customer complaints through the general manag-
er. Karnavas testified to some specific complaints of cus-
tomers directed at Bure, the two Eberles, and Meckes,
which he contended occurred in the fall or in Novem-
ber. I do not credit Karnavas because he was such an ab-
solutely incredible witness and because of Respondent's
failure to produce records to support these charges. Ca-
preccios Restaurant, Calip Dairies, Inc., supra. The general
manager related no customer complaints as to Broncato
or Esterbrook.
Fox's testimony was also explicit that it was custom-
er's complaints that led to his decision to let them "all"
go. He testified that the complaints started 6 to 8 months
prior to November. He admitted he was unable to pin-
point who did the work complained of, and that he
could not relate any specific incident involving anyone
of the discharged employees. It is to be noted that four
of the discharged employees, George Eberle, Bure, Es-
terbrook, and Watkins were hired at the most 3 months
prior to November. Therefore, they were not even on
971
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the payroll when the customer complaints alluded to by
Fox started, and were not on the payroll for at least half
of the period in which Fox contends he received com-
plaints from customers. Thus, when the record as to cus-
tomer complaints is reviewed, it is disclosed to be too
weak a reed for Respondent to rely on.
During the hearing Fox testified as to an additional
reason as to why he fired the six employees. He testified
that the straw that broke the camel's back in his decision
to discharge these employees was that they did not show
up on November 28. I do not credit this testimony as I
find it to be an afterthought. Not once in his 2 hours' of
conversation with Scalice that morning did he say any-
thing about the employees being discharged because they
were late.
I have already credited Jeff Eberle's, Esterbrook's, and
Meckes' testimony that they arrived on time on the
morning of November 28. I have also credited Bure's
testimony that he called Karnavas in the morning and
told him that he and Croom would be a little late. The
fact that the general manager instructed Croom to come
in to work, even though he would be late, is discussed in
section c. below.' 4
c. George Eberle and Broncato
As to George Eberle and Broncato's discharges, Re-
spondent also contends that it discharged them because
they arrived late for work. However, neither the presi-
dent nor the general manager knew whether their dis-
charges took place on Friday, November 27, or on Sat-
urday, November 28. I have found that they were dis-
charged on Saturday, and undoubtedly they were late, as
George Eberle admitted they were about 10 minutes late.
However, it was no unusual thing for Respondent's tire
changers to be late, as Karnavas admitted that the em-
ployees usually "show after eight or at least by nine
o'clock."
It is also to be noted that Zuliani was with George
Eberle and Broncato, and was late the same amount of
time that they were late. Yet, on the following Monday,
Fox allowed him to go to work. Of equal significance is
the fact that another late comer that morning, Croom,
was not discharged, but was allowed to work. The fact
that Zuliani and Croom were permitted to work certain-
ly belies Fox's instructions to Karnavas to make a clean
sweep of all who were late, and get new men.
The reason Croom and Zuliani were allowed to work
while the other seven employees were discharged can be
explained by examining the nine employees' respective
work locations. Croom and Zuliani worked in the ware-
house whereas the seven discharged employees all
worked in the main shop. It was the employees in the
main shop that Respondent had centered on as the
"clique" that was trying to secure union representation
for its employees.
14 I recognize that Croom was present at the union meeting on No-
vember 21 at Broncato's house, and yet he was not discharged. However,
it is well settled that an employer need not discriminate against all union
supporters before the General Counsel can establish discriminatory intent.
Challenge-Cook Bros. of Ohio, 153 NLRB 92, 99 (1965), enfd. in relevant
part 374 F.2d 147 (6th Cir. 1967); Ballard Motors, 179 NLRB 300, 307 fn.
26 (1969); Virginia Electric A Power Co., 260 NLRB 408 (1982).
From the foregoing I conclude that Respondent's
stated reasons for the discharges of the seven employees
were pretexts, and that Respondent sought to disguise
the true motive. When the asserted reasons are not rea-
sonable as I have so found herein, then that fact is evi-
dence that the true motive for the discharges is an un-
lawful one, which Respondent seeks to disguise. See
Shattuck Denn Mining Corp. (Iron King Branch) v.
NLRB, 362 F.2d 466 (9th Cir. 1966); First National Bank
of Pueblo, 240 NLRB 184 (1979).
Finding that the alleged reasons for the seven employ-
ees' discharges were false and considering the timing and
lack of any warning, I infer that the true motive for ter-
minating these seven employees was because they were
seeking union representation, which Respondent sought
to nip in the bud. By eliminating this clique of employ-
ees, Respondent sought to excise the union supporters,
and to teach a lesson to the other employees as to the
power of the Company over their jobs. Accordingly, I
conclude that Respondent, by terminating J. C. Watkins
on November 27, 1981, and by terminating David Bure,
Jeffrey Eberle, Ernest Esterbrook, Shawn Meckes,
George J. Eberle, and Nicholas Broncato Jr. on Novem-
ber 28, 1981, violated Section 8(a)(3) of the Act. Webb's
Industrial Plant Service, 260 NLRB 933 (1982); Brooks
Cameras, 250 NLRB 820 (1980), enfd. as modified 691
F.2d 912 (9th Cir. 1982).
E. The Return to Work and the Imposition of More
Onerous Conditions of Employment
1. February 15, 1982
On advice of counsel, Respondent mailed letters dated
February 5, 1982, to each of the discharged employees
concerning an offer of return to work. While strongly
denying any illegal conduct on its part, it stated that a
Board hearing on the charges would not be held for
months. The letter further stated:
Mister Fox Tire Co. therefore believes that it is ap-
propriate to offer you immediate reinstatement to
your former position, at the same level of pay and
benefits earlier provided you. Accordingly, please
report for work on Monday, February 15, 1982 at
8:00 o'clock a.m. i 5
Promptly on the morning of February 15, Bure,
George and Jeff Eberle, Meckes, and Watkins reported
for work. Karnavas and Fox were present. Bure testified
that Karnavas told the employees they were getting their
jobs back, but not the same positions. The general man-
ager then told Bure that he and Meckes would be in the
yard, that the two Eberles would work in the other
building, and Watkins for the truckdrivers. Bure then
protested that these assignments were not what the letter
had said, as Respondent knew these were not the same
jobs as they previously had.
At this point Fox broke in and said to Bure, "You
little punk, I am going to throw you through a wall."
1' The letter was received by six of the seven employees. Broncato's
was unclaimed.
972
MISTER FOX TIRE CO.
Karnavas then gave the employees timecards to fill out,
and Fox called Bure and Meckes "sewer rats." Karnavas
then told Bure and Meckes to go to the yard. There,
Karnavas told them to pick up tires, which were covered
with snow and ice, load them in a truck, and take them
to the vulcanizing room. After delivering one load the
vulcanizer told Bure that these tires were wet and he
could not work on wet tires. Upon telling Karnavas
what the vulcanizer said, the general manager told them
to go to a trailer and take dry tires out for the vulcaniz-
er. To get to the tires, the employees had to climb over a
snow pile. Both employees did as Karnavas directed.
After they filled the vulcanizer's storage room with tires,
Karnavas sent them to sort tires in a box car, which they
did until about 1:30 p.m. At this time Karnavas took
Bure, Meckes, and a yardman to another building to load
tires until quitting time.
On the following morning, a cold and snowy day,
without explanation, Karnavas told the two employees to
go out in the yard, and cut valve stems off of scrap
tubes. These tubes were in a big pile covered with snow
and ice. Bure used the hunting knife he had in his truck
to cut the valve stems out of the tubes. Some time after
10:30 a.m. Bure left the premises, telling Fox he was
going to the Labor Board.
Bure testified without contradiction that in his prior
employment with Respondent he spent 95 percent of his
time changing tires in the shop, and 5 percent on other
work. He had never before been told to load tires in a
truck for the vulcanizing room, and he had never been
asked to cut valve stems off of tires.
Meckes corroborated Bure's testimony. He also re-
called that after Bure protested that they were not being
returned to their regular job, Fox told him to shut up or
"I'll throw you through the wall." After Bure left on the
second morning Meckes was assigned to changing tires
in the main building. About 3 weeks to a month later all
the scrap tubes were loaded in a trailer and shipped out.
He estimated that there were 100,000 tubes in the pile he
and Bure worked on, and that they had cut out 100 to
150 valve stems.
Meckes ffurther testified that from the time he was
hired in January 1981 he had been asked to load tires out
in the yard on two occasions, each of which took I hour.
On one occasion he had asked to work in the yard as it
was a nice summer day. Several times Karnavas had told
him to work in the yard and each time he had said he
would not, as that was not what he was hired for. On
only one occasion Karnavas told him it was the yard or
go home. However, Fox had stepped in and directed
that he stay in the bays. This testimony was uncontra-
dicted.
Karnavas testified that on the morning of February 15,
the Company already had 10 to 12 tire changers, and
therefore he could not put these returning employees in
their same job assignment. Fox told him to do what he
had to do with them, and it was obvious to Karnavas
that the owner was not happy to see them coming back
to work. Karnavas admitted that when the five employ-
ees reported, he told them, "I have to take you people
back, I have no room on your present jobs. I am going
to make room for you to work." Karnavas further admit-
ted that he assigned Bure and Meckes to the yard to load
and unload trucks all day. He did not testify as to the
Tuesday assignment of cutting the valve stems out of the
tubes.
Fox testified that he was standing by the counter when
the five employees reported on February 15, and that
Karnavas spoke to them about their duties. He denied
generally that he threatened anybody, and in particular
denied that he told Bure he would throw him through
the wall. As to the scrap tubes, Fox testified that he had
an order from a Mississippi mill for scrap tubes which re-
quired that the valve stems be removed. Another order
came in for the tubes without removing the valve stems,
so he shipped all the scrap tubes to the Canadian custom-
er.
I find that the record sustains the allegation in the
complaint that Respondent imposed more onerous and
rigorous terms and conditions of employment on Bure
and Meckes. The primary job of all the discharged em-
ployees was that of a tire changer, work which occupied
95 percent of their time. It is self-evident that performing
this semiskilled job in a shop building was less onerous
than working out in the open yard on snow covered
ground loading tires into trucks, or sorting tires in box
cars, or cutting valve stems out of used tubes out in bad
weather, as Bure and Meckes were required to do for a
day and a quarter.
It was Bure who had acted as spokesman on the em-
ployees' return to work, and it was Bure who protested
that they were not being returned to their regular jobs. I
find that these more onerous tasks were imposed on two
Union supporters in retaliation for their union support,
and that Respondent thereby violated Section 8(a)(3) and
(1) of the Act. Association of Apartment Owners, 255
NLRB 127 (1981); Cutting Inc., 255 NLRB 534 (1981).
As to Jeff and George Eberle, I do not find that more
onerous duties were imposed on them by assigning them
the job of straightening up tires in the warehouse. Jeff
Eberle admitted that he formerly loaded tires on trucks
about 5 percent of the time. He also admitted that when
work was slow, and it was in February, tire changers
would "work out in the yard and do other things." Jeff
Eberle worked less than I day at the job of straightening
out tires, in a closed building, and he was then assigned
to and worked as a tire changer for the rest of his em-
ployment by Respondent. As George Eberle testified, he
regularly worked more frequently in the yard than the
other employees in the main shop. His testimony does
not disclose that he considered his assignment by Karna-
vas to entail more onerous duties. Accordingly, I shall
recommend that the allegation of the complaint be dis-
missed as to the Eberle brothers.
2. February 25, 1982
Esterbrook testified that, after he received his letter
from the Company, he was ill on February 15, and so
notified Karnavas. He was told to come in on the follow-
ing Monday, and he did so. After he reported, he went
to the bay in which he had formerly worked. Here he
saw an old employee he had formerly worked with,
Mack, and two new employees. Karnavas then told him
973
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to go to the yard and help load. Esterbrook protested,
stating that the company letter had stated he would be
put in his former position, and that he had been a tire
changer. Karnavas then told him he did not care what
the letter said, that Esterbrook would work wherever he
wanted him to go. Esterbrook then told them he was not
being treated fairly and punched out and left. He estimat-
ed that he had been there 5 minutes. He further testified
that he never worked in the yards loading trailers. He
admitted that when business was slow he had gone to
the yard to get used tubes, which he would bring inside.
He would then pump these tubes up and check them to
see if they were saleable.
Karnavas admitted that he had assigned Esterbrook to
the yard, as he had no openings in the bay area. I do not
find that the General Counsel has proven this allegation
of the complaint as to Esterbrook, as the 5 minutes Es-
terbrook spent there that morning was not a reasonable
amount of time in which to make such a determination.
Meckes had been returned to his job of tire changer after
I and a quarter days of other work. Jeff Eberle had been
returned after seven-eighths of a day. By leaving so pre-
cipitately, there is no telling whether Esterbrook would
have been required to load for an hour, a half day, or
any other amount of time, including no loading at all.
Accordingly, this allegation fails for want of proof, and I
shall recommend that it be dismissed.
F. The Harassment and Arrest of J. C. Watkins
Subparagraph d of VII herein alleges that on February
15, 1982, Respondent subjected Watkins to verbal harass-
ment and caused him to be arrested by the Buffalo Police
Department.
Watkins testified that when he reported for work on
February 15 Karnavas gave him a timecard to fill out.
When he told Karnavas that he could not fill it out, Kar-
navas then told him to go home if he could not do so.' 6
Karnavas then filled it out and assigned Watkins to his
old stall. After sorting rims that morning, he started
changing tires.
On direct testimony Watkins testified that around 11
a.m., with the place full of customers, Karnavas came
over, and with much profanity, started yelling at "just
me" to "Let's go," and that he was tying things up. Wat-
kins told the general manager he was changing tires as
fast as he could, and that he could only do one car at a
time. After further conversation, Karnavas started to
walk away but then returned. Watkins then described the
ensuing events as follows:
A. This is when he shook his finger in my face.
Q. What did he do?
A. Touch my nose. He told me to go home.
When he touch me on my nose, that is what made
me angry.
Q. When he touched you, did he have grease on
his hands?
A. Yes, he had grease on his hands.
Q. What did you do?
1' Watkins was illiterate and could only write his name. Karnavas
knew this from his prior employment.
A. I put grease on his face.
Q. What did you do?
A. I told him "You don't leave me alone, I'll
break my foot in your ass", that is what I said.
Q. What did he do at that time?
A. He ran in the office.
Watkins continued working until 4 or 5 minutes later
when the policemen arrived and arrested him, after
searching him for a knife. Karnavas had told the police
that Watkins had pulled a knife on him, and Watkins
protested that he did not have a knife. Watkins was
taken by the police to a Buffalo police station where he
was charged with harassment. When he returned to
work the next morning he was told that he was no
longer employed by Respondent. Watkins further testi-
fied that he did not hit or push Karnavas.
On cross-examination Watkins denied that Karnavas
was yelling at everybody. Watkins then admitted that on
March 18, 1982, he had given an affidavit to the Board,
which in part read as follows:
At about 12:45 p.m., Karnavas came over to me and
started a conversation. Karnavas was cursing and
hollering. He told me and the other employees to
get to work and get the tires done. Karnavas was
yelling a total of 15 minutes. I said "Why don't you
go back up front and leave us alone. We are work-
ing as fast as we can." I turned away. Karnavas
continued to yell and curse. He came up behind me
and I turned to him. He put his finger on my nose
and said "I'll talk to you anyway I want to." I said
"If you don't leave me alone, I'll break my foot off
on your rump." Karnavas then left.
When pressed on just who Karnavas was yelling at,
Watkins stated that he was yelling at "mostly me."
Watkins was subsequently tried on the charge of har-
assment,' 7 and he was convicted and fined $150. At the
time of the hearing the case was on appeal. Watkins did
not file any criminal charge against Karnavas for touch-
ing his nose.
Watkins' testimony is uncontradicted as neither Karna-
vas nor Fox testified as to this incident.
Jospeh DeBergalis Sr., a veteran officer on the Buffalo
Police Department, was called to testify by the General
Counsel. In the spring of 1982, DeBergalis had gone to
Respondent's shop to purchase some tires and have them
mounted on rims for a 1953 tractor he owned. When De-
Bergalis went to pick up his tires and rims he noticed
that as Jeff Eberle rolled them out to him they were not
sealed and he immediately complained. After Eberle told
him that his rims were "shot," the officer went to Karna-
vas and asked what happened to his rims. Karnavas told
him it was the employee's fault and called Jeff Eberle to
17 The General Counsel in his brief states that Watkins was found
guilty of violating sec. 240.25 of the New York State Penal Code which
provides that "a person is guilty of harassment when with intent to
harass, annoy or alarm another person, he strikes, shoves. kicks or other-
wise subjects him to physical contact, or attempts or threatens to do the
same.
974
MISTER FOX TIRE CO.
the front. Here the general manager and Eberle yelled
back and forth at each other, as to whose fault it was. 1S
Karnavas told DeBergalis that "Because of the Union,
we can't fire him," and kept telling the officer to arrest
him for damaging the rims. The officer tried to explain
to Karnavas and Fox that no arrest could be made as this
was a civil matter. It is the General Counsel's position,
as stated in his brief, that this incident with Officer De-
Bergalis "demonstrated that Karnavas and Fox thought
that the approach to take with employees was to have
them arrested in order to retaliate for their Union activi-
ty."
I find from the record in this case that the General
Counsel has made out a prima facie case, as set forth pre-
viously, which supports an inference that Watkins' Union
support was a motivating factor in Respondent's causing
him to be arrested.
However, I also find that Respondent has sustained its
evidentiary burden under the Wright Line causation test
of demonstrating that it would have had Watkins arrest-
ed even in the absence of his union activity. Spread
throughout the record is ample evidence that Karnavas
was a loud, profane, foul mouth screamer, who constant-
ly yelled and hollered at his employees. I have credited
Watkins' testimony, as set forth in his affidavit, that on
the afternoon involved Karnavas was hollering at all the
employees in the bay to get the tires changed faster, and
not just at Watkins. The general manager therefore had
not singled Watkins out to pick a fight. While Karnavas
did touch Watkins on his nose, Watkins did in turn
forcefully retaliate by putting grease on the general man-
ager's face, and threatened to break his foot off in his
buttocks. Watkins was a powerful figure of a man, as he
weighed 295 pounds, and a threat of force by him could
not be regarded lightly.
Thus, I find that Respondent did have a legitimate
business reason to order the arrest of Watkins. The Gen-
eral Counsel failed to carry his burden of proof and thus
I find that the complaint must be dismissed as to this al-
leged 8(a)(3) violation.
G. Interference, Restraint, and Coercion
The complaint alleges four specific incidents of viola-
tion of Section 8(a)(l). The evidence in respect thereto
will be discussed below in the order pleaded in section
VI of the complaint.
Subparagraph a. alleges: "On or about the last week of
November 1981, at its facility Respondent, acting
through Albert Karnavas, created the impression among
its employees that their union activities were under sur-
veillance." In support of this allegation is Croom's testi-
mony that on November 24 he overheard Karnavas tell
someone that he knew that there had been a union meet-
ing at Broncato's house on Monday night. Croom did
not see the person Karnavas was talking to and did not
testify that he knew the person to whom the general
manager was talking.
I8 The officer learned later that the rims were very old and had been
rusted internally when he brought them in, so that the damage was not
caused by poor workmanship.
I do not find that Karnavas' statement amounts to an
unlawful impression of surveillance. Croom did not
know if Karnavas was talking to another supervisor, a
customer, or a stranger, and nothing in the record indi-
cates that it was meant for employees' ears. Also, I fail
to see how employees would reasonably assume from
this statement that their union activities had been placed
under surveillance. Accordingly, I shall recommend that
the allegation of the complaint be dismissed.
Subparagraph b. recites: "On or about February 15,
1982, at its facility, Respondent, acting through Donald
Fox, threatened physical harm to an employee because
of that employee's Union activity and/or protected con-
certed activity." As set forth in section E above, when
the employees returned to work on February 15, Bure
was the spokesman in stating the employees' protest to
the job assignments being made by Karnavas. Although
Fox admitted he was at the counter when the employees
returned to work, he denied that he had any words for
these employees and denied that he threatened anyone. I
do not credit Fox, and I credit Bure's testimony and find
that Fox did call him a little punk, and stated he was
going to throw him through a wall, As admitted by Kar-
navas, Fox was angry about having to take the employ-
ees back to work. The owner obviously resented this
young, small 9 tire changer, that he referred to as a little
punk and a sewer rat, telling him that the Company's as-
signments were wrong. Accordingly, I find that the
threat by Fox was clearly coercive and the Company
thereby violated Section 8(a)(1) of the Act.
Subparagraph c alleges: "On or about February 25,
1982, at its facility, Respondent, acting through Donald
Fox, made an inplied threat of unspecified reprisals if the
employees choose the Union as their exclusive collec-
tive-bargaining representative." In support of this allega-
tion Meckes testified that about a week after his return
to work, another employee, Washburn, bent a rim.
Meckes described the ensuing events ns follows:
A. Well, there was a, you know, big major disas-
ter, when the rim bent. You know, it happens all
the time, accidents happen, you know, rims bend.
First Albert started yelling about it and stuff, and
then Mr. Fox came out and started talking to me
about it, like I was responsible for it. I says "Don't
blame me. I didn't do it," you know, "I had nothing
to do with the rim." He started to say, "You guys
are f- ruining me. You guys are f- ruining me."
He walked to the other side. Turned around and
"You guys are f- ruining me with this f- union
shit." He shut up right away and just walked away.
Jeff Eberle also testified vaguely about arguments over
the same bent rim, recalling that Fox came to the boys
swearing that "You guys ruin one more thing and you're
gone." Subsequently the General Counsel refreshed his
recollection by showing him his affidavit dated March
30, 1982. After reading it Eberle testified that after Fox
made his statement about "you guys are ruining me,"
19 Bure was 21 years of age, 5 feet 9 inches, and weighed 130 pounds.
Fox was 5 feet 10 inches tall and weighed 210 pounds.
975
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fox also said, "You guys think you are going to get a
union in." Fox did not deny making this statement.
Although I credit Meckes' and Jeff Eberle's testimony,
I find Fox's statement too ambiguous to constitute an im-
plied threat of reprisal if the employees chose the Union
as their bargaining representative. I shall therefore rec-
ommend that this allegation of the complaint be dis-
missed.
Subparagraph d. recites: "On or about February 25
and 26, 1982, at its facility, Respondent, acting through
Albert Karnavas, threatened that employees would be
discharged if they assisted the Union or selected it as
their collective-bargaining representative." In support of
this allegation Meckes testified that within a day of the
incident involving the bent rim, Karnavas came out yell-
ing at everyone. He was talking about customers' com-
plaints, and Meckes told him that while Karnavas was
always talking about customers' complaints he never saw
any customers complain. With that, Karnavas replied,
"You want to fool around with the Union thing," he
goes, "One slip up and you are through." This testimony
of Meckes was not contradicted, and I credit it. I find
this statement of the general manager to be clearly coer-
cive as he warned Meckes that if he kept up his interest
in the Union, and made a single error in his work, he
would be discharged. Obviously, the other side of the
coin was, if the employee would renounce the Union, he
would not be fired for making an error. I find that Kar-
navas' remark constitutes a violation of Section 8(a)(1).
CONCLUSIONS OF LAW
1. Donald Fox d/b/a Mister Fox Tire Co. is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Amalgamated Clothing and Textile Workers Union,
AFL-CIO-CLC, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By terminating J. C. Watkins on November 27,
1981, and David Bure, Nicholas Broncato Jr., George
Eberle, Jeffrey Eberle, Ernest Esterbrook, and Shawn
Meckes on November 28, 1981, because of their support
for the Union, Respondent has violated Section 8(a)(3)
and (1) of the Act.
4. By imposing more onerous conditions of employ-
ment on David Bure and Shawn Meckes on February 15
and 16, 1982, because of their support of the Union, Re-
spondent has violated Section 8(a)(3) and (1) of the Act.
5. By threatening David Bure with physical harm be-
cause of his support for the Union, Respondent inter-
ferred with, restrained, and coerced employees in the ex-
ercise of their rights guaranteed in Section 7 of the Act
in violation of Section 8(a)(1) of the Act.
6. By threatening employees with discharge, if they as-
sisted the Union, Respondent has violated Section 8(a)(1)
of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. Respondent
having discriminatorily discharged J. C. Watkins, David
Bure, Nicholas Broncato Jr., George Eberle, Jeffrey
Eberle, Ernest Esterbrook, and Shawn Meckes, and
having reinstated them as of February 15, 1982, I find it
necessary to order it to make them whole for lost earn-
ings and other benefits, computed on a quarterly basis
from date of discharge to date of reinstatement, less any
net interim earnings, in accordance with F. W. Wool-
worth, 90 NLRB 289 (1950), plus interest as computed in
Florida Steel Corp., 231 NLRB 651 (1977). See generally
Isis Plumbing Co., 138 NLRB 716 (1962). As Respondent
has engaged in such widespread misconduct as to dem-
onstrate a general disregard for the employees' funda-
mental rights, I find it necessary to issue a Board Order
requiring Respondent to cease and desist from infringing
in any other manner on rights guaranteed employees by
Section 7 of the Act. Hickmott Food, 242 NLRB 1357
(1979).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2 0
ORDER
Respondent Donald Fox d/b/a Mister Fox Tire Co.,
Buffalo, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting Amalgamated Clothing and
Textile Workers Union, AFL-CIO-CLC, or any other
union.
(b) Threatening its employees with physical harm be-
cause of their support for the Union, or any other union.
(c) Threatening its employees with discharge if they
assisted the Union or selected it as their collective-bar-
gaining representative.
(d) Imposing more onerous and rigorous terms and
conditions of employment on its employees because they
supported the Union.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Make J. C. Watkins, David Bure, Nicholas Bron-
cato Jr., George Eberle, Jeffrey Eberle, Ernest Ester-
brook, and Shawn Meckes whole for their lost earnings
in the manner set forth in the remedy.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Expunge from its files any reference to the dis-
charges of J. C. Watkins on November 27, 1982, and of
David Bure, Nicholas Broncato Jr., George Eberle, Jef-
20 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
976
MISTER FOX TIRE CO.
frey Eberle, Ernest Esterbrook, and Shawn Meckes on
November 28, 1982, and notify them in writing that this
has been done, and that evidence of such unlawful dis-
charge will not be used as a basis for future personnel
actions against them.
(d) Post at its shop in Buffalo, New York, copies of
the attached notice marked "Appendix." 21 Copies of the
notice, on forms provided by the Regional Director for
i' If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
Region 3, after being signed by Respondent's authorized
representative, shall be posted by Respondent immediate-
ly upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that the notices
are not altered, defaced, or covered by other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
977