The General Tire of Miami Beach, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1962

137 N.L.R.B. 473 (N.L.R.B. 1962)

THE GENERAL TIRE OF MIAMI BEACH, INC., ETC. 473
ing conditions and employee benefits. There have been at least two
transfers between the groups, both involving the same employee.
It is evident from the foregoing that the Voss employees not only
fall into the classifications already included within the appropriate
unit but work within, and are an integral part of, such unit. Further-
more, as a result of the operational integration of the Voss office oper-
ations with those of Gillette, it is clear that, under the existing cir-
cumsfances,..Gillette is an employer of the Voss employees whose unit
placement is in dispute. Consequently, we shall in view of the above
considerations include the Voss employees in the unit. We shall, how-
ever, make provision for the contingency that the Commission does
not approve this purchase, in which case complete control of all Voss
operations shall revert to that company and its central office may be
returned to Oklahoma City. Accordingly, in the event the Commis-
sion disapproves the purchase, the Voss employees who are to leave
Gillette's operations and return to their former status under Voss
shall no longer be part of the certified unit.
ORDER
IT IS HEREBY ORDERED that the certification issued in this proceeding
to Office Employees Internation Union, Local 45, AFL-CIO, be, and
it hereby is, clarified, subject to the condition set forth above, to include
office and clerical employees of Voss Truck Lines, Inc., at Gillette
Motor Transport, Inc., Dallas, Texas, operation.
The General Tire of Miami Beach , Inc.; The General Tire of
Miami, Inc .; M. O'Neil Properties and International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local 320. Cases Nos. 1l-CA 1454-1,12-CA-1454-93,
and .19-CA-1454-3. June 4, 1962
DECISION AND ORDER
On ,February 16, 1961, Trial Examiner Thomas A. Ricci issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondents filed exceptions to the
Intermediate Report and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
1 The Respondents filed a request for oral argument . However, as the record , excep-
tions, and briefs adequately set forth the issues and positions of the parties , the request
for oral argument is denied.
137 NLRB No. 55.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings,' conclusions, and recommendations of
the Trial Examiner.3
ORDER
The Board adopts the Recommendations of the Trial Examiner, with
a minor modification.'
2 We do not rely upon William L Bailey's own statement that he was a supervisor
Other evidence in the record discloses his supervisory status as reflected in the testimony
of Jeranimo Oliveira, Lonne F. Hesters, and Douglas Morris
3 We affirm the Trial Examiner's finding that the Charging Party is a labor organization
within the meaning of Section 2(5) of the Act, relying upon the present record, and the
principles enunciated in our recent decision in Alto Plastics Manufacturing Corporation,
136 NLRB 850
4 We delete from section 1(b) of the Recommendations and from the coriespondmg
portion of the notice the language beginning, "except to the extent" and ending, "as
modified by the Labor-Management Reporting and Disclosure Act of 1959."
Also, the following is to be inserted in the notice below the sentence beginning, "This
notice must remain posted . . ': Employees may communicate directly with the' oard's
Regional Office, Ross Building, 112 East Cass Street, Tampa, Florida. Telephone Number,
223-4623, if they have any question concerning this notice or compliance with Its
provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before Thomas A. Ricci,
the duly designated Trial Examiner , in Miami, Florida , on September 15, 16, and
17, 1960, on complaint of the General Counsel and answer by The General Tire of
Miami Beach , Inc.; The General Tire of Miami, Inc.; and M . O'Neil Properties,
herein collectively called the Company or the Respondent . The sole issue litigated
was whether the Respondent had violated Section 8(a)(1) and ( 3) of the Act.
The Respondent filed a brief with the Trial Examiner after the close of the hearing.
Upon the entire record, and from my observation of the witnesses , I make the
following: 1
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
In its answer to the complaint the Respondent denies that it is engaged in interstate
commerce within the meaning of the statute, as expressly alleged in the complaint.
The answer, however, admits the truth of all facts alleged in the complaint relative
to the commercial operations of the Respondent. Accordingly, I find that The
General Tire of Miami Beach, Inc.; The General Tire of Miami, Inc.; and M. O'Neil
Properties are Florida corporations engaged in the business of retail and wholesale
distribution of tires, gasoline, petroleum, and automotive accessories. These three
companies are, and at all times material have been, affiliated businesses with com-
mon officers, ownership, directors, and operators, and constitute a single integrated
business enterprise. The said directors and operators formulate and administer a
common labor policy for the aforenamed companies, affecting the employees of
1 After the close of the hearing the Respondent filed a motion to correct the record;
the motion relates to a number of typographical errors in the transcript of the testimony.
No opposition to the motion was made by any of the other parties, and the motion Is
hereby granted
THE GENERAL TIRE OF DMIA_MI1 BEACH, INC.; ETC. 475
said companies. The three companies constitute a single employer within the mean-
ing of Section 2(5) of the Act
During the calendar year 1959, in the course and conduct of its business opera-
tions, Respondent sold and distributed products, the gross value of which exceeded
$500,000. During the same calendar year, Respondent, in the course and conduct of
its business operations, purchased and received from points directly outside the State
of Florida goods valued in excess of $50,000
On these admitted facts I find that the Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and that if will effectuate the
policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The charges in this case were filed by International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local 320, herein called the
Union, and the pleadings raise an issue at to whether the Union is a labor organiza-
tion within the meaning of the statute. On behalf of the General Counsel, Bernard
Derow, secretary-treasurer and business agent of Local 320, testified as follows:
that "Local 320 is a labor organization dealing with employers for better working
conditions"; that it is a membership organization which negotiates collective-
bargaining agreements with employers; that it has collective-bargaining agreements
in effect now; and that its members pay dues to the Union, have regular meetings,
and elect regular officers. Derow also testified that Local 320 has a charter from
the international Brotherhood of Teamsters He also testified that he is engaged
in organizing employees on behalf of Local 320 and handles grievances for members
of the Union with their employers On the basis of this testimony, I find that the
Union is a labor organization within the meaning of Section 2(5) of the Act.2
III. THE UNFAIR LABOR PRACTICES
During April 1960 the Charging Union instituted an organizational campaign
among the employees of the Miami Beach station, one of the Company 's five auto-
mobile service and parts retail outlets in the greater Miami area . The drive culmi-
nated in a petition for a representation election filed with the Board's Regional Office
on April 28, a copy of that petition in which the Union sought to represent employ-
ees of that station was received by the Respondent on April 30, 1960, a Friday.
The Union had also claimed majority representation and invited a bargaining con-
ference in a telegram received by the Company on April 28. On that Friday eight
employees of the Miami Beach station were transferred to other locations of the
Company and the complaint in this proceeding alleges that all those transfers were
illegally motivated for the purpose of curbing the union activities of the employees
of the station as a whole. One of the employees so transferred-Oliveira-was
discharged 5 days later from his new location at Biscayne ; another employee of the
Miami Beach station-Hesters-who was not transferred , was discharged on May 6.
The complaint also alleges that these two discharges were unlawful discriminations
in employment in retaliation for prounion activities . There are also several minor
allegations of illegally coercive statements by management representatives in viola-
tion of Section 8(a) (1) of the Act. In defense , the Respondent asserts, with re-
spect to all these transfers and discharges , that they were made for a variety of
reasons , all of an economic nature, and it denies the commission of any unfair
labor practices.
As to Oliveira and Hesters the contention of the General Counsel is that the
Respondent knew each of them individually to be in favor of the Union and there-
fore pinpointed its antiunion conduct directly toward them As to the transfer of
the group of employees on April 30, the theory of the complaint seems to be that,
having learned of the general organizational activities at the Miami Beach station,
the Respondent resorted to a mass dispersal of that group to its other locations to
offset the union campaign generally, and that this economic discrimination was not
necessarily a direct retaliation in each instance against a known union adherent.
Apart from the fact there is no direct evidence of company knowledge of union
activities concerning at least some of the transferees , one of them-Teddlie-never
did anything to indicate he favored the Union , and another-William Morris-
only signed a union authorization card 3 days after his transfer
2 On November 25, 1960, the Respondent filed a motion to reopen the hearing for the
purpose of introducing evidence showing that the International Brotherhood of Teamsters
had "decided" to revoke the charter of its Local 320, the Charging Union here Over the
General Counsel's objection I granted the motion On appeal the Board reversed this
ruling on motion and canceled the scheduled reopened hearing
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the question of whether the Company discriminated against employees in viola-
tion of Section 8(a)(3), therefore, three separate issues are presented: two go to
the individual discharges of Oliveira and Hesters on May 5 and 6; the third involves,
as a single question, whether the transfer on a single day of eight employees away
from the Miami Beach station was in fact a blunderbuss measure to combat union
activities. There was no suggestion in the General Counsel's oral argument-he did
not file a brief-that any one of these transfers could or should be examined as
a single, separate illegal act apart from the other almost simultaneous transfers. In-
deed, he said "the entire set of circumstances surrounding it must be considered."
Accordingly, all the record facts in any way related to the transfers must be weighed
in deciding whether the record as a whole supports an overall inference of mass
illegal transfer.
A. Evidence relating to the transfer of eight employees
Two of the employees named in the complaint-Andre Styer and D. C. Miller-did
not appear as witnesses. The record is silent therefore as to what they were told
when they left the Miami Beach station for other locations of the Company over
the weekend starting Friday, April 30. It does appear they were transferred.
Three others-William Morris, his son, Douglas Morris, and Teddlie-were told
that day that their transfers resulted from the Respondent's belief that William
Morris and Teddhe had stolen a case of oil from the service station stock, and be-
cause the manager , Kennedy, 'deemed it embarrassing to retain the son , Douglas,
while transferring his father away as a disciplinary measure. Jerry Oliveira, the
sixth man transferred, was told by the manager that a man was urgently needed at
another location and that it was for this reason that he was being transferred that
day.3
James Harden said he was given no reason when transferred, just did what he was
told and went. There is no evidence as to what Jessie Campbell was told; he was
simply transferred, the eighth and the last man of the group to go.
As to the union activities of this entire group, the record shows that four of them-
Douglas Morris, Oliveira, Harden, and Campbell-signed cards in favor of the
Union before April 30 Miller probably did so because two employees, Campbell
and Clark, testified it was he who solicited them to sign before the transfers. Ted-
dlie` never did anything, and William Morris signed up on May 1 after the transfer;
Styer is not shown on the record to have concerned himself about the Union at all.
As to the eventual destination of these eight employees, Teddlie, Harden, and
Campbell were later returned to the Miami Beach station; Douglas Morris quit; his
father was released because of lack of work on August 1, with the statement, "I
said I had another job anyway." Oliveira was discharged a week later; and as to
Styer and Miller there is no information.
All of the foregoing facts stand uncontradicted on the record. In addition, as
stated above, there is the fact that the Company knew of the general union activi-
ties going on when the transfers were made; it was stipulated the Company received
a copy of the Union's petition for an election on April 30. The unit requested in the
petition reads as follows-
All mechanics, servicemen, attendants, and tire service employees, excluding
office clerical employees, salesmen, supervisors, and all other employees:
A final fact, clear on the record, strongly urged by the General Counsel'as-proba-
tive evidence of illegal motivation in the mass transfer, is that 4 or 5 days before
Friday, April 30, three employees-Douglas Morris, Hesters, and Sugg-went to
Kennedy, manager fo the station, to inform him that while they had signed cards
in favor of the Union, they had had a change of heart, and "wanted to tell him for
the three of us that we didn't have anything to do with the Union " The uncon-
tradicted testimony is that Kennedy thanked them for saying this and said "be
thought it was a nice gesture."
The foregoing are objective and uncontradicted facts and form part of the basis
upon which the General Counsel would ground an overall inference of antiunion
motivation for all eight transfers. The remaining suport 'for the inference so urged
are antiunion statements and adverse admissions , allegedly voiced by company
8This finding rests upon (1) the uncontradleted testimony of Manager Kennedy that
the shift manager of the Biscayne station had telephoned the day before, on the 29th, and
said a man had quit unexpectedly; (2) Oliveira' s admission that Kennedy "may" have
told him so: and (3) Oliveira's earlier affidavit saying, "I took the place of a fellow who
quit at the 56th Street Station a couple of days before I was transferred "
THE GENERAL TIRE OF MIAMI BEACH, INC., ETC. 477
agents, as .to,which the testimony at the hearing was conflicting . Some of these al-
leged statements are said to have been made by "shift managers ," persons who, ac-
cording to the General Counsel, are supervisors within the meaning of the Act, and
therefore responsible spokesmen for the Respondent , but who , according to the
Company, were no more than rank -and-file employees.
B. Are shift managers supervisors?
The Company operates out of five locations in the Miami area. The largest is
called the Biscayne station where the Company's main office is located. Here Demos,
the general manager of the Company, has his office. The next largest station is
Miami Beach, where there is Manager Kennedy and Shift Manager Bailey. The
other three stations are Coral Gables, Midtown General, and North Miami. Harris
is the shift manager at Biscayne, who supervises the other three stations-whether
there be managers, shift managers, or both-does not appear in the record. The
issue here is whether shift managers, particularly Bailey and Harris, must be deemed
supervisors. Affirmatively there is the testimony of several employees; contrary
testified Bailey, Harris, and Demos.
Douglas Morris testified that the shift manager is "in charge" of the shift at Miami
Beach, that he "gave orders"; that he could hire and fire employees-and more
precisely that Bailey had expressly told him he had this power; that he knew of no
instances when Bailey had in fact exercised the power, but that he had heard Bailey
tell employees "to pick up and get a little more on the ball."
Oliveira testified that when he applied for a job in February 1960, the station
manager, Smith (Kennedy's predecessor), told him to return the next day to see
Bailey, because it was the shift manager who did the hiring and discharging. Oliveira
returned the next day, spoke to Bailey, and Bailey hired him at $65 per week plus
commissions. He also testified Bailey was in charge of all the shifts at Miami Beach
and gave him his orders. He added that at Biscayne, where he also worked and
where Shift Manager Harris works, Harris was "like Bailey, but more so because
no general manager around apparently."
Hesters, the service employee who was involved in the transfer but was discharged
on May 6, testified that he was hired by Bailey in June 1959. Sugg, another employee
of the Miami Beach station, said that Bailey gave him his instructions and time off
when he wanted it, and added Bailey transferred employees from one shift to another.
Bailey started by saying his job is ". . . looking for tire salemen and for tire sale-
men taking the care of my orders ; putting different men in certain positions for
different lobs. . . He said Kennedy, the manager of the Miami Beach station,
does the hiring and firing, but he did not deny having hired Oliveira. He denied he
hired Hesters, but, quite inconsistently, then admitted he told both Douglas Morris
and Hesters he had authority to hire and discharge employee. Bailey's only explana-
tion of his testimony was that he "lied" to the employees.
Harris described his duties as pumping gasoline, writing orders, selling tires and
accessories , "a little bit of everything." He, too, said Demos, the general manager,
does the hiring and firing. He said he also delivers the paychecks regularly, and,
on occasion , Demos had him deliver an employee's termination check. He specified
that when Oliveira was released on May 5 from his station, Demos told him the man
was to be fired, but left it to Harris to deliver the final payments to the man. He
said he delivered the final checks, one for a whole period and one for split time, but
did not know what was in the envelope. According to him there was no conversa-
tion between them; Oliveira simply understood, with no one telling him, that he was
discharged. Harris also testified he reported certain delinquencies of Oliveira to
Demos, and concluded with saying, "On occasion I drop back to the station to catch
up on orders and odds and ends . . . that I don't get a chance to do during the day."
On this record, the highest paid rank-and-file employee below shift manager was
William Morris, who earned $75 per week plus commission. The rest of the men
are paid $50 to $65 weekly and commissions on sales. Bailey earns $90 weekly
and Harris $100, both receiving sales commissions in addition.
Demos called Bailey and Harris "shift bosses," and stated in conclusionary lan-
guage that he does all the hiring and firing, and that they cannot hire or discharge
employees, or "effectively recommend " such action . He said he visits the various
stations not daily but once or twice weekly.
I find that both Bailey and Harris are supervisors as defined in the Act. I credit
the uncontradicted testimony of Oliveira and the testimony of Hesters that Bailey di-
rectly hired each of them. Bailey admitted he told the employees he has authority
to do these things. In light of this testimony, his statement that he "lied" and that
he has no hiring authority, even coupled with the summary testimony of Demos,
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which merely reiterated Bailey's conclusion, appears as no more than a restatement
of the Respondent's ultimate contention as to the legal status of "shift bosses"; it
is not probative or revealing proof. With Bailey also virtually conceding he assigns
the various employees to particular jobs, the further testimony of the employees that
he "gives orders" must be believed.
Shift Boss Harris said General Manager Demos uses him to pass on discharge
notices. According to Oliveira he learned of his discharge on May 5 when Harris
handed him his pay and said, "We must let you go-the gestapo is cracking down and
you know why." Harris insisted not a word passed between them, that he silently
handed Oliveira,an envelope without knowing what was in it and that Oliveira just
walked away. If I am to believe Demos and Harris, nobody discharged Oliveira
when he was sent away. It is even conceded that the checks handed to Oliveira had
no indication of any personnel action. What could the Company have expected
Oliveira to believe except that Harris was the man who did the discharging? Harris
did not say to Oliveira that Demos, not he, had made the decision to terminate. I
find his testimony incredible; instead I find, as Oliveira testified, he did say "we must
let you go." So far as the employee was concerned, this was the man in authority.
When Ito the foregoing I add the much higher pay of the shift bosses, their supervisory
status becomes clear.
C. 8(a) (1) statements
Late Friday afternoon, on May 6, after Hesters had been discharged, a group of
employees were gathered at a bar and grill near the Miami Beach station. Among
them were Douglas Morris, Teddlie, Hesters, and Sugg. With them was also Bailey,
the shift manager. According to the testimony of Douglas Morris, Bailey said to
the men around him ". .. he wished that we would have come to him before we
had signed the union cards and all this trouble wouldn't have come up, that, he could
have talked us out of joining the Union." Continuing, according to Morris, Bailey
went on to say "that he, himself, Bill Bailey and Mr. Kennedy were at the restaurant
the night before, and they had been talking, and Mr. Kennedy told Mr. Bailey that
he was going to have to let Frank Hesters go because he had been coming back at
night; and talking about the Union among the employees" Finally, Morris re-
stated his recollection of Bailey's statement as follows:. "If we had come to him and
told him about this union thing that he could have talked us out of signing for it and
none of us would have been switched around."
Bailey did not contradict the foregoing testimony; his only reference at the hear-
ing to this general restaurant conversation was that he had been drinking on that
occasion.
Two other General Counsel witnesses also offered testimony intended to establish
general antiunion animus by the Respondent. Employee Sugg testified that after the
Company had received a copy of the Union's representation election petition, Shift
Manager Bailey told him that Shift Manager Harris had said that Mr. O'Neil, a high
officer of the Respondent, had voiced an intention to discontinue the business if the
Union prevailed. Sugg also quoted Bailey as having said that if all "this" had not
happened, "it possibly wouldn't have been too long before we would have gotten
hospitalization and a wage increase." Sugg's testimony on these points was vague,
indefinite, and not truly reliable. The twice removed hearsay testimony about O'Neil
having voiced an antiunion threat to another supervisor was denied by Bailey Sugg
also admitted that Bailey made no actual reference to the Union, when speaking of
hospitalization or wages, but that he, Sugg, "understood" that it was what Bailey
was "referring to." Further, it appears that the employees have long in fact had
hospitalization benefits, and it was only after an outright leading question by counsel
that Sugg altered his testimony and added that Bailey had spoken of "free" hospital-
ization. Accordingly, I cannot fairly rest any affirmative findings against the Re-
spondent upon these portions of Sugg's testimony.
William Morris said that General Manager Demos asked him for the names of
employees who had signed union cards. Demos denied having made such inquiries.
Morris also testified that several days after he was transferred away from the Miami
Beach station he asked Harris, the shift manager at his new location, why he had
been transferred, and Harris replied, "It was the union activities that caused the
transfer " Morris also testified that when Oliveira had been absent for a week, he
asked Harris what had become of him ,and Harris said: "They let him go. They
know he belongs to the Union because he is trying to organize the night crew"
Harris also denied having made any of these statements to William Morris For
reasons stated below I resolve this conflict in testimony between Morris and Harris
and Demos in favor of the latter. two.
THE GENERAL TIRE OF MIAMI BEACH, INC., ETC. 479
After the Respondent had rested, the General Counsel called Mrs. William Morris
in rebuttal, Her testimony, however, was substantially a corroboration of that of
her husband; she attributed to Shift Manager Harris the same type of antiunion
statement which formed the basis of William Morris' principal evidence. She said
that after her husband's transfer to the Biscayne station she drove there one day to
take him home, and, while waiting, had a conversation with Harris. According to
her, Harris said Morris had been transferred "on account of the union" and that
O'Neil "would close the plant before it [the Union] got it." Harris recalled the
conversation and, as he put it, they did discuss the Union and Moms' transfer, with
Mrs. Morris asking did Harris know why it had happened. Harris testified he did not
know and so told her; he denied ever saying O'Neil would close the station. In the
total circumstances, and from my observation of these witnesses, I credit Harris'
denials.
In sum, the facts supporting the complaint on this element of the case are these:
there was an extensive transfer; it was timed with receipt of the Union's petition for
a representation election; the Company knew that some of the transferees had signed
up with the Union; and there is some testimony of antiunion animus by the Re-
spondent. There are other facts shown in the record which tend to indicate that
the transfer of the entire group was not motivated by illegal purposes; some of these
are so urged by the Respondent; some are not. I must weigh them all, because, as
the General Counsel himself said, all the circumstances surrounding the events are
pertinent in an issue of this kind.
According to the uncontradicted testimony of Manager Kennedy, Andre Styer, one
of the eight men involved, asked to be transferred to his new location 3 or 4 days
before April 30 .4
Shortly before Easter Sunday, which fell on April 17, William Morris took a
case of oil from the stock shelves and placed it in Teddlie's car, with the latter's
knowledge. The incident was observed by employee Clark, who reported it to
Kennedy at his home that Sunday. A few days later Kennedy told Shift Manager
Bailey about this, and asked that Bailey send Morris and Teddlie into the office.
Bailey did so, and told the two men just why the manager wanted to talk to them.
Before entering the office the two men spoke briefly about what to do and say,
and they decided to tell Kennedy they had only taken empty cans and not any oil
at all When Kennedy confronted them with what had been reported to him, they
did tell him the prepared lie, in order, as Morris testified, to avoid the appearance
of having stolen company property .5
Kennedy checked with Clark again to vertify his report, and, as stated above,
he told both William Morris and Teddlie on Friday, April 30, they were being
transferred because of the oil incident. According to Douglas Morris, William's
son, Kennedy told him too about the oil incident, and added he must transfer the
son because, the father having been there 8 years, "it might cause talk .. . if
they transferred him without transferring me."
Tt seems also to be a fact-on both the testimony of Bailey and Oliveira's pretrial
affidavit-that an employee quit without notice at the Biscayne station and that on
April 29 the shift manager there called for help and Oliveira was sent off on the
30th with this replacement explanation given to him at the time as the reason.
' Styer did not appear at the hearing. In the circumstances I find Douglas Morris'
testimony that Styer had asked for a transfer "for some time" insufficient to offset the
direct testimony of the station manager
5 That they thus lied outright to their employer was candidly admitted by both Morris
and Teddlie from the witness stand at the hearing Morris even lied to the Board agent
investigating the case, when he gave an affidavit shortly after the transfers Ills dis-
regard for the truth in each of these two serious and important conferences leads me to
reject William Morris' testimony wherever it served to further his interests in this pro-
ceeding I therefore do not credit his testimony that Bailey did not tell him why Kennedy
wanted to see him, or that he and Teddlie did not plan their joint falsehood in advance
of the conversation with the manager in his office
Teddlie's affidavit to the Board investigator was placed in evidence, and it is ambigu-
ous on the question of whether the two employees actually took oil that day At the
hearing Teddlie swore he told the investigator the cans were full. Had he really had a
change of heart by that time, I think he would have taken pains to clarify his affidavit
before signing it In any event, his credibility, like that of Morris, stands fatally im-
paired in view of his theft and his lie to the manager Morris at least claimed at the
hearing that the oil really was his-a gift from an unnamed benefactor. Teddlie said he
never had reason to believe the oil was anything but the Company's property. On his
thus admitted theft and material falsity, I do not believe he ever told anyone the cans
were full of oil until he appeared at the hearing to testify in open court.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These evidentiary facts relating to five of the eight employees tiansferred-
Styer's request for transfer, Teddlie's and William Morris' theft of oil, the son's
tie-in with his father , and the need for replacement filled by Oliveira-are urged
by the Respondent as direct proof of the true reasons for the transfer of the five
men at least. The General Counsel , of course , argues that notwithstanding these
things were said and done, the overall picture disproves such ostensible explanations
of five transfers , and shows another purpose and intent instead . There is another
set of facts which I believe also pertinent here. While the Respondent did not
precisely group these facts as I think they should be, it is entitled to whatever
persuasive significance they may have upon the main issue.
The Company's records show that in the normal operation of its five locations
in and near Miami , transfers from station-to-station are not uncommon , indeed,
that they are very frequent . During the 16-month period preceding the date of the
hearing, 65 such transfers of employees occurred . During the same period there
were 93 terminations including discharges and voluntary quits. It does not appear,
however, that there ever took place as many transfers on a single day as occurred
on April 29, 1960.
The record in its entirety identifies 15 men as employed at the Miami Beach
station on April 30, and embraced within the bargaining unit proposed by the
Union in its election petition . In addition to the eight who were transferred there
were: Clark, Gary Brown, Sugg , Roberts, two mechanics , and Hesters , who was
released a week later . If there were additional employees in the proposed bargaining
unit, the record does not show . Of those who remained behind, Brown, Sugg, and
Hesters had signed union cards ; Clark did not. As to Roberts and the two mechanics,
the record is silent. Statistically, therefore , it appears that the Respondent trans-
ferred 8 of its 15 employees : 5 of those transferred and 3 of those who remained
had signed union cards ; 2 who were transferred had not signed cards, 1 of the re-
maining group also has not done so ; 1 of the transferees and 3 of these left behind
present a gap in the record.
And finally, before appraising the totality of the relevant facts in their general
setting, I find that Shift Manager Bailey told a group of employees , 6 days after the
mass transfer , that Hesters had been released because of his evening union activities
and that in his opinion , at least, even the transfers might never have occurred if
the men had asked his advice before joining the Union . I have no reason for
discrediting Douglas Morris who testified to such statements by Bailey in the restau-
rant. Bailey did not deny having said these things ; indeed he said it was here her
told the employees he could hire and fire people, but that he lied . Accordingly, I
find that Bailey's statement in the presence of a group of employees that' Hesters
had been discharged because of his union activities was an outright act of coercion
in violation of Section 8(a)(1) of the Act for which the Respondent is accountable
in this proceeding.
Analysis
It may well be that a prima facie case of illegally motivated mass transfer is
proven by the selected facts to which the General Counsel draws attention: knowl-
edge of union activities generally, knowledge of union activities by some individual
employees , highly suspicious timing, unusually extensive transfer in a single day, and
some evidence-after the event-of illegal motive expressed by a single supervisor.
The ultimate question , however, is whether the record as a whole, including all
the related facts, warrants the essential allegation of the complaint that the April 30
transfers were all illegally intended. Considering the evidence as a whole I am
unable to draw this conclusion . There are too many details of the "entire circum-
stances" which , although each in isolation not determinative , when viewed together
effectively serve to rebut the prima facie inference that might otherwise arise.
To borrow a phrase, a counter prima facie case was made out by the Respondent
in apparent explanation of the transfer of five of the eight employees . Styer asked
to be moved . Shift Manager Harris from Biscayne called for an emergency replace-
ment and Oliveira was sent over . William Morris and Teddlie stole oil from the
Company and certainly furnished adequate reason for their transfer , if not for more
severe discipline .6 And on its face, the transfer of Morris' son, Douglas , to avoid
embarrassment , if such was the object, was a reasonable thing to do.
a In the total circumstances , including the retailing aspects of the Respondent 's busi-
ness and Morris' poor standing as a witness , I deem his assertion that the oil in question
had been given him as a gift unsupported by probative proof He said the Pennzoil people
had given him the oil . Why9 "I can't explain I will just say it was for friendship"
He could not remember the name of the oil salesman who had made him the gifts ; he
said a number of salesmen had given him oil in the past, always out of friendship, and
THE GENERAL TIRE OF MIAMI BEACH, INC., ETC . 481
With two of the men-William Morris and Teddlie-definitely having done
nothing to indicate prounion sentiments before April 30, and a third-Styer-not
shown to have done anything either-the General Counsel cannot, and does not,
contend that the Company selected the proumon employees for discrimination. His
theory instead is, and must be, that as soon as it learned of the Union's request
for an election, the Respondent simply decided to disperse the employee complement
helter-skelter without regard to who was affected. But even under this theory,
its underlying purpose must still have been to defeat the union organizational
campaign, else the whole act would not be unlawful. With this as a purpose
necessarily to be imputed to it, how can I fit into a pervasive evil intent the Com-
pany's treatment of Sugg, who they knew to have signed a union card, who was
shown clearly on the record to be a very undesirable employee because of his
drinking habits, and who was never transferred? Like Sugg, Hesters, too, had
told Kennedy he had signed a union card. Quite apart from what the Respondent
may have decided to do about Hesters 5 days later, its failure to include him in
the mass layoff appears as directly inconsistent with the alleged overall determina-
tion to hurt the Union's organizational campaign generally that day. This leaves
only one-Douglas Morris-of the three whose union activities clearly were known
by the Respondent. He is the only one of these three to have been included in
the "discriminatory" transfers, and as to him-quite like Sugg and Hesters-what
the Company also had learned was that all three had finally decided to have nothing
to do with the Union. With Sugg and Hesters thus ignored although they stood
in the same light as Morris to the Respondent, the "discriminatory" selection of
Douglas Morris from among the three remains unexplained; in the circumstances ,the
asserted ground for selection advanced by the Respondent-to avoid embarrassment
now that his father had been sent away-appears more persuasive.
Campbell, Harden, and Mitchell were simply sent elsewhere There does not
appear to have been any conversation with Campbell and Harden; they were told
to go and they went. Mitchell did not testify. There is little of substance in the
Respondent's explanation of these transfers. Assertedly to better the operation of
the Miami Beach station, Kennedy replaced a former manager on April 7. He and
General Manager Demos testified it was then decided between them to take measures
to improve the operations of this location because its volume had fallen and there
was a "lethargic mood" prevalent among the employees. They also said it was then
decided to do that at the end of the month, but came forth with no objective con-
siderations which could justify the delay of 23 days and the resultant timing of their
allegedly remedial action precisely with the culmination of the Union's campaign.
They spoke of seasonal peaks and lows, of the close of the racetrack at almost the end
of the month. But the men were released, the overall complement was not reduced,
and whatever drop in business occurred was not shown to have affected the Miami
Beach station differently from all the others.
Merely because the asserted explanation of general economic necessity as reason
for the transfer of three of the eight men involved does not persuade, does not mean
that an opposite, affirmative cause is thereby positively established. All that really
remains, even in the absence of any apparent reason for the transfer of three of the
eight, is an extensive dispersal of employees timed to their union activity. In other
comparable situations, where large numbers of employees were laid off (or trans-
ferred) in circumstances which suggest both economic and illegal motivations, the
Board has looked to the ratio of prounion as against antiunion or neutral employees
affected for an added indication of the probable cause.? It is for this reason that I
deem the statistical picture shown by the record to be highly significant.
Of eight employees shown to have signed union cards, five were transferred and
three were not; of the three who definitely took no steps to join or assist the Union,
two were removed from the Miami Beach station. And of the four remaining
employees concerning whose union activity, if any, the record is silent, three remained
and one went Plainly the way in which the heavy band of transfer fell gives no
support to a theory of antiunion discriminatory intent. Rather it indicates strongly
that the employees' union activities had nothing to do with the Company's action.
With this as the statistical picture, the affirmative defense as to five of the group
of eight gains added persuasion. I think in the total picture thus presented, some-
thing more solid than the suspicious circumstances of timeliness and extensive action
then added the salesmen changed as often as three or four times a month. And finally,
lie admitted he never told the station manager or the shift boss of such a gift to himself
On this record I can only conclude the oil was not his to take.
7 W C. Nabors, d/b/a W. C. Nabors Company, 89 NLRB 538, enfd 196 F 2d 272
(CA. 5).
649856-63-vol. 137-32
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is required to support a finding of illegal intent. All that the record shows, so far
as the Respondent's intent on April 30, is the general statement of Bailey in the
restaurant 6 days later, that if the employees had consulted him "all this might not
have happened." I do not believe such a summary statement by the shift boss, after
the event, sufficient to warrant a finding that despite the facts set out above, an overall
illegal intent has been affirmatively established. I find on the entire record that this
allegation of,the complaint has not been sustained.
D. The discharge of Oliveira and Hesters
Oliveira, transferred to the Biscayne station on April 30 and was discharged from
that location on May 5. Hesters, always employed at the Miami Beach station, was
discharged on May 6. As set out above, when Shift Manager Harris released
Oliveira he told him: . We are going to have to let you go. The gestapo is
cracking down and you know why." When Oliveira asked what reason he might
give to the USES, Harris replied: "It's a seasonal layoff." 8 When Manager Kennedy
discharged Hesters he said it was "because the business is slackening."
Oliveira had been hired on February 27, 1960, and Hesters had worked since June
1959. Both these men signed cards in favor of the Union several weeks before their
discharge. Oliveira worked on the second shift and solicited the men on the night
crew to join up; he also approached one man at the Biscayne station. Hesters was
one of the three men who went to Manager Kennedy about April 26 to advise him
they had joined the Union but had changed their minds about it.
There is direct evidence of casual relationship between the union activities of these
two men and the discharges. As stated above, in the evening of May 6, after Hesters
had been released, a number of employees gathered in a restaurant near the Miami
Beach station. Shift Manager Bailey was with them and there was discussion about
the employees' union activities. Several of the employees then present testified as
to certain statements by Bailey, all of them standing uncontradicted on the record.
According to Douglas Morris, Bailey said "that he, himself, Bill Bailey and Mr.
Kennedy were at the restaurant the night before, and they had been talking, and Mr.
Kennedy told Mr. Bailey that he was going to have to let Frank Hesters go because
he had been coming back at nights and talking about the Union among the employ-
ees." Morris also quoted Bailey as having said: "If he [Hesters] would have kept
his nose clean, he might have been able to save him." Hesters, who was also present
then, corroborated the testimony of other witnesses that during the conversation
Bailey told the men that if they had first come to him he would have prevented their
signing up with the Union. He then went on to testify respecting what Bailey con-
tinued to say: " . . then he told me why I was laid off. He said that Gene Kennedy
had taken him down to the bar the night before and told him that he was going to
have to let me go because he had received information that I was trying to organize
the night shift; that I'd been around there at night and I was trying to organize the
night shift." Hesters also testified that Bailey said the same thing about Jerry
Oliveira.
Employee Sugg also testified, without contradiction, that on one occasion between
May I and 5, while he was speaking to Bailey on the parking lot, Bailey "said that
he though the union had actually started on the night shift and that Jerry [Oliveira]
was the instigator "
Bailey denied none of the foregoing testimony, which I credit. Bailey's simple
statement at,the hearing that he had been drinking at the restaurant on the occasion
mentioned above, can hardly serve to explain or offset so direct and revealing testi-
mony by the several employee witnesses.
Despite these direct admissions by the very supervisor who hired both Oliveira
and Hesters in the first instance, the Respondent contended at the hearing that they
were discharged because, for one reason or another, they were undesirable employees
and on the asserted ground that at the time there was need for reducing the com-
plement of employees with the normal decline in, the volume of business With
respect to Oliveira, General Manager Demos testified that it was he and he alone
who decided to discharge the man. Asked at the hearing to say why, his answer
was: "I discharged him for several reasons. One, I had observed him and I had
discused with Mr. Harris when he was transferred over, I discussed with Mr. Harris
how his performance of his job was and Mr. Harris notified me that he spent time
when he was suppose to be working, working on his motorcycle; that his appear-
ance was not good; that he needed a haircut; that he was also lethargic in servicing
8 Harris' version of the terminal conversation-that there were no words spoken at all,
that Oliveira simply knew he was being dismissed with no one telling him a word-I have
already found to be an incredible story.
THE GENERAL TIRE OF MIAMI BEACH, INC., ETC. 483
customers when they drove in on the drive , that he would stand there and not go
out to greet the customers." 9
The testimony concerning Oliveira's use of his motorcycle to go to work, his
attention to it at the station , and his behavior or appearance as an employee, is
very vague , confused , and generally elusive. He used his motorcycle as a means
of transportation , and parked it at or near the Respondent 's property . It appears
that other automobiles belonging to customers or other employees were on occasion
parked on the premises . Oliveira conceded that on one occasion he cleaned part
of his motorcycle during working hours when time permitted . He also admitted that
he repaired the taillight on the cycle on another occasion . On this question of
Oliveira's attention to his motorcycle , the testimony supporting the affirmative de-
fense of discharge is largely that of Harris , the shift manager over Oliveira's shift.
Harris' testimony is vague and insubstantial . He started by saying it was Mark
Toal (another shift manager) who reported to Harris that Oliveira worked on his
motorcycle at night. Toal did not testify. Harris continued: ". . . The following
night . I pulled up and Mr. Oliveira was working on his motorcycle right there
alongside where I pulled up and I don't believe that he knows until this day that
I pulled up there . So far as I was concerned he thought more of his motorcycle
than he did of his job." Harris admitted he never mentioned the matter of the
motorcycle to Oliveira at all.
Harris attempted to cast Toal's report as a complaint over Oliveira's attention to
duty, and his words from the witness stand illustrate the generally strained charac-
ter of his testimony on this subject . He quoted Supervisor Toal as follows: "He
says, `Well, he [ Oliveira] doesn 't seem to want to work' `Well ,' I said, `what do
you mean by that?' He says, `Well, I can't deny that he doesn't wait on trade, [sic]
but he's got a motorcycle that he's been working on."'
In criticism of Oliveira's work generally , the testimony of all three Respondent
witnesses , Demos, Bailey, and Harris, is even more elusive and vague than that
respecting the motorcycle business . Indeed , a fair appraisal of all their references
to Oliveira at the hearing in this respect suggests a studied attempt to disparage
him personally and generally with little of substance to support the charges. Thus
demos: . Oliveira . . . didn't make any immediate move to attend the cars.
I also noted that his appearance left a great deal to be desired . He had a tendency
to wear dark glasses, also he needed a haircut badly." Shift Manager Bailey agreed
Oliveira had been "a fairly good worker," and, with respect to his hair: "I'd say
Jerry's hair was pretty well trimmed most of the time." And finally, Shift Manager
Harris, Oliveira's last supervisor : ". . . He was . . . a little hesitant in going out
and waiting trade; on several occasions he'd just stand there combing his hair .. .
he just had a head of hair like you have never seen before." Harris also said he
reported Oliveira's failings to his higher officer, O'Neil, the very first night Oliveira
arrived at the Biscayne station , by saying to Mr. O'Neil : "We have one of those
`hepcats' and I don't think he is going to work out." Harris then explained that a
cat "is one of those `long haired ' deals where I guess they more or less refer to them
as the `beatnik' stage today . he's really a motorcycle enthusiast."
In the end, Harris admitted he had only seen Oliveira at his motorcycle on one
occasion , and that he had never mentioned the fact to him. Indeed, the testimony
of all three company witnesses was that none of them had on any occasion advised
Oliveira that any of his conduct , or his appearance , or his attitude, required any
change on his part . Curiously, also, the discharge conversation , according to man-
agement representatives , was nothing at all. They would have it that Oliveira,
when he was discharged , understood he was to be fired with no one telling him why
either then or at any time before.
9 Oliveira was transferred from the Miami Beach station to the Biscayne station on
April 30 During that week he engaged in an altercation with employee Sugg on the
station premises in consequence of Oliveira's belief that Sugg had taken Oliveira's motor-
cycle without authority and damaged it Concededly, Oliveira struck Sugg in the fisti-
cuffs and the station manager, Kennedy, took him into the office to calm him and even
told him that such conduct would not be tolerated, especially in the presence of customers
While evidence as to this incident was brought out by the Respondent at the hearing, and
admitted by Oliveira, no contention was made either that Oliveira was transferred away
from Miami Beach because of the incident, or that it was a factor in the mind of Demos
in deciding to discharge him on May 5. In any event, if the Respondent was truly con-
cerned with reducing the personnel , or "trimming the payroll ," at that time , it would
hardly have transferred Oliveira to a second location instead of taking the opportunity
of the fisticuffs to separate him from the Company. I therefore attach no significance,
with respect to the later discharge , to this incident.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The decision to discharge Hesters was made by manager Kennedy alone. He
said his reason was to trim the payroll, as O'Neil had ordered, and because "Hesters
had been seen in the company of a very young girl on several occasions." The
testimony regarding Hesters' undesirability as an employee suffers from the same
generality and vagueness as does that concerning Oliveira, and again, in its en-
tirety, appeared more as personal disparagement than critical evaluation of his
work performance. The testimony was mostly by Station Manager Kennedy, and
centers primarily upon Hesters' attempt to sell his own automobile to a lady cus-
tomer, his attention to her when she came in for service, and, allegedly, his having
arranged for a date with her. Kennedy made much of the fact that Hesters on
one occasion rode a customer's car a few minutes in an effort to learn what was
wrong with it; he said the station attendants had been instructed not to do this but
to refer mechanical complaints to the mechanical department. He added that twice
Hesters drove away from the station with a lady customer and then also recalled
that the first time was after work hours. He also admitted Hesters told him he
was try to sell his car to the young lady. While the obvious purport of Kennedy's
statements was to present this sort of conduct by Hesters as something "not nice"
in a service station attendant, it also appeared clearly that the manager thought of
the incident as something to jest about. He stressed the undue time Hesters devoted
to cleaning the lady's new car: "I never saw ever before give such careful inside
service to the windshield of any automobile."
Hesters admitted he spoke to a lady customer who expressed a desire to purchase
his sports car, that he showed her how to drive it on one occasion, and that she was
unable to do so and abandoned the thought of buying it. He denied that he ever
went with her just to take a ride. Hesters also admitted he once rode a customer's
car for a few minutes to check for mechanical defects because he understood a
pumpman or serviceman could take a quick look. He said he did not discover what
was wrong and quickly sent the customer with her car to the mechanics.
In support of the assertion Hesters was discharged because of the decline in busi-
ness, Demos testified that the operations of the Respondent in the Miami area de-
cline in the spring of each year, and that therefore the discharge of both Hesters
and Oliveira were occasioned at bottom for this reason. He said with the closing
of the racetrack in Miami business falls off in the end of April, but no records of
the Company were produced to support this broad assertion. The defense asser-
tion of a seasonal decline in business was confusedly interwoven, by its witnesses,
with a companion defense that the employee complement as a whole was unsatisfac-
tory and that a poor attitude by the employees had endangered the economic sta-
bility of the Miami Beach station. It was to remedy this aggravated situation that
Kennedy was transferred to that station on April 7, to replace the former manager,
Smith. Kennedy testified he and Demos discussed this problem on April 8 and
that it was then decided to "transfer some new blood" into the organization. With-
out any logical or plausible explanation, Kennedy then went on to say that he and
the general manager also decided that day not to make any changes until "the end
of the month and effective the next month." 10
Neither the asserted reduction in complement due to decline in business nor the
claimed extraordinary incompetence of the employees as a whole were proved by
definitive and substantial evidence. It was not shown that the total number of
employees at the Miami Beach station were reduced at this time. The testimony
respecting the alleged neglect of duty is totally conclusionary and lacks any pro-
bative value. Thus, Shift Manager Bailey: ". . when Mr. Gene Kennedy came
in there it seemed everything lighted up and became a lot better for all of us."
Manager Kennedy described the situation he found when he arrived as follows:
"They seemed very lethargic in their work. They seemed disinterested. They were
not putting out as I thought they should and I did not think they were helping the
service department as they should." Again: "They were working, but not working
as they should have been, and as I knew they could."
I do not believe these generalities of dissatisfaction by the Respondent over the
work performance of its employees generally can effectively offset the direct evidence
tieing the discharges of both Hesters and Oliveira to their current union activities
I deem of particular significance here the fact that there is no explanation for the
long delay in implementing any desire to make improvements until the very time
10 Demos testified in the same vein. After explaining how unsatisfactory the Miami
Beach operations had been, how this situation had required a change of managers, and
how he had instructed the new manager to take remedial action on April 8 he simply
added: "However, I told Mr. Kennedy that I did not want to do this immediately, that
I wanted to do this by the first of May. . . . .
THE GENERAL TIRE OF MIAMI BEACH, INC., ETC . 485
when the employees chose to join the Union and to attempt to engage in collective
bargaining. Moreover, there was virtually no warning to either of them either that
they were unsatisfactory or that they were in danger of discharge. The contention
that Oliveira was selected for discharge because of his hair style borders closely upon
the frivolous. In sum, considering all the Respondent's evidence, I find it does not
suffice to establish affirmatively that the Respondent in fact discharged either Hesters
or Oliveira because of any misconduct or unsatisfactory work. Instead I find, as
the complaint alleges, that both of these men were released because of their activi-
ties on behalf of the Union, to discourage the union activities of the employees gen-
erally, and therefore in violation of Section 8(a)(3) and (1) of the Act.
IV. THE, EFFECT.OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in- section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action de-
signed to effectuate the policies.of the Act
Having found that the Respondent discriminated against Jerry Oliveira and Frank
Hesters with respect to their hire and tenure of employment, I will recommend that
it be ordered to offer them immediate and full reinstatement to their former positions,
without prejudice to any privileges or prerogatives previously enjoyed, and to make
them whole for any loss of earnings they may have suffered because of the dis-
crimination against them, by payment of a sum of money equal to the amount they
normally would have earned as wages from the date of the discharges to the date of
reinstatement , less their net earnings during said period, with backpay computed
on a quarterly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289. I will also recommend that the Respondent make avail-
able to the Board, upon request, payroll and other records to facilitate the determina-
tion of the amounts due under this recommended remedy.
As the discharge of employees because of their union activities goes to the very
heart of the Act, the commission of similar and other unfair labor practices reason-
ably may be anticipated. I shall therefore recommend that the Respondent be or-
dered to cease and desist from in any manner infringing upon the right guaranteed
to its employees by Section 7 of the Act
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. By discharging Jerry Oliveira and Frank Hesters the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
3. By the foregoing conduct and by telling employees that other employees had
been discharged because of their union activities, the Respondent has interfered with,
restrained, and coerced employees in the rights guaranteed in Section 7 of the Act,
and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law , and upon
the entire record in the case . T recommend that The General Tire of Miami Beach,
Inc.; The General Tire of Miami, Inc.; and M . O'Neil Properties , of Miami and
Miami Beach , Florida, their officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, Local 320, or any other labor organi-
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
zation of its employees , by discharging or refusing to reinstate employees, or in,
any other manner discriminating against them in regard to their hire or tenure of
employment or any term or condition of employment.
(b) Telling its employees that other employees have been discharged because
of their union activities, or in any other manner interfering with, restraining, or
coercing their employees in the exercise of the right to self-organization, to form,
labor organizations, to join or assist International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local 320, or any other labor or-
ganization, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for purposes of mutual aid or protection, and
to refrain from any and all such activities, except to the extent that such rights may
be affected by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Offer Jerry Oliveira and Frank Hesters immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges previously enjoyed, and make them whole
for any loss of pay they may have suffered by reason of the discrimination against
them, in the manner set forth in the section of this Intermediate Report entitled
"The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other reports necessary to determine
the amounts of backpay due and the rights of employees under the terms of this
Recommended Order.
^(c) Post at their stations in Miami and Miami Beach, Florida, copies of the notice
attached hereto marked "Appendix." Copies of said notice, to be furnished by the
Regional Director for the Twelfth Region, shall, after being duly signed by the
Respondent, be posted immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twelfth Region, in writing, within 10'
days from the receipt of this Intermediate Report and Recommended Order, what
steps the Respondent has taken to comply herewith.
It is further recommended that unless on or before 20 days from the date of
receipt of this report the Respondent notifies the said Regional Director that it will
comply with the foregoing recommendations, the National Labor Relations Board
issue an order requiring Respondent to take the action aforesaid.
It is also recommended that the complaint be dismissed insofar as it alleges un-
lawful discrimination in employment against James Harden, Jessie Campbell, D C.
Miller, William M. Morris, Douglas W. Morris, Ardis B. Teddlie, and Andre Styer.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Local 320, or any
other labor organization of our employees, by discharging and/or refusing to
reinstate them, or in any other manner discriminating against them in regard
to hire or tenure of employment or any other term or condition of employment.
WE WILL NOT tell our employees that other employees have been discharged
because of their union activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist International Brotherhood of Teamsters. Chauffeurs,
Warehousemen and Helpers of America, Local 320, or any other labor oreaniza-
tion. to bargain collectively through representatives of their own choosing. or
to engage in other concerted activities for the purpose of mutual aid Or protec-
tion, and to refrain from any or all such activities, except to the extent that such
GLAZIERS, GLASSWORKERS, ETC., LOCAL UNION 1778 487
right may be affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized by Section 8(a)(3) of
the Act, as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
WE WILL offer Jerry Oliveira and Frank Hesters immediate and full rein-
statement to their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of their discharge.
All our employees are free to become or to remain members of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Local 320, or any other labor organization, or to refrain from such membership,
except to the extent that this right may be affected Eby an agreement authorized by
Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
THE GENERAL TIRE OF MIAMI BEACH, INC.;
THE GENERAL TIRE OF MIAMI, INC.;
M. O'NEIL PROPERTIES,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Glaziers, Glassworkers and Glass Warehouse Workers Local
Union No. 1778, Brotherhood of Painters , Decorators and
Paperhangers of America , AFL-CIO and E. Frank Muzny.
Case No. 23-CC-91. June 4, 1962
DECISION AND ORDER
Upon an original charge filed on June 1, 1961, and an amended
charge filed on June 6, 1961, by E. Frank Muzny, an individual, a
complaint and notice of hearing was issued on June 23, 1961, by the
General Counsel, by the Regional Director for the Twenty-third
Region, against the above-captioned Respondent, hereinafter called
the Union, alleging that it had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section
8(b) (4) (i) and (ii) (B) of the National Labor Relations Act, as
amended. Respondent filed its answer on June 24, 1961, and on July 5,
1961, an order was entered by the Regional Director postponing the
date for hearing. Thereafter, on August 1, 1961, the parties entered
into a stipulation in which they waived a hearing and the taking of
testimony before a Trial Examiner, the making of findings of fact and
conclusions of law by a Trial Examiner, and the issuance of an Inter-
mediate Report and Recommended Order.
The parties provided in their stipulation that the case be submitted
directly to the Board for findings of fact, conclusions of law, and
Decision and Order, based upon a record to consist of the aforesaid
stipulation, the charge and amended charge, complaint, notice of
hearing, order postponing hearing, Respondent's answer to the com-
,137 NLRB No. 25.