Car Traders, Inc.

184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Car Traders, Inc. and Melvin Simon. Case No. 2-CA-9911. April 27, 1965 DECISION AND ORDER On December 23, 1964, Trial Examiner Wellington A. Gillis issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in unfair labor practices as alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the General Counsel's exceptions and brief, and the entire record in this case, and finds merit in the exceptions of the General Counsel. Accordingly, the Board adopts the findings, con- clusions, and recommendations of the Trial Examiner only to the extent consistent herewith. On March 2, 1964, Charging Party, Melvin Simon, was hired by Respondent, Car Traders, Inc., as a driver for the pickup and delivery of automobiles handled in the Respondent's wholesale used-automobile business. On Sunday, March 15,1964, Simon attended a union meeting on Long Island called for the purpose of discussing the organization of the wholesale automobile industry in and around the vicinity of Jerome Street, New York City, where Respondent had its place of business. During the following week, Cooper, Respondent's president, received a telephone call from a customer complaining about the manner in -which an automobile was delivered to his place of business. On March 20, La Valle, Respondent's dispatcher, upon directive of Gold, an official of Respondent, discharged Simon. La Valle testified that Gold told him, "Let him [Simon] go. I think you know why." La Valle further testified that when he discharged Simon, he told him he had to take away his plates because of his union activities. Cooper testified that he may have heard some small rumor about union activity in the industry. The above evidence, elicited by the General Counsel from Respond- ent's own officials and supervisors, plainly indicates that Simon was discharged because of his union activities. Respondent nevertheless contends, and the Trial Examiner found, that the General Counsel has 152 NLRB No. 15. CAR TRADERS, INC. 185 not proven his case. Respondent contends, first, that La Valle is not a supervisor within the meaning of the Act, and therefore neither his statement of the reason for the discharge, nor any knowledge he may have had of Simon's union activities, is attributable to Respondent. Secondly, it contends that La Valle did not in fact have knowledge of Simon's union activities. With respect to the first contention, La Valle testified on direct exam- ination that he hired the drivers that worked under him, a statement he repeated in answer to a question from the Trial Examiner. Though he equivocated to some extent on cross-examination, he later testified that it was his duty to make certain there were enough drivers for Respondent's 10 license plates. Moreover, it is clear that Simon, him- self, was hired on La Valle's recommendation, even though Respond- ent already had 10 drivers at the time. Furthermore, it is also clear that La Valle assigns and directs the work of the drivers and partici- pates in attempts to adjust their grievances. We find, therefore, con- trary to the Trial Examiner, that La Valle is a supervisor within the meaning of Section 2 (11) of the Act. With respect to Respondent's second contention, it is true that La Valle denied knowledge, in fact, of Simon's union activity. We do not credit this denial. In the first place, La Valle's denial was impeached by the General Counsel's introduction of La Valle's pretrial affidavit, in which La Valle admitted that he knew of Simon's union activities. Secondly, La Valle admitted that he told Simon that the latter was being discharged because of his union activity. We think it reasonable to infer that the latter statement would not have been made to Simon, unless La Valle either had personal knowledge of Simon's union activ- ity, or unless he read such meaning into Gold's directive "to let him go, I think you know why." In either event, we are satisfied that La Valle's statement to Simon that he was being discharged because of his union activity provides the necessary basis for the finding, which we make, that Respondent did have knowledge of such activities on Simon's part. Notwithstanding the admission of its supervisor that Simon was told he was discharged for union activities, Respondent contends that Simon was, in fact, discharged for cause. It is true that the discharge took place shortly after Cooper received a phone call from a customer, Arthur Fried, who according to Cooper complained about the manner in which an automobile had been delivered. Cooper testified that when he learned that the driver was Simon and that Simon had been discharged by a previous employer for a driving accident, he told Gold to tell La Valle to discharge Simon. Arthur Fried testified that he called after the incident in question to inform Respondent of an un- 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD usual hump in his driveway, and to ask Respondent to inform its driv- ers of the need to be careful when delivering automobiles. He made the call because of his concern about possible damage to automobiles and not to complain about the driver. Simon was not told of the com- plaint supposedly lodged against him, and was not told that his was the reason for his discharge. We are satisfied that this asserted reason, as well as another advanced at the hearing in his case,' were mere after- thoughts, and that the real reason for Simon's discharge was that given him by La Valle at the time of discharge. Accordingly, we find that by discharging Simon because of his union activities, Respondent vio- lated Section 8 (a) (3) and (1) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor prac- tices violative of Section 8(a) (3) and (1) of the Act, we shall recom- mend that it cease and desist therefrom, and take certain affirmative actions, designed to effectuate the purposes of the Act including offer- ing to Melvin Simon immediate and full reinstatement to his former or a substantially equivalent position, and make him whole for any loss of earnings he may have suffered because of the discrimination against him by payment to him of a sum of money equal to the amount of wages he would have earned from the date of his discharge to the date of the offer of reinstatement, less his net earnings during such period, together with interest thereon at the rate of 6 percent per annum. The loss of pay and interest thereon shall be computed in accordance with the respective formulas and methods prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Car Traders, Inc., its agents, officers, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Teamsters, Chauffeurs, Ware- housemen and Production Workers, Local 424, Independent, or in any other labor organization, by discriminating against employees in regard to their hire or tenure of employment or any other term or con- dition of employment. 1 Cooper also testified that he was obliged to lay off three drivers, including Simon, for economic reasons the week of Simon's discharge . However, he also admitted that he hired other drivers the same week. CAR TRADERS, INC. 187 (b) In any other manner, interfering with, restraining, or coercing its employees in the exercise of their right to self organization, to form, join, or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right is affected by the provisos in Section 8(a) (3) of the Act, as amended. 2. Take the following affirmative action which it is found will effec- tuate the purposes of the Act : (a) Offer to Melvin Simon immediate and full reinstatement to his former or substantially equivalent position, and make him whole for any loss of pay he may have suffered by reason of the discrimina- tion against him, in the manner and in accordance with the methods referred to in the section above entitled "The Remedy." (b) Notify Melvin Simon, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records relevant or necessary to a determination of the amount of backpay due and to the reinstatement and related rights provided under the terms of this Order. (d) Post at its main place of business at New York, New York, where employees of Respondent are employed, copies of the attached notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for Region 2, shall, after being duly signed by a representative of the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (e) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. 2 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals, Enforcing an Order 11 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the purposes of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discharge any of our employees or discriminate in regard to their hire, tenure of employment, or any term or con- dition of employment, because they have engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of any of their rights protected by Section 7 of the Act. WE WILL offer Melvin Simon immediate and full reinstatement to his former or substantially equivalent position without preju- dice to any rights and privileges he previously enjoyed. WE WILL make whole Melvin Simon for loss of pay suffered as a result of his discharge. CAR TRADERS, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) NOTE.-We will notify the above-named employee if presently serv- ing in the Armed Forces of the United States of his right to full rein- statement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 745 Fifth Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on March 23, 1964, by Melvin Simon, an individual, the General Counsel for the National Labor Relations Board, hereinafter referred to as the Board, issued a complaint on April 30, 1964, against Car Traders, Inc., herein- after referred to as the Respondent or the Company, alleging that on or about March 20, 1964, the Respondent unlawfully discharged Melvin Simon, and since that time has failed to reinstate Simon, in violation of Section 8 (a) (1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), here- inafter referred to as the Act. The Respondent thereafter filed a timely answer to the complaint denying the commission of any unfair labor practices. CAR TRADERS, INC. 189 Pursuant to notice, a hearing was subsequently held at New York, New York, before Trial Examiner Wellington A. Gillis, at which both parties were represented by counsel, were afforded full opportunity to be heard, to examine and cross- examine witnesses, to introduce evidence pertinent to the issues, and to engage in argument. Upon the entire record in this case, and from my observation of the witnesses and their demeanor on the witness stand, and upon substantial, reliable evidence "con- sidered along with the consistency and inherent probability of testimony" (Universal Camera Corporation v. N L.R.B., 340 U.S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Car Traders, Inc., is a New York corporation, maintaining its principal office and place of business in New York city, where it is engaged in the wholesale sale and distribution of used cars and related products. During the period commencing Feb- ruary 1, 1964, and ending April 30, 1964, the Respondent sold and distributed at its New York city place of business, products valued at an annual rate in excess of $250,000, of which at an annual rate products valued in excess of $50,000 were shipped in interstate commerce directly to points located outside the State of New York. The parties agree, and I find, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties agree, and I find, that Teamsters, Chauffeurs, Warehousemen and Production Workers Local 424, Independent, is a labor organization within the mean- ing of Section 2(5) of the Act. HI. THE ALLEGED UNFAIR LABOR PRACTICES A. The issue Whether, in discharging Melvin Simon, a car transporter, on March 20, 1964, the Respondent did so because of his union activities. B. The facts The credible evidence discloses that the Respondent, on or about February 1, 1964; commenced its business as a wholesale dealer in used cars, and conducted its opera- tions at 1546 Jerome Avenue, New York city. Such operations consist primarily in purchasing used cars from distant points, transporting them to the Jerome Avenue place of business, and, in turn, selling them to local used car retailers. Thus engaged, in addition to buyers who travel about locating suitable used cars, the Respondent employs a bookkeeper, a car dispatcher, and a number of drivers, sometimes referred to as car transporters, who pick up the purchaser cars and drive them back to the Jerome Avenue place of business. Car transporters are assigned by the Respondent's car dispatcher to pick up the used cars, are paid on a trip basis according to a schedule of reimbursement predicated upon the distance from the Respondent's operations, and receive a weekly check for their pickups during the week, from which paycheck taxes and social security for the drivers are deducted 2 Drivers are assigned license plates which are covered by the Respondent's liability insurance. Based upon these factors, I find, contrary to the affirmative defense asserted by the Respondent, that the Respondent's drivers or car transporters fall within the "right of control" test applied by the Board in determining the status of persons alleged to be independent contractors, and thus are employees of the Respondent.3 i Unless otherwise noted, all dates refer to the year 1964. In those instances where a retailer, who has purchased a car from the Respondent, does not pick up the car himself but asks the Respondent to have the car delivered, the driver is paid by the retailer, and, in effect, the driver is then performing a service for the retailer outside the scope of his employment with the Respondent. 3As enunciated by the Board in such cases as Buffalo Courier-Express, Inc., 129 NLRB 932, and National Freight, Inc., 146 NLRB 144, under the test, "where the person for whom the services are performed retains the right to control the manner and means by which the result Is to be accomplished , the relationship is one of employment; while, on the other hand, where control is reserved only as to the result sought, the relationship is that of an Independent contractor." 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A second preliminary issue remains for resolution pertaining to the supervisory status of the Respondent's car dispatcher. In this regard, the record discloses that, apart from his primary duties of sending drivers to pick up cars, which is normally done on a "first man in, first man out" basis, and the carrying out of directives of his superiors, Herbert Cooper and Leo Gold, the car dispatcher, although recom- mending drivers for openings, has no authority to hire or fire, or to perform any, other than routine, functions connected with the supervision of employees. Accord- ingly, I find, contrary to that asserted by the General Counsel, that the car dispatcher is not a supervisor within the meaning of the Act. Melvin Simon , the alleged discriminatee in this proceeding,4 was hired as a car transporter on March 2, when Anthony La Valle, the Respondent's car dispatcher at the time and a friend of Simon during previous employment, recommended him to Leo Gold, a company supervisor. Toward the latter part of the third week of Simon's employment, Herbert Cooper, Respondent's president, received a telephone call from Arthur Fried of K & M Motors, a retailer customer, complaining strongly about the manner in which, based upon his own observation, a car had been delivered by one of Respondent's drivers. Cooper then spoke to Gold about the incident, and, in ascertaining that the driver involved was Simon, learned that, just prior to Simon's employment with the Respondent, he had been discharged as a driver for Auto Buyers for having been involved in a driving accident. Cooper told Gold to get rid of Simon right away. Gold apprised La Valle of Cooper's directive, telling him that "you are going to have to let Simon go. I think you know why." 5 Thereafter, when Simon reported in on Friday, March 20, La Valle told him that he would have to take his plates away. Simon, without comment, turned in his plates and left the premises. With respect to the above incident, I do not credit Simon's belated testimony to the effect that La Valle added "because of the Union meeting." Simon, who rendered other inconsistent testimony, first testified that La Valle told him, "Mel, I have to take your plates away," and, on the witness stand, volunteered, "I knew what it was for. It was for the Union." 6 Simon's demeanor on the witness stand and the man- ner in which he answered questions did not impress me as a candid witness, but rather, as one who was attempting to bolster his own case. Nor does the testimony (of La Valle aid Simon's case, either on this point or on any other. La Valle, who was the General Counsel's main witness, repudiated his pretrial affidavit on crucial matters on direct examination, and subsequently was impeached by the General Counsel. Thus, in his affidavit, La Valle stated that (1) "I cannot recall specifically, but from frequent casual words from other drivers in the wholesale used car business in the Jerome Avenue area, I learned that Melvin Simon had been active in talking to the drivers about a union in the industry," and (2) "I told him [Simon] I had to take away his plates because of his union activities " On the witness stand La Valle affirmed his pretrial affidavit as to (2), above, only after having had his recollection refreshed by the affidavit, and twice testified that at the time of Simon's discharge he was not aware that Simon had engaged in union activities, contrary to (1) above, even after having "refreshed his recollection." In any event, even if, contrary to the fact, La Valle were found to be a credible witness, his further testimony to the effect that neither of Respondent's officials ever told him or in any way led him to believe that union activity had anything to do with Simon's termination, coupled with the fact that the conduct and statements of La Valle, an employee and not a supervisor, cannot be attributed to the Respondent, would preclude a finding of legal responsi- bility on the part of the Respondent for any statement by La Valle to Simon at the time of the latter's discharge. With respect to the union activity asserted by the General Counsel as the basis for the Respondent's discharge of Simon, the record discloses that on the Sunday before his Friday discharge , Simon accompanied his father at the latter's suggestion, to a union meeting on Long Island , which was attended by some 20 to 25 other drivers, none of whom worked for the Respondent . During the following week Simon dis- 4 There is neither an allegation nor evidence of any independent 8(a)(1) conduct on the part of the Respondent. 5 Leo Gold, whom the Respondent had intended to call as a witness, became ill just prior to being called and, accordingly, did not testify. For reasons hereinafter expressed, however, concerning a lack of Respondent's knowledge as to Simon's union activities, I find that these words by Gold had reference to La Valle's admitted knowledge of Simon's prior discharge for a driving accident 6 Because of the materiality of this testimony concerning Simon's veracity I now reverse my ruling made at the hearing by which I struck Simon's original testimony on this point. CAR TRADERS, INC. 191 cussed the Union with a number of the Respondent's drivers, generally in 3- to 5-min- ute conversations in a nearby restaurant during coffee breaks, and succeeded in get- ting seven signatures on a piece of paper.? Subsequent to his discharge, Simon further engaged in union activity by handing out union cards.8 Notwithstanding the fact that Simon attended a union meeting and thereafter dis- cussed the possibility of a union with other employees, the record contains no direct evidence indicating that prior to Simon's discharge on March 20 either of the Respondent's two officials knew of Simon's activity or, for that matter, of any union activity among the Respondent's employees. Accordingly, based upon the record as a whole, it is apparent that the General Counsel's assertion that Simon was dis- charged because of his union activity must rest, if at all, upon an inference that the Respondent had such knowledge. The facts do not appear to warrant the drawing of such an inference. Thus, Simon, himself, first learned of the union meeting in his own home on the morning of the Sunday during which it was held; the meeting was held, according to Simon, "someplace" on Long Island, certainly some distance from the Respondent's place of business in the Bronx; Simon's discussion of the Union with employees during the following week took place away from the Respond- ent's business, and admittedly never in the presence of any of the Repsondent's offi- cials; 9 Simon admitted that he at no time spoke to anyone in a supervisory capacity concerning the Union and that at no time was there any indication that the Respond- ent knew that he was engaged in union activity. The one conduit through which it might be inferred that the Respondent became aware of Simon's activity could have been La Valle. La Valle, although testifying that neither Cooper nor Gold ever gave him any reason to think that the decision to discharge Simon was based upon union activity, cannot be believed, as above reflected. Apart, however, from my refusal to credit La Valle generally, in view of the fact that La Valle was a close friend of Simon who admittedly recommended his hire because of such friendship and without apprising the Respondent of his driving record, I deem it rather unlikely that, had La Valle himself become aware of Simon's union activity, he would have communicated such awareness to the Respondent's officials Finally, although Cooper admitted that at some point of time he had heard rumor of "some union activity on the street" (such reference being to other used auto dealers in the area), I credit his testimony to the effect that he was unaware of any union activity in his operations. Nor, under the circumstances peculiar to this case, do I subscribe to the often imposed theory of imputing knowledge to the Respondent based upon the size of its operations. Unlike the customary small business, the Respondent's is unique in that, because of the nature of the operations described above, there appears to have been little, if any, day-to-day communication between the Respondent's two officials and its drivers.10 Thus, in the absence of a showing of opportunity under the usual employer-employee relationship, coupled with the fact that the record is completely void of evidence of union animus on the part of the Respondent, I do not here impute employer knowledge on this ground. For the above reasons, and based upon the credible evidence as a whole, I find an inference unwarranted that the Respondent had knowledge of Simon's union activity. Accordingly, in the absence of such a finding, it must be concluded that the General Counsel has failed to prove by a preponderance of the credible evidence unlawful discrimination as to Melvin Simon. Thus, I find and conclude that, in discharging Melvin Simon on March 20, the Respondent has not engaged in conduct violative of Section 8(a) (3) and (1) of the Act. 7 This paper, introduced into evidence as "General Counsel's Exhibit No. 4," has no caption, no date, and was never turned in to the Union by Simon. Contrary to Simon's testimony, a driver witness for the General Counsel credibly testified that the signing of the petition reflected an interest in a union rather than an intent to join the Union 8 Simon first testified that he handed out cards during the week after the union meeting, and then refuted this by testifying that he handed out the cards after he was discharged 0 To the extent that Simon would have it believed that Cooper possibly could have over- heard his union discussion with employees in the University Food Shop where Cooper was "sometimes" sitting "a table away," I find such not to have occurred, particularly in view of Cooper's credible testimony that he rarely frequented the University Food Shop and never saw Simon engaged in discussion there with other employees In con- trast to Simon and La Valle, Cooper, whom I consider to have been a forthright and honest witness, testified throughout in a most convincing manner. 30 For example, Cooper testified that, during the 3 weeks that Simon was employed, he had never had a conversation with Simon. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Car Traders, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters, Chauffeurs, Warehousemen, and Production Workers, Local 424, Independent, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in any unfair labor practices as alleged in the complaint. RECOMMENDED ORDER It is hereby recommended that the complaint be dismissed in its entirety. Donald H. Parsons and James C. Holmes, d/b/a the Parsons In- vestment Company and Local 79, Building Service Employees' International Union, AFL-CIO, Petitioner. Case No. 7-RC- 6490. April 27,1965 DECISION ON REVIEW AND DIRECTION OF ELECTION On October 22, 1964, the Acting Regional Director for Region 7 issued a Decision and Order in the above-entitled proceeding, dismiss- ing the petition on the ground that the requested unit confined in scope to certain employees employed at one of the Employer's two office buildings was not appropriate. Thereafter, the Petitioner, in accord- ance with Section 102.67 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, filed with the Board a timely request for review of such Decision and Order on the ground that the Acting Regional Director erroneously applied Board prece- dent in concluding that the requested unit was inappropriate. The Employer filed an opposition to the request for review. The Board by telegraphic Order dated November 19, 1964, granted the request for review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in con- nection with this case to a three-member panel. [Chairman McCulloch and Members Brown and Jenkins]. The Board has considered the entire record in this case with respect to the Acting Regional Director's determination under review, includ- ing the positions of the parties as set forth in the request for review and the opposition thereto, and makes the following findings: The Employer, a Michigan partnership, owns the Ford Building and the Dime Building in Detroit, Michigan. The two office buildings are managed by the Lewis and Ford Company, a property manage- 152 NLRB No. 14.