Crystal Tire Co.

CRYSTAL TIRE CO. 563 Crystal Tire Co. and Automotive , Petroleum and Allied Industries Employees Union, Local 618, affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America. Case 14-CA-3925. possible economic consequences of unionization, but were threats of economic loss to employees if the Union was selected as bargaining representative. Accordingly, we find that by these statements Respondent further violated Section 8(a)(1) of the Act. 2 June 19, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On January 3, 1967, Trial Examiner Melvin Pollack issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and Respondent filed exceptions to the Decision and supporting briefs. 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. 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 exceptions, the briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner with the following modifications: The Trial Examiner found that Respondent had not violated Section 8(a)(1) by engaging in the following conduct: President Bauman's statement to employees Lemuel and Elmer Massa that, if unionized, Respondent would have to stop work on its new recap shop, Respondent could not keep all of its employees if it had to pay union scale, Respondent would have to shutdown, Lemuel and Elmer Massa should join their brother at the Chrysler plant if they wanted a union, they would be hurt by the Teamsters contract, Respondent could not pay overtime at Teamsters rates, and Respondent would have to "cut everybody to 40 hours" if it had to pay Teamsters rates. The Trial Examiner concluded that these remarks amounted to "a permissible expression of ... views on" the "possible economic consequences" of having to deal with the Teamsters. We disagree with the Trial Examiner's conclusion. In the context of Respondent's other unfair labor practices, these statements by President Bauman, fairly understood, were not mere predictions of the ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Crystal Tire Company, Crystal City, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete 1(b) of the Trial Examiner's Recommended Order and substitute therefor: "(b) Threatening employees with discharge, with changes in their terms of employment, reduction in working hours, closing down the store, or other reprisal, because of their organizing activities." 2. Delete the second indented paragraph of the notice attached to the Trial Examiner's Decision and substitute therefor: WE WILL NOT threaten employees with discharge, with changes in their terms of employment, reduction in working hours, closing down the store, or other reprisal, because of their organizing activities. ' The Trial Examiner excluded James Bauman, the son of President Bauman, from the unit because he enjoys special status Member Brown would also exclude James Bauman, but on the ground of his family relationship See fn . 4 of Dan Howard Mfg Co , and Dan Howard Sportswear, Inc, 158 NLRB 805, and cases cited therein s Wausau Steel Corporation, 160 NLRB 635 , enfd 377 F.2d 369 (C A 7). Chairman McCulloch would not find a violation of Section 8(a)(1) of the Act in Bauman's statement to the Massas that they could join their brother at the Chrysler plant if they wanted a union. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MELVIN POLLACK, Trial Examiner: This case was heard before me at St. Louis, Missouri, on September 19, 20, 27, and 28, 1966 , pursuant to a charge filed on March 21, 1966, an amended charge filed on April 15, 1966, and a complaint issued on May 5, 1966. The complaint presents questions as to whether Respondent violated Section 8(a)(1) of the Act by interfering with, restraining, and coercing its employees in the exercise of their rights of self-organization, and whether Respondent violated Section 8(a)(3) and (1) of the Act by discharging an employee in order to discourage membership in the Charging Party, herein called the Union. 165 NLRB No. 82 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record,' including consideration of briefs filed by Respondent and the General Counsel, and upon my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Missouri corporation, maintains an office and place of business at Crystal City, Missouri, where it is engaged in the manufacture, sale, and distribution of reconditioned automobile, tractor, and trailer tires and related products. During the year ending December 31, 1965, a representative period, Respondent sold and distributed products whose gross value exceeded $50,000, and in the same period bought more than $50,000 worth of commodities from sources outside Missouri. I find, as Respondent admits, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of Events In addition to office and storage areas, Respondent maintains a salesroom, a service department for the repair and changing of tires, and a shop for the recapping of tires. It had about 14 employees, exclusive of office clericals, when the Union started an organizing campaign in March 1966, following a telephone call from recap shop employee Lemuel Massa and service department employee Leroy White. Lemuel Massa and his brother Elmer, a service department employee, signed cards on Wednesday, March 16, 1966,2 designating the Union as their collective- bargaining representative. Their brother, Clinton, a part- time employee in the recap shop, signed a card the next day.3 On Thursday evening, March 17, Lemuel and Elmer Massa , White, recappers William Middleton and Leonard Moreland, and service department employee William Cox met at Cox's house with Edward Struckman, an assistant business representative of the Union. White, Cox, Middleton, and Moreland signed union cards during the course of this meeting. Struckman said he had "a majority i The General Counsel and Respondent have filed motions to correct the record Respondent has also filed a motion objecting to three changes proposed by the General Counsel. As noted hereafter, my findings are not affected by the disputed testimony I therefore shall permit the disputed testimony to stand as submitted by the reporter and otherwise grant the motions to correct the record. R All dates are in 1966, unless otherwise noted 3 Clinton Massa was laid off about noon on March 18. Respondent had hired a full-time recapper, Orville Casto, the day before Casto was to report for work on Monday, March 21, but actually reported a day later. 4 Respondent contends that the four cards signed at the meeting were invalid because Struckman represented that the cards would be used only to obtain an election and that employees who failed to sign cards during the Union's organizing campaign of the cards" and would send a letter "asking for recognition" to Respondent's president, Russell Bauman, the next day. He added that the cards would be used to obtain a Board election if Bauman refused to recognize the Union.4 About 8 a.m. on Friday morning, March 18, Leroy White and Elmer Massa asked driver-salesman Alfred Buese to sign a union card. Buese said he would not sign a card because he was going to resign that morning to take another job. Shortly thereafter, Buese spoke to President Bauman in his office and resigned, effective March 26. About 9:30 a.m., Bauman called Elmer Massa into his office and asked him if he had "started the union business." Massa said "No," and Bauman then asked if it was White. Massa replied that he "didn't think Leroy had sense enough to start a union." Bauman asked Massa what he thought of the Union and Massa replied that he would be "a damned fool" not to believe in a union that "was trying to get in." Bauman said he was "going to let Leroy go that day." Bauman left the store after this conversation with Elmer Massa and drove his car to an automobile body shop to arrange for the painting of a truck and to drive back driver- salesman Milburn Halbrook, who had driven the truck to the body shop. On the trip back to the store, Halbrook told Bauman that it was "none of [his] business" but that "the boys in the back are talking about going union" and "they tell me I have to go union." Halbrook said he was "not interested in going union" and Bauman, who was "flabbergasted" according to Halbrook, said that he believed Halbrook would not have to go union because he was a salaried employee. After returning to the store about 11:30 a.m., Bauman told Elmer and Lemuel Massa to report to his office. As the brothers approached Bauman's office, Elmer told Lemuel that Bauman was going to fire White because he thought White started the Union. According to the Massas, Bauman opened the conversation in the office by asking the brothers if they were trying to "sell [him] down the river" and telling them to join their brother, Clinton, at the local Chrysler plant if they wanted a union. Showing the brothers "papers" on profits, he said that he could not afford "to go for a union," he could not "keep all the help" if he had to pay union wage rates, he would not be able to build "his new [recap] shop across the street," and he would have to shut down. Lemuel Massa complained that he had to work "50 hours a week for a hundred dollars" and Bauman asked him, "What would it take, a hundred dollars for about 40 hours?" Lemuel replied that it would not be fair to "White and the other boys outside" to take it. Bauman said "It would be fair." He also said that White would have to pay the Union 's regular initiation fee of $100 for service department employees and $150 for recap shop employees rather than a special initiation fee of $10 Except for Middleton who testified that he understood Struckman to say that the cards would be used for an election, but could not recall whether Struckman said that was the "only" purpose of the cards, the employees present at the meeting corroborated Struckman's testimony that he said he would send a letter to Bauman requesting recognition The employees also credibly testified that Struckman said that the initiation fee for all persons employed before the Union came in would be $10 and that the Union's regular fee would apply only to persons hired thereafter. I find that the four cards signed at the meeting were valid union designations N.L R B. v. Irving Tattel, et al., d/b/a I Tattel and Son, 261 F 2d 1, 4 (C.A 7), cert. denied 359 U.S 944. CRYSTAL TIRE CO. was through "after today" and they could "take that for what it was worth." About 1:30 p.m., Lemuel Massa told White that he was going to be fired and described the conversation in Bauman's office. About 2 p.m. Bauman asked White to come into his office. White testified that Bauman told him in the office that he was reducing his work force to 12 men as of "this evening" and that he was laying White off because he was going to send a lot of his work to Goodyear and was "just not going to have the work in the service department." According to Bauman, he told White before discharging him, "Leroy, we are not kicking it off very good," that Respondent had "problems everywhere," and that it had been forced to send recap work to Goodyear. About 6 or 6:30 p.m., Elmer Massa was waiting in the service department for a ride home with either his brother Lemuel or Leonard Moreland. Bauman told him at this time that if the employees wanted a union, they ought to get the Glass Workers Union, he would agree to a 3-year contract with the Glass Workers, but he could not afford Teamsters wage rates and would have to "cut everybody to 40 hours" if he had to pay those rates. Massa said that all the employees should be asked about the Glass Workers and Bauman replied that there would be a meeting. Lemuel Massa and Leonard Moreland came by, and Bauman remarked that he had been on the phone all afternoon and added, according to Moreland, "I don't know who told you guys to get a union but if you are going to get a union you ought to get the Glass Workers ... you can settle the disputes close and I won't have to be running back and forth to St. Louis." On Saturday morning, March 19, Bauman received a letter from the Union in which the Union stated that it had been designated collective-bargaining representative by a majority "of the employees in your company coming under our jurisdiction" and asked for a collective-bargaining meeting. According to Bauman, he thereupon called the Glass Workers Union and spoke to two office employees. He said he was being unionized, knew nothing about unions, and wanted help. He was asked if the employees had signed cards and said he did not know. He was advised that the matter would be turned over to President Beighle of the Glass Workers. He was also asked "who they could contact up there." He gave the names of Salesman George Holt, Foreman Courtaway, and recap employee Middleton.5 About 9 a.m., Monday, March 21, Paul Courtaway, foreman of the recap shop, told Lemuel and Elmer Massa, William Middleton, Leonard Moreland, and Oscar Baudandistle-a part-time employee in the recap shop-that he had a luncheon date with a representative of the Glass Workers Union. After lunch, he told these same employees that he "had set a meeting" for them that evening at the Glass Workers hall in Festus, Missouri. Lemuel Massa said he "didn't want to go" but Courtaway said, "Well, you have to go." Lemuel Massa replied that he had already chosen his union and had no interest in the Glass Workers, but that he would go to the meeting that evening "if everybody else goes." Moreland testified that Courtaway asked him twice that Monday if he was going to the Glass Workers' meeting and that he told Courtaway "no" each time. Cox testified that about 2 p.m., Courtaway told him to go to the Glass Workers' meeting and' that he replied he "didn't have to be there." Elmer S Bauman was taken sick that afternoon and remained away from the store for about a week. 565 Massa testified that Courtaway told him "Lem and the boys in the cap shop" were going to the Glass Workers' meeting and that he said, "If everybody else is going, I will go too." Courtaway some time later, in Cox's presence, said to Elmer, "What the hell you mean, you ain't going, you said you was going." Elmer replied "Bill [Middleton] ain't going and I ain't going either." B. Analysis and Conclusions 1. Interference, restraint, and coercion Elmer Massa testified that President Bauman asked him on Friday morning, March 18, whether he had "started the union business" and, upon his denial, asked him if it was White. Massa further testified that Bauman told him that he was going to discharge White. Both Elmer and Lemuel Massa testified that Bauman told them later that morning that White was through that day and they could "take that for what it's worth." Bauman places these conversations in the afternoon but acknowledges first asking Elmer Massa to tell him "something" about the "union activities going on" and later asking the Massas whether White was involved in the union activity. He also acknowledges telling them that he was going to discharge White but claims that he explained to the Massas that the union activity put him "on the spot" because he had hired another man and had previously decided that Friday would be White's last day. The Massas impressed me as sincere witnesses and gave consistent versions of their joint meeting with Bauman. I credit Elmer Massa's testimony that Bauman asked him if he or White had started the union activity at the store and told him that he was going to discharge White. I also credit the testimony of the Massas that Bauman did not explain his concern over White's possible involvement in union activity and said they could take White's discharge for what it was worth. Bauman's statement to Elmer Massa that he was going to discharge White followed an inquiry which indicated that Bauman suspected that White was behind the union activity at the store. His similar statement to both Massas concluded a conversation in which Bauman, enter alia, showed his opposition to the Union by asking the Massas if they were trying to "sell [him] down the river" and telling them that he was "really hurt" because they were "doing this behind [his] back." I find from these circumstances that Bauman's statements that he was going to discharge White were calculated to impress on the Massas that White was being discharged for his union activity and therefore were violative of Section 8(a)(1) of the Act. In the setting of these coercive statements, and Respondent's other unlawful conduct set forth below, Bauman's questioning of Elmer Massa concerning his and White's union activity must also be deemed coercive within the meaning of Section 8(a)(1) of the Act. I do not find, however, that Respondent violated this section of the Act by Bauman's remarks to the Massas that, if unionized, he would have to stop work on a new recap shop, could not keep all his employees if he had to pay union scale, and would have to close down. Bauman made these remarks in the context of a claim that Respondent could not afford union wage rates and sought to prove his claim by showing the Massas "papers" on Respondent's profits. I find that the record does not warrant a finding that Bauman's remarks were other than a permissible expression of his views on possible economic 299-352 0-70-37 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consequences if the Company had to meet anticipated union wage demands. I find, however, a violation of the Act in Bauman's remark to Lemuel Massa-when Lemuel complained about working 50 hours a week for a hundred dollars-"What would it take, a hundred dollars for about 40 hours?" Cf. Ebner Bros. Packers, 146 NLRB 546, 548, 550. I also find that Respondent further interfered with its employees' organizing rights by Bauman's statement to Elmer Massa on the evening of March 18 that he would be willing to sign a 3-year contract with the Glass Workers Union,6 and by the conduct of Foreman Courtaway in making arrangements for the employees to meet with a Glass Workers representative and insisting that the employees attend this meeting.' Bauman testified that he spoke to Glass Workers' office personnel on Saturday, March 19, about the Union' s organizing efforts, asked for "help," and gave the names of Courtaway, Holt, and Middleton as persons to "contact" at the store. Against this background, I consider incredible Courtaway's testimony that he acted entirely on his own the following Monday in arranging and promoting a meeting between the employees and the Glass Workers and find that his activity in support of the Glass Workers was inspired by Bauman. Accordingly, I find that Respondent violated Section 8(a)(1) of the Act through such activity even assuming, contrary to my finding below, that Courtaway is an employee and not a supervisor within the meaning of the Act. 2. The discharge of White Leroy White started to work for Respondent on August 16, 1965, at $1.50 an hour and was raised to $1.60 on January 22, 1966. White participated in the telephone call which initiated the Union's campaign to organize Respondent's employees. He signed a union card at the union meeting on Thursday evening, March 17, and, according to driver-salesman Buese, "did most of the talking" when he and Elmer Massa solicited Buese to sign a union card on Friday morning, March 18. President Bauman later that day asked Elmer Massa if White had started the union activity at the store and told Elmer and Lemuel Massa that White was through and they could "take that for what it's worth."8 As previously found, Bauman's remarks were calculated to give the impression that White was being discharged for his union activity. Bauman discharged White that afternoon, allegedly because Respondent was going to send a lot of its recap work out and therefore was reducing its work force to 12 men. Respondent asserts that White was discharged pursuant to a decision made by Bauman on February 5. Bauman's explanation for the discharge may be summarized as follows: White was "a conscientious boy" and "a good worker" until "the first of the year" when his work "slowed up considerably" and he "was constantly late for work." He was unhappy and Bauman knew "he was looking for another job." He did not have a chauffeur's license and "was reluctant to make service calls." Bauman had to criticize him for sitting down in front of customers while changing tires. On February 5, Bauman overheard White tell a customer "that he wasn't making enough money and that his wife was making more money than he was." Bauman immediately stepped up and told White "if he had anything to tell me about his pay or anything else," he should "take it up with me personally." Bauman "knew from that day on" that he was going to discharge White and did not give him a pay increase "the following week" when he raised Cox's pay from $1.45 an hour to $1.60 and Elmer Massa's pay from $1.60 to $1.82 with a guarantee of $110 a week. Bauman "figured" that he would let White go and transfer Lemuel Massa to the service department as soon as he could find an experienced man to replace Massa in the recap shop. Bauman told various tire dealers that he needed such a man and, on Tuesday morning, March 15, he interviewed and hired a man , Orville Casto, referred to him by a tire dealer. Casto agreed to report for work on Monday, March 21. Clinton Massa had been buffing tires mornings to "help out" in the recap shop while working on a night shift at Chrysler. Bauman laid him off after he finished work at noon on Friday, March 18, and terminated White that afternoon. Bauman moved Lemuel Massa "up to the service department 3 weeks after [he] hired Casto ... about the time people started taking the snow tires off and we started getting busy again." Bauman does not claim that he criticized White for slow work, for coming in late,9 or for failing to get a chauffeur's license. On the contrary, Bauman himself described White as being a good, conscientious worker during the initial months of his employment and the record shows that Bauman gave White a wage increase on January 22.10 I do not believe that Bauman, an alert businessman actively engaged in selling at the store, would have remained silent in the face of slow work or significant lateness by White. I therefore find that White's work was satisfactory up to his discharge on March 18 and that Bauman was not concerned because White did not report for work promptly at 8 a.m. I similarly find from Bauman's failure to criticize White for failing to get a chauffeur's license, that he did not regard this shortcoming as an impediment to White's continued employment. While the record shows that Bauman criticized White 6 In this conversation with Elmer Massa, Bauman repeated his claim that Respondent could not afford to pay union wage rates and said, in effect, that he would have to cut out overtime if he had to pay those rates I find no threat of economic reprisal in Bauman's qualified statement on overtime The General Counsel claims, and Respondent disputes, that Cox testified that Courtaway told him that there would be a meeting at the Glass Workers Union and that he "had to be there " Courtaway admits making arrangements for a meeting with the Glass Workers The testimony of Cox considered in its entirety, and the testimony of Lemuel and Elmer Massa and of Moreland, shows that Courtaway used forceful language in his efforts to get these employees to attend this meeting See In. 1, supra 8 The General Counsel claims, and Respondent disputes, that Elmer Massa testified that Bauman continued by saying he "pitted the one who started the Union." In view of my finding on the record as reported that White was discharged to discourage support of the Union, I consider it unnecessary to explore the matter further and, as noted above, permit the record to stand as reported in this respect 0 Respondent's records show that White generally reported for work between 8 and 8 15 a in . from January 1, 1966, to his discharge on March 18 10 I do not consider it significant that White did not get another raise in February along with Cox and Elmer Massa Cox's raise brought him up to the same hourly rate as White Both Elmer and Lemuel Massa asked Bauman for raises and both got them at the same time CRYSTAL TIRE CO. 567 early in February for talking about his wages to a customer, I find that the record does not support Bauman's claim that he decided at this time to discharge White as soon as he could hire an experienced recap man to replace Lemuel Massa, who would be reassigned from the recap shop to the service department. Bauman's alleged decision to discharge White occurred during the "slow" season for tire sales. Yet White worked for another 6 weeks and Bauman, upon hiring Casto, discharged Clinton Massa and did not transfer Lemuel Massa to the service department as a replacement for White until the "slow" season ended about the first of April. It thus appears that Bauman's need for White's services was no different in mid-March than in early February and that Casto was hired as a full-time replacement for part-time man Clinton Massa rather than as a replacement for Lemuel Massa. In view of Bauman's hostility to the Union, his belief or suspicion that White was involved in union activity, his timing of the discharge, his intimation to Elmer and Lemuel Massa that he was discharging White for union activity, and his unconvincing explanation for the discharge, I find that Bauman discharged White in order to discourage support of the Union. I therefore conclude that the discharge was violative of Section 8(a)(3) and (1) of the Act. IV. THE UNION'S REPRESENTATIVE STATUS The General Counsel contends that the Union represented a majority of Respondent's employees when Respondent engaged in unlawful conduct aimed at destroying support for the Union and that this conduct was such as to warrant a remedial provision requiring Respondent to recognize and bargain with the Union. For the reason stated in the section of this Decision entitled "The Remedy," I agree that a bargaining order would be appropriate if the Union represented a majority of Respondent's employees in an appropriate bargaining unit when Respondent began its course of unfair labor practices. The issue of the Union's representative status was fully litigated at the hearing. For the reasons given below, I find that the Union was the majority representative of Respondent's employees on and after March 17. Respondent employed 14 persons other than office clericals on March 17. The General Counsel contends that an "all-employee" unit is appropriate but would exclude from this unit salesman Holt, recap employees Courtaway and Baudandistle, and Bauman's son , James, a part-time worker. Respondent would exclude store and driver- salesmen from the unit but, if an "all-employee" unit is found appropriate, would include all 14 employees in this unit. Respondent's driver-salesmen sell and deliver new and recapped tires to customers on their routes and pick up worn tires for recapping. They usually do their own loading and unloading of tires at Respondent's store. They are paid a salary plus a commission" but share the same benefits as the hourly paid recap shop and service department employees. As the work of the driver- salesman includes a substantial amount "of manual labor directly related to the flow of materials and products into and out of" Respondent's premises, I find that they have sufficient interests in common with the recap and service employees to warrant their inclusion in a unit with these employees. The Valley of Virginia Cooperative Milk Products Association, 127 NLRB 785. See also Marks Oxygen Company of Alabama, 147 NLRB 228. George Holt was the only full-time store salesman employed by Respondent on March 17.12 The tires he sells at retail are mounted by the service department employees and the tires he takes from retail customers are retreaded by the recap employees. In connection with his selling function, Holt takes tires out of the warehouse and puts them in stock, and also occasionally changes tires in the service department. In these circumstances, I do not consider Holt's sales functions a bar to his inclusion in an "all-employee" unit . Holt, however, is carried on Respondent's payroll as its "store manager" and President Bauman testified that he and Holt had "ultimate authority" over the work in the service department and the recap shop. Holt, like Bauman, assigns work to the service department employees,13 and may direct those employees to stop what they are doing and give priority to another order. He arranges for overtime work and has authority to grant time off and to make adjustments in working hours. Thus, he gave White permission to come in an hour late one morning and he permitted Cox on one occasion to work through his lunchtime so that Cox could leave work early. Unlike the hourly paid employees, Holt does not clock in. His earnings of $150 a week plus commission on sales make him Respondent's highest paid employee. I find that Holt is a supervisor within the meaning of Section 2(11) of the Act and therefore ineligible for inclusion in the unit of store and driver-salesmen, service department employees, and recap shop employees which I find appropriate for collective-bargaining purposes. Courtaway is the working foreman of the recap shop and like Holt is paid a weekly salary of $150.14 He schedules production and working hours in the recap shop, assigns work to the recap employees, determines whether overtime work is necessary, and assigns overtime work. He inspects and criticizes the work of the recap employees. He also has authority to correct their timecards. He does not clock in. He is responsible for keeping up supplies of tread rubber and puts in orders to Respondent's supplier to keep "the inventory at a certain stage." If "an extra large amount" of a particular size of rubber tread is needed, he so advises Bauman who puts in the order. I find that Courtaway has authority to direct responsibly the recap shop employees, and therefore that he is a supervisor within the meaning of Section 2(11) of 11 Driver-salesman Virgil Reinhardt received a salary plus expenses. 11 Driver-salesman Halbrook worked as a store salesman on Saturday and, if not out on his route , also on Friday. 11 The General Counsel contends, and Respondent disputes, that Bauman testified that Holt can "tell the service department employees what to do " Whether or not Bauman so testified, Holt testified that he tells the employees to put tires on a customer's car and Elmer Massa credibly testified that Holt told him what to do See fn. 1,supra. 11 President Bauman and Courtaway each worked 2 days a week on a sales route during January to March 1966, until Bauman hired another driver-salesman, Mathue L. Miller, who reported for work on April 4, 1966 Courtaway was paid a commission on his route sales 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act and ineligible for inclusion in the bargaining unit.'5 Oscar Baudandistle, an annuitant under the social security program, works 3 or 4 hours a day in the recap shop at an hourly rate of $1.25. As he works on the basis of earning no more than the maximum permitted in connection with his social security benefits, I find that he lacks sufficient community of interest with the employees in the unit to include him. Taunton Supply Corp., 137 NLRB 221. James Bauman, a 16-year old high school student, does miscellaneous jobs, such as stacking tires. He works 30 to 40 hours a week during the summer recess and 6 hours on Saturdays during the school year. He is permitted to take time off for school activities, such as student council functions and basketball practice. At the time of the hearing, he took time off on Saturdays to go bowling. As the record shows that he enjoys special status as President Bauman's son, I exclude him from the bargaining unit. See Adam D. Goettl, d/b/a International Metal Products Company, 107 NLRB 65, 67. In view of the foregoing, I find that the bargaining unit on March 17 included recap employees Lemuel Massa, Clinton Massa, Middleton, and Moreland, service department employees Elmer Massa, Cox, and White, and driver-salesmen Buese, Halbrook, and Reinhardt. As 7 of these 10 employees signed union cards on March 16 or 17, I find that the Union represented a majority of Respondent's employees in an appropriate bargaining unit when Respondent committed unfair labor practices aimed at destroying support of the Union. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices , I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As the record establishes that the Union had a clear majority in an appropriate unit when Respondent committed unfair labor practices aimed at destroying support of the Union, I shall also recommend , so that Respondent shall not gain any advantage from its violation of Section 8(a)(1) and (3) of the Act, that Respondent bargain collectively with the Union as the exclusive bargaining representative of its employees.16 In view of the nature of the unfair labor practices committed , the commission by Respondent of similar and other unfair labor practices may be anticipated . I shall therefore recommend that Respondent cease and desist from infringing in any manner upon the rights guaranteed in 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. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 15 During January to March 1966, Courtaway worked in the recap shop 2 or more hours in the morning and left instructions with Middleton, the senior employee, before going on his sales route. Middleton issued the necessary work orders during Courtaway's absence but did not assume Courtaway's other functions . I find that Middleton is not a supervisor under the Act and include him in the bargaining unit. 2. By discharging Leroy White, Respondent discriminated to discourage membership in the Union, thereby engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 3. Respondent's store and driver-salesmen, service department employees, and recap shop employees, excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times on and after March 17, 1966, the Union has been the exclusive representative of the employees in the aforesaid unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following: RECOMMENDED ORDER Respondent Crystal Tire Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating coercively employees concerning union membership, activities, and desires. (b) Threatening employees with discharge because of their organizational activities. (c) Soliciting employees to withdraw their support of the Union by offering wage increases, or by offering to sign a contract with another labor organization and promoting a meeting with that labor organization. (d) Discouraging membership in Automotive, Petroleum and Allied Industries Employees Union, Local 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging employees or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. (e) 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 said Local 618, or any other labor organization , to bargain collectively through representatives of their own choosing, or 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. 2. Take the following affirmative action: (a) Offer Leroy White immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he would normally have earned from the date of his discharge to the date of the offer of reinstatement, less 'ON L.R.B. v. Delight Bakery, Inc., 353 F.2d 344 (C.A. 6); Ptaseckt Aircraft Corporation v. N L.R.B., 280 F 2d 575 (C. A. 3), cert. denied 364 U.S. 933; Editorial "El Imparcial" Inc. v N.L.R.B., 278 F.2d 184 (C.A. 1); N.L.R.B. v. Joe Caldarera, d/b/a Falstaff Distributing Company, 209 F.2d 265 (C.A. 8); D. H. Holmes Company v. N L R.B., 179 F.2d 876 (C.A. 5); Cf. N.L.R.B. v. Flomatic Corp., 347 F.2d 74 (C.A. 2). CRYSTAL TIRE CO. his net earnings during said period (Crossett Lumber Company, 8 NLRB 440), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum, Isis Plumbing & Heating Co., 138 NLRB 716. (b) Notify the said Leroy White if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, 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 security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Bargain collectively, upon request, with Local 618 concerning rates of pay, wages, hours of employment, or other conditions of employment of the employees in the appropriate unit herein found. (e) Post at its place of business in Crystal City, Missouri, copies of the attached notice marked "Appendix."" Copies of said notice, to be furnished by the Regional Director for Region 14, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 14, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith."' " In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 1' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate coercively our employees 569 concerning their union membership, activities, or desires. WE WILL NOT threaten employees with discharge because of their organizational activities. WE WILL NOT solicit employees to withdraw their support of the Union by offers of wage increases or offers to deal with another labor organization. WE WILL NOT discourage membership in Automotive, Petroleum and Allied Industries Employees Union, Local 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, by discharging employees or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization , to form, join, or assist said Local 618, or any other labor organization , to bargain collectively through representatives of their own choosing or 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. WE WILL offer to Leroy White immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may have suffered as a result of our discrimination against him in the manner provided in the Trial Examiner's Decision. WE WILL bargain collectively, upon request, with Local 618 as the exclusive representative of our employees in the following appropriate unit, concerning rates of pay, wages, hours of employment, and other conditions of employment. Store and driver-salesmen, service department employees, and recap shop employees, excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act. CRYSTAL TIRE COMPANY (Employer) Dated By (Representative) (Title) Note: We will notify Leroy White if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1040 Boatmen's Bank Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 622-4167.