Mission Tire & Rubber Co.

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD LeBoe Tire and Rubber Company, d/b/a Mission Tire shall have been certified by the National Labor & Rubber Company and Teamsters Automotive Relations Board as the exclusive collective-bargain- Workers Local 495, International Brotherhood of Ing representative of said employees." Teamsters, Chauffeurs, Warehousemen and Help- 2. Substitute the attached notice for that of the ers of America Administrative Law Judge. LeBoe Tire and Rubber Company , d/b/a Mission Tire & Rubber Company, Employer-Petitioner and Teamsters Automotive Workers Local 495, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , Union- Petitioner. Cases 31-CA-3067, 31-CA-3235, 31-RC-2066, and 3 I-RM-299 January 3, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On January 26, 1973, Administrative Law Judge George H. O'Brien issued the attached Decision in this proceeding.' Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs. Respondent also filed an answering brief and a motion to correct the transcript,2 and the General Counsel filed a motion to reopen the record.3 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions, briefs, and motions, and has decided to affirm the rulings,4 findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified below.5 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified herein, and hereby orders that Respondent, LeBoe Tire and Rubber Company, d/b/a Mission Tire & Rubber Company, Glendale, California, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. Substitute for paragraph 2(c) of the Adminis- trative Law Judge's recommended Order the follow- ing: "(c) Withhold all recognition from United Tire and Retreaders of Mission Tire as the bargaining repre- sentative of any of Respondent's employees unless and until United Tire and Retreaders of Mission Tire ' United Tire and Retreaders of Mission Tire appeared as Intervenor at the hearing 2 Absent objections from any party, Respondent's motion to correct the transcript is hereby granted 4 Absent objections from any party, the General Counsel's motion to reopen the record for the limited purpose of receiving certain documents into evidence is hereby granted. 4 Respondent contends the Administrative Law Judge erred in denying Respondent's motions, made under rule 43(a) of the Rules of Civil Procedure for United States District Courts, to examine all of the Teamsters authorization cards utilized by Stewart to refresh his recollection prior to testifying. In rejecting Respondent's contention, we note that all such cards were introduced into evidence during the course of the hearing, and Respondent was afforded the opportunity to examine the cards and to examine and cross-examine witnesses, including Stewart, with regard thereto We further find no merit in Respondent's contention that it was prevented from presenting a full and complete defense and, therefore, was deprived of due process because the Administrative Law Judge excluded certain testimonial and documentary evidence relating to the 8(a)(2) allegations in the complaint and to Objections 3 and 4 to the election Respondent complains particularly about the General Counsel's refusal to permit, under Sec. 102.118 of the Board's Rules, one of his agents, O'Dwyer, to testify about certain advice he allegedly gave Respondent's employees Such evidence as Respondent sought to adduce could as well have been adduced by Respondent from the employees with whom O'Dwyer allegedly spoke In any event, any advice which O'Dwyer may have given the employees could in no manner have exculpated Respondent from the 8(a)(2) violations found herein We find the General Counsel's refusal to permit his agent to testify was not prejudicial to Respondent 5 In the absence of exceptions thereto, we shall adopt, pro forma, the Administrative Law Judge's dismissal of certain allegations of the complaint We disagree with the Administrative Law Judge's finding that Respon- dent violated Sec 8(a)(1) of the Act through Supervisor Lee's May 5 statement to the effect that Respondent neither would be competitive nor able to remain in business in the event the Union "came in" and made the same demands on Respondent as are contained in that Union's contracts with others In our view, that statement is merely an expression of opinion reasonably based on known economic facts which is protected by Sec 8(c) of the Act In addition, since the evidence to support Objection 3 is predicated solely on that statement, which reasonably could not have interfered with the employees' free choice in the election, we find that Objection 3 is without merit and hereby overrule said objection. Consequently, we reject the Administrative Law Judge's reliance on the foregoing statement as one of the supportive grounds establishing both Respondent's violation of Sec. 8(a)(2) of the Act and the validity of Teamsters Objection 4 which, in and of itself, presents sufficient,cause to set aside the results of the July 12, 1972, election APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated Federal law by interfering with the administration of United Tire and Retreaders of Mission Tire, by discharging an employee for supporting the Teamsters Union, and 208 NLRB No. 12 LEBOE TIRE & RUBBER CO. 85 by attempting to influence employees' choice be- tween the two Unions: WE WILL offer Ivory Stewart full reinstatement and pay him for the earnings he lost as a result of his April 24, 1972, discharge, plus 6-percent interest. WE WILL NOT interfere with the formation or administration of, or contribute support to, United Tire and Retreaders of Mission Tire, or any other labor organization, and we will not recognize United Tire and Retreaders of Mission Tire until that organization is certified as our employees' collective-bargaining representative by the National Labor Relations Board. WE WILL NOT discharge or discriminate against any employee for supporting Teamsters Automo- tive Workers Local 495, or any other labor organization. WE WILL NOT unlawfully interfere with our employees' union activities. LEBOE TIRE AND RUBBER COMPANY, D/B/A MISSION TIRE & RUBBER COMPANY (Employer) consolidated amended complaint alleges in substance that Respondent by discharging Ivory Stewart, by interfering with the formation and administration of United Tire, by contributing support to United Tire, and by coercive interrogation and threats, violated Section 8(a)(1), (2), and (3) of the National Labor Relations Act. The complaint further alleges that, at all times material, Teamsters represented an uncoerced majority of Respondent's em- ployees in a unit appropriate for collective bargaining, and concludes with a prayer that Respondent , inter alia, be required to recognize Teamsters as the exclusive collective- bargaining representative of its employees and to bargain in good faith with Teamsters. Respondent's answer, as amended, denies the commis- sion of any unfair labor practice and avers, as an affirmative defense that Teamsters evidence of representa- tion was procured by a foreman, Michael Chinzi, and is therefore invalid. By a further order of consolidation issued September 12, 1972, two objections by Teamsters to conduct of Respon- dent affecting the results of a Regional Director directed election held July 12, 1972, were placed in issue. Upon the entire record in this proceeding, including my observation of the witnesses, and after due consideration of the posthearing briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, Room 12100, 11000 Wilshire Boulevard, Los Angeles, California 90024, Telephone 213-824-3457. DECISION STATEMENT OF THE CASE GEORGE H. O'BRIEN, Administrative Law Judge: This consolidated proceeding was heard in Lds Angeles, California, on October 11, 12, and 13, 1972. In this Decision LeBoe Tire and Rubber Company, d/b/a Mission Tire and Rubber Company is called Respondent, Teamsters Automotive Workers Local 495, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is called Teamsters, and United Tire & Retreaders of Mission Tire is called United Tire. The complaint, issued June 1, 1972, is based on a charge filed by Teamsters on April 26, 1972. The consolidated amended complaint, issued September 8, 1972, is based on the charge filed April 26, 1972, and on a charge filed by Teamsters July 25, 1972, as amended August 25, 1972. The Respondent is a California corporation with a manufac- turing plant, warehouse, and principal office in Glendale, California, and a retail store in Stanton , California. It annually purchases and receives at its Glendale plant and Stanton store goods valued in excess of $50,000 which are shipped directly from points located outside the State of California. Respondent is an employer within the meaning of Section 2(2) of the Act engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Teamsters and United Tire are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES AND THE CONDUCT ALLEGED TO HAVE AFFECTED THE RESULT OF ELECTION A. The Issues in Cases 31-RC-2066 and 31-RM-299 Pursuant to a Decision and Direction of Election issued by the Regional Director for Region 31 on June 16, 1972, an election was held on July 12, 1972, with the following result: Teamsters 9 United Tire 23 No union 2 Challenged ballots 2 Void ballot 1 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Objections to conduct of employer affecting the results of election were filed by Teamsters on July 18, 1972. In his order consolidating cases issued September 12, 1972, the Regional Director found: The issues raised by Objections 3 and 4 are related to certain allegations . . . in the consolidated amended complaint . . . and involve the same evidence .. . and can best be resolved by a hearing... . The objections on which I am required by Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, to report (all other objections having been withdrawn) are: Objection 3. Between the date of the filing of the petition and the day of the election the employer threatened employees with reprisals in connection with their union activities and sympathies. Objection 4. Between the date of the filing of the petition and the day of the election the employer created ... United Tire & Retreaders of Mission Tire, and coerced its employees to accept United Tire & Retreaders of Mission Tire as their collective bargain- ing agent. The fact of consolidation and the fact that evidence material and relevant to the issues raised by the complaint and answer is before the Board in this consolidated proceeding invoke two issues not normally present in representation hearings. These are: (a) whether Teamsters "evidence of representation" was obtained through the active participation of a supervisor; and (b) whether Respondent, prior to filing its petition on June 2, 1972, had received a request for recognition as collective-bargaining agent from either Teamsters or United Tire. B. The Issues in Cases 31-CA-3067 and 31-CA-3235 The General Counsel asserts that Ivory Stewart was discharged on Monday, April 24, 1972, because, during the previous week, he solicited the signatures of his fellow employees on cards authorizing Teamsters to represent them in collective bargaining. Respondent answers that it was, unaware of any such activity by Stewart, who was discharged for the sole reason that his work performance was less than satisfactory. The date of April 24 was selected for discharge because Respondent then had a full complement of employees, Respondent was aware that Stewart was seeking work elsewhere as an upholsterer, and Respondent decided that the employment relationship should be terminated at its own convenience, rather than at the convenience of the employee. Specific acts of assistance to United Tire are alleged to be: (a) a promise by Owen Lee, plant manager, to employees Michael Chinzi and Roy Trujillo on May 5, 1972, that Respondent would bargain with the employees if they formed their own organization; (b) providing blank cards to United Tire organizer Michael Chinzi on May 8; (c) assistance by Owen Lee to United Tire organizers, Chinzi and Trujillo, in the solicitation of authorization cards on May 8; (d) granting time off during working hours on May 8 to Chinzi and Trujillo for United Tire business; and (e) promising on July 6, 1972, that Respon- dent would bargain with United Tire if it won the July 12 election. The General Counsel contends and Respondent denies that in April 1972 Alward Daley was a supervisor within the meaning of Section 2(13) of the Act. Respondent contends and the General Counsel denies that Michael Chinzi was, between March 1 and May 12, 1972, a supervisor within the meaning of Section 2(13) of the Act. Other acts of unlawful interference alleged in the complaint and denied in the answer are: (a) interrogation of Chinzi by Lee concerning his union sympathies in March 1972; (b) a simultaneous request by Lee of Chinzi to engage in surveillance of the union activities of his fellow employees; (c) an announcement on Tuesday, April 24, 1972, by Daley to employees Chinzi, Trujillo, and Krippner that Stewart had been discharged for union activities; (d) a statement on May 5, 1972, by Lee to Chinzi and Trujillo that Respondent would close the plant if employees selected Teamsters as their representative; and (e) a statement on July 12, 1972, by Lee to employee Rodriguez that if Rodriguez voted for Teamsters he would be given no more work by Respondent. C. Respondent's Operation Respondent is a corporation engaged in the manufacture and sale of retreaded tires and the sale of new tires and related items. Its plant on San Fernando Road in Glendale, California, embraces a large yard and four or five buildings. Worn tire casings are dropped off by Respondent's truckdrivers in the yard "up front." The retreading process is performed in the main plant. Retreaded tires are stored in the main warehouse. New tires and accessories are stored in Warehouse 1. New tires and retreaded tires are stored in Warehouse 2. Retreaded tires are stored in Warehouse 3. Jules LeBoe has been the head of the business since 1929 and has been president of the corporation since its formation in 1967. LeBoe spends all of his time in his office. Owen Lee is secretary-treasurer of the corporation and plant manager. Lee spends 95 percent of his time in the plant and in the yard. The general manager, Red Abrun, spends most of his time on the road, engaged in selling Respondent's product. D. Supervisory Status of Alward Daley and Michael Chinzi Daley did not testify. 1. The testimony of Owen Lee Daley was absent on sick leave from October 1971 to and through March 1972. Prior to October 1971 Daley's job title was foreman. He directed the working forces at the plant; be laid out job duties for the employees and shifted men around "as was indicated by who came to work that day;" he had authority to grant time off from work and to LEBOE TIRE & RUBBER CO. excuse tardiness; he recommended discipline; he had the power to suspend employees and to administer oral reprimands; and he reported to Lee on the progress of employees and had the power to recommend hiring and discharge. When Daley left in October of 1971 all of his duties and responsibilities were assigned to Michael Chinzi. In March of 1972, It was assumed that when Mr. Daley returned, he would assume his position as foreman that he had prior to his leaving. I so informed Mr. Chinzi. During the next couple of days, there seemed to have been some confrontations between the two. To try to keep peace- and harmony in the group, we decided that it might be better if Mike continued in his capacity as foreman due to the fact that he did tell me that he would be leaving shortly and Mr. Daley would work up front with me. When Chinzi left on May 12, 1972, Daley returned to his former job as foreman. In March 1972, in contemplation of Daley's return, a list of names was prepared showing "the new job status that we were going to do based on our increased production which we would assume would start the following week." On this list Daley was designated as foreman and Chinzi as "working in back as a warehouseman and leadman." Chinzi's foreman duties were to be taken over by Daley. The changes contemplated by the list were never imple- mented, and Chmzi continued to perform his duties as foreman until he left the Company. 2. The testimony of Michael Chinzi Chinzi was employed by Respondent for about 3-1/2 years. He performed Daley's duties during the 6 months of Daley's absence, and ceased to perform those duties on Daley's return. One man was discharged on his recommen- dation. On two occasions he recommended wage increases and both were granted. He reported once or twice a week to Daley on the performance of the men he supervised. After Daley returned to work Chinzi "didn't fire anybody." About 2 weeks after Daley's return, Chinzi was shown a list of names whereon Daley was shown as foreman and Chinzi was shown as order picker. On one occasion after Daley's return Chinzi complained to Lee that he was continuing to perform Daley's work, but was not being paid for it. In a pretrial affidavit executed May 1, 1972, Chinzi stated: I am foreman of the plant at Mission Tire and Rubber Company. When Owen Lee was on vacation in February and the first of the year I took over for him. I scheduled the runs for the truck drivers and others. I do everything in the plant. I am responsible for controlling the work that is done. When the men work weekends, Owen does the giving out of overtime. Al Daley is called foreman also but he is absent from the job a lot and I take over for him. I sent Jay McVey home a couple of months ago. He 87 was insubordinate to me. I told him to punch out and go home. Owen countermanded my orders. Jay stayed for three hours and then went home. I have sent Sam Young home and Owen kept him on. 3. Other evidence relating to supervisory status of Daley and Chinzi On May 9, 1972, Respondent delivered to the Board's Regional Office a "List of Employees." The document is typewritten, with 36 names and job descriptions in two columns, double spaced. Two additional names and job descriptions are interlined. These are: Mike Chinzi Warehouseman Alward Daley Shipping Clerk On the day of the preelection hearing in the representa- tion cases, June 6, 1972, counsel for the employer and counsel for Teamsters agreed that they would not litigate the supervisory status of Daley, but would defer that question to the challenge procedure. Daley did vote on July 12, 1972, and his vote was not challenged. Chinzi, although he was not employed by Respondent on either June 6 or July 12, acted as observer for United Tire at the July 12 election. Krippner testified that when Daley returned to work, and while Krippner was employed "up front" in the main warehouse, he was told by Lee: ... that Al was now our foreman and Mike was back in the warehouse. He was a warehouseman again. You see, Mike had been the foreman and when Al came back, Al was foreman. After Krippner's transfer to Warehouse 3 on April 24 or 25, 1972, Chinzi reported to Lee that Krippner's work was satisfactory. Thurmond Duke was hired in March 1972. Shortly after he started to work he overheard a conversation between Lee, Chinzi, and Daley and "they said that Mike would be the foreman in the back and Al would be the foreman up front." On May 8, 1972, John Eugene Howe signed a card for United Tire at the request of Chinzi . Howe testified that he signed "because [Chinzi ] was more or less the boss around there" and Howe did not want to get in trouble. 4. Conclusions as to the supervisory status of Daley and Chinzi The dispersal of the work force of more than 35 persons, the variety of their duties, and the fact that many are short- term employees are indicative of the need for some intermediate supervision. The mutually corroborative testimony of Chinzi and Lee establish that from October 1971 to some date in March 1972 Chinzi was a supervisor within the meaning of Section 2(11) of the Act . He had the power to "effectively recommend" in the exercise of "independent judgment" the "transfer," the "reward," and the "discipline" of employees, and "responsibly to direct them." The testimony of Lee, corroborated by Krippner and Duke, establishes that after his return Daley per- 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formed these supervisory functions "up front." Lee's testimony that Chinzi, after the return of Daley, continued to perform these functions "in the back" is corroborated by Chinzi's pretrial affidavit. It is most unlikely that employ- ees in the back, particularly the inexperienced Krippner, would have been left without any direct supervision. I find that from and after April 1, 1972, Chinzi was a supervisor within the meaning of the Act, over employees in the back of Respondent's plant, and that Daley was a supervisor within the meaning of the Act over employees "up front." E. Sequence of Events Ivory Stewart started to work for Respondent in September 1963. In 1970 through January 23, 1971, he attended upholstery school in the evening after work. In June 1971, he injured his back and was granted sick leave by LeBoe. When he returned to work in September, he was told by LeBoe that he should report half an hour later than the other employees and remain on the clock for 8 straight hours. LeBoe said: You are very valuable around here. We need you because you know where most everything is . . . the orders have to get out . . . eat if you can. Most of Stewart's time was occupied by moving the retreaded tires from the main plant to Warehouse 3 and stocking them on racks. He was frequently called away from this work to mount tires for customers, or to locate a specific tire, or to perform the work of some absent employee. He either brought his own lunch, or bought it at a hamburger stand across the street. He did not punch out during these brief absences from Respondent's premises. On some date in March 1972, Lee, having heard rumors that some employees were discussing the feasibility of joining some union, asked Chinzi to let him know what was happening, if anything. Chinzi told Lee not to be concerned, that no one was going to sign for the union. Shortly after Daley's return, probably during the first week in April: The guys in the yard were getting the heavy work load, and all of them started griping and when it gets hot everybody gets angry and so everybody got angry and Ivory said he knew somebody in the Union and [Chinzi I and Roy [Trujillo] delegated the thing to Ivory and Ivory carried the thing from there. During the second week in April, Stewart asked Lee for a raise. Lee denied the request on the ground that Stewart was then being paid more than the top of the scale and Lee's belief that Stewart "was not doing his job 100%." During the same period, Lee told Stewart that he wanted four racks stocked per hour, or 420 tires in 7 hours. When Stewart reminded Lee that he had other duties to perform, Lee told him to do the best he could. Lee testified, "I felt in some instances he was right." On Wednesday, April 12, after work, Stewart telephoned the union office, and was told that he should telephone the business agent, Mr. Henderson, the following week. On Friday morning, April 14, Stewart received permis- sion from LeBoe to leave early on personal business. Stewart failed to punch out when he left shortly before 2:30 p.m. At 2:30 p.m. LeBoe called Stewart on the loudspeaker to mount tires for a customer. When Stewart did not respond, LeBoe sent Lee in search of Stewart. He did not tell Lee that Stewart had permission to leave early. On Monday, April 17, LeBoe reminded Stewart that he should always punch out when leaving the plant and wrote in Stewart's departure time as 2:30 p.m., Friday on the timecard. At noon on Monday, April 17, Stewart called Henderson from a pay telephone at the hamburger stand. That night, Henderson called at Stewart's home, gave him blank application for membership cards, told Stewart to return the cards to him after a majority had signed, and Henderson would take it from there. On Tuesday morning, April 18, Stewart showed the cards to Chinzi, stating: "that you would have to be a Teamster man in order to work there. You would have to be a union man in order to work." Chinzi then told Stewart to remain in Warehouse 3, and that Chinzi would send employees to him one by one to sign the authorization cards. In approaching the individual employees Chinzi said, in substance: Do you - want to do something about organizing yourselves down here and to get better pay and better safety conditions and everything. Just sign a card with Chinzi personally escorted to Stewart the following card signers: Joe Godinez, Mike Cortez, Manuel Rentena. Chinzi was present when cards were signed by Roy Trujillo, Bob Krippner, Gary Petty, and John Allen. Four other employees were told by Chinzi to see Stewart in the warehouse. These were Dave Rominez, John Howe, Richard Brown, and one other. Chinzi heard Stewart tell employees "that they would have to sign or lose their jobs." In that one day, Tuesday, April 18, 17 employees signed cards at the door of Warehouse 3 and returned them to Stewart. On one of the following days Stewart spoke to Felix Delgado and Rubin Delgado, up front in the main plant. Each took a card home with him, signed the card at home and returned it to Stewart on Friday, April 21. On some evening during the same week in the parking lot after work, Refugio Delgado signed a card and returned it to Stewart. On Thursday, April 20, Lee reminded Stewart that he was not stocking enough tires. Lee testified, "essentially we said the same things that I said in the prior meeting." On the afternoon of Monday, April 24, Stewart was called to LeBoe's office. LeBoe told Stewart that "things were slow and he was going to have to lay somebody off." LeBoe wrote out a check, which he said was pay for a full week and handed it to Stewart. There is no evidence that Stewart communicated with anyone before leaving the plant. On Monday, April 24, Teamsters filed the petition docketed as Case 31-RC-2066. On Tuesday, April 25, Robert Krippner was escorted to Warehouse 3 by Daley and informed that he would be doing Stewart's job. There Chinzi, in the presence of LEBOE TIRE & RUBBER CO. Krippner and warehouseman Roy Trujillo, asked what happened to Stewart. Daley replied that Stewart had been fired. When either Trujillo or Chinzi asked "Why?," Daley replied: "that he had told Ivory to keep things quiet and that was the reason he' was discharged because he was passing out union cards." On Monday, May 1, a Board agent took statements from, inter alia, Chmzi and Krippner as part of his investigation of Case 31-CA-3067. The events of Thursday, May 4, are graphically and accurately summarized by Chinzi as follows: We just generally were mad about the work load that was left between me and Roy in the stock room and me and Roy got in a little bit early in the morning and we kind of had a bad night and we were at each others throats and so Owen came between us and we all went to the tube room and me and Roy just started telling Owen and laying it on the line about the working conditions and the sanitary conditions and the work loads on everybody and Owen was trying to be the mediary between us. He said if we didn't like it to get out and we got out. We walked to the office and Owen said to put them down as quitting and we said "No, because you said to get out" and we settled down and Al Daley walked into the office and we all then went back to the tube room to talk it over some more. In the tube room, there was further discussion of workloads, pay, sanitary conditions and hazards. Trujillo asked Lee why Stewart had been fired. When Lee answered, "He wasn't doing his work, was he?" Trujillo remonstrated: ... it was a pretty rotten deal that they handed Ivory, because Ivory was doing his job and helping everybody else out at the same time ... they would be calling up in the middle of anything he was doing and there was no way possible that he could be doing his job he was required to do. On Friday morning, May 5, there was a conference in LeBoe's office. Present were LeBoe, Lee, Abrun, Daley, Chinzi and Trujillo. In the course of the meeting Lee stated that, based on his knowledge of Teamsters contracts, it would be impossible for Respondent "to pay those types of wages and remain competitive and stay in business." He also said that if the Teamsters came in and made those demands Respondent would have no alternative, it would have to close down the plant. Chinzi then asked, "Why don't we get our own union in here?" Lee replied that if an independent union were formed and if it won the Labor Board election, Respondent would negotiate with it. Lee testified: I explained to them most emphatically that we in no way could have any dealings or support either union, either Teamsters or employees' unions and we would offer them no assistance or no help or no advice or nothing in this way whatsoever. Chinzi understood Lee's remarks about Teamsters to mean, "They would have to close down the plant if the 89 Teamsters came in." Trujillo understood Lee's meaning to be, "They would padlock the place if the Teamsters came in." When Chmzi asked if he could have a meeting on company property, Lee denied the request on the ground that he would then be required to grant the same privilege to Teamsters. Trujillo restated his opinion that Stewart had received a "dirty deal." Lee answered that Stewart would have his job back, and LeBoe agreed. Following the meeting in LeBoe's office, Chinzi tele- phoned the Board agent whom he had met on May I and asked "How do we go about organizing our union?" The Board agent replied that he should get authorization cards signed and have them checked at the NLRB. Chinzi then prepared a notice calling a meeting at his home at 7:30 p.m. that night. Trujillo translated the notice into Spanish, and both notices were posted on Respon- dent's bulletin board. On Friday evening, May 5, 31 of Respondent's employ- ees met at Chinzi's home. Chinzi presided. There was a general discussion of sanitary conditions, pay raises, starting pay, piecework, hazards, and general working conditions. Before any action was taken, Stewart appeared. After about 4 minutes, Stewart left and half the people left with him. On Saturday, May 6, Chinzi, Trujillo, and Tony Delgado, Jr., prepared a body of laws. Chinzi purchased blank 3 x 5 index cards. Chinni testified: First, I had to print all the printed matter that would resemble as closely as possible and which related to the printed matter on the Teamsters' card and have the employees fill it out. On Monday, May 8, 31 employees signed United Tire authorizations at Chinzi's request. In soliciting signatures, Chinzi said, in substance: ... this was for the Mission Tire Union . . . if you want to organize yourselves without any big brother up above us pushing us around and without spending $100 initiation fee and going to meetings in your spare time, if you don't want that, you can go with us and we can do it ourselves down here ... for higher wages, and better benefits and working conditions and less hazards and better sanitary conditions, that they shouldjoin us and have the full advantage of a full big union and all set to keep it to ourselves ... we would have a union contract signed and have the management sign it and stick to it ... also that the company agreed to meet our demands ... I said we will intervene with the Teamsters. That means that there will be more than one name on the ballot and that way, we can choose between the Teamsters and the company union or I should say, United Tire. Lee observed this solicitation without protest. When Chinzi ran out of his prepared cards, he obtained 10 additional blanks from Lee. After obtaining the 31st signature he obtained LeBoe's permission to go to the Board office where he filed the cards, and gave a second statement to the same Board agent. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 2, 1972, Respondent filed the petition docketed as Case 3l-RM-299, stating that Teamsters had requested recognition on April 24, 1972, and that United Tire had requested recognition on May 4, 1972. ' On June 6, 1972, a hearing was held in the representation cases. On June 16, 1972, the Regional Director issued his Decision and Direction of Election. In the week prior to the July 12 election, Lee called two meetings of employees, one in the warehouse and one in the yard. At these meetings Lee said in substance: The Teamsters are an organization that is in business to make money. They are interested in dues and initiation fees and they all drive quite large cars, whereas we don't. I believe the Teamsters Union is not needed in our situation. I believe we could handle our problems ourselves as a group, as a family, as we always have. Any time anybody has a problem or complaint, they always have and always can feel free to come to me. We can solve our problems ourselves without any outside help. At one of the meetings Lee conceded that the restrooms were dirty and said that the Respondent intended to have an outside maintenance company take care of them. At both meetings Lee stated that he could make no promises, and that Respondent would bargain with whichever union won the election. On the day of the election, July 12, Lee told Oscar Rodriguez that because his name did not appear on the voting eligibility list he would not be allowed to vote. Rodriguez testified: When I was in the restroom, Mr. Owen came to the restroom and told me I was not on the list of people for the election and that I could vote for the election, but if I vote, maybe I wouldn't work any more for him. Lee testified: Mr. Rodriguez does speak half English and half Spanish and we can't communicate on those lines and I tried to explain to him that when we made up the original list of employees . . . that we were requested to furnish for the Union . . . I told him that because he was away on sick leave and I wasn't sure when he would return, we omitted his name from the list and therefore he would not be allowed to vote.. . . I explained it to him in my Spanish and my English .. . he understood perfectly . . . he walked out in the yard and watched everyone else voting and he didn't. F. Concluding Findings 1. Ivory Stewart was discharged because of his activi- ties on behalf of Teamsters and for no other reason. Respondent's animus is evidenced by Lee's remarks in LeBoe's office, and in his preelection talks. Stewart was a long-time, highly valued, privileged employee. He was discharged near the beginning of a pay period , before the end of his shift, the next working day after he obtained Teamsters authorizations from employees who were directly supervised by Daley. Daley, who was working "up front with " Lee was in a position to know the true reason for the discharge, and he announced, without equivoca- tion, that Stewart was discharged for passing out union cards. In the discharge interview, LeBoe lied to Stewart, and must have known that Stewart knew he was lying. LeBoe did not testify. Lee's testimony that LeBoe told every employee, discharged for any reason, that he was being laid off for lack of work, and that LeBoe indulged in this prevarication for fear of physical violence, is uncorro- borated hearsay, without evidentiary value. Lee lied to Chinzi and Trujillo when he stated that Stewart had been discharged for not doing his job, and must have known that they knew he was lying. Lee's promise to. reinstate Stewart, made while he was encouraging Chinzi and Trujillo to form an independent union, is an implied concession that Stewart's work was in fact satisfactory. Additional reasons, advanced for the first time in Lee's testimony, are pure afterthoughts. Lee's testimony that Stewart frequently failed to punch the timeclock would, if credited, merely constitute further evidence of the special privilege which he enjoyed. Lee's testimony that he expected Stewart to quit without notice whenever he found a job as an upholsterer, and that "I decided that now is the proper time to let him go, at our convenience, rather than at his convenience" is specifically discredited. Stewart had completed his upholstery training in January 1971, and nothing occurred in 1972 which would give Respondent any reason to suspect that he was seeking other employ- ment. Neither was this a "convenient" time to discharge Stewart. Lee testified: Q. (By Mr. Bradshaw) Was Mr. Stewart laid off for lack of work? A. (By Mr. Lee) No, he was not. Q. Was there an adequate amount of work in the plant to keep the other employees, Mr. Stewart, busy? A. Yes. 2. Respondent interfered with the formation and administration of United Tire and contributed support to it, by the following acts and statements: (a) Lee's statement on May 5 that if Teamsters demanded the wages and conditions which they had in other contracts Respondent's plant would close; (b) Lee's prompt approval of Chinzi's suggestion that the employees form their own union; (c) Respondent's acquiescence in the organizing activities of its foreman, Chinzi; (d) Respondent's permission to Chinzi to use its bulletin board to announce an organizational meeting; (e) Respondent's permission to Chinzi to solicit United Tire authorizations on company time; (f) Lee's donation of blank cards to Chinzi in aid of his solicitation of United Tire authorizations; (g) Respondent's revocation of its promise to reinstate Stewart after Stewart broke up Chinzi's meeting; (h) Respondent's grant of leave to Chinzi and Trujillo to take United Tire authorizations to the Board office on company time; (i) the discharge of Stewart for soliciting Teamsters authorizations, contrasted with the encouragement of United Tire solicitations by Chinzi; (i) Lee's public announcement prior to the Board election that "the Teamsters Union is not needed" with the implication that United Tire would be welcome; (k) the statement of LEBOE TIRE & RUBBER CO. Foreman Chinzi in soliciting United Tire authorizations that Respondent had agreed to meet the demands of United Tire. Teamsters Objection 4 should be sustained. 3. Teamsters did not, on April 24, 1972, nor on any other date represent an uncoerced majority of Respon- dent's employees in any unit appropriate for bargaining. The appropriate unit is: All production and maintenance employees and truck- drivers employed by Respondent , including retail salesmen at the Stanton store; but excluding all other employees , office clerical employees, professional employees, guards and supervisors as defined in the Act.' The parties stipulated that as of April 24, 1972, prior to the discharge of Stewart, there were 39 named employees in the unit (37 in Glendale and 2 in Stanton). The General Counsel would include and Respondent would exclude the name of Chinzi. I have found that Chinzi was on April 24 a supervisor within the meaning of the Act and is therefore excluded from the bargaining unit. The Respondent would include and the General Counsel would exclude the name of Daley. I have found that Daley was on April 24 a supervisor within the meaning of the Act and is therefore excluded from the bargaining unit. The Respondent would include and the General Counsel would exclude the name of Ed Strange. Mr. Strange was hired as a stockman and supplemental truckdriver on April 14, 1972. He worked Friday, April 14, and Monday, April 17. He did not report for work after April 17 and was dropped from the payroll on April 27. I find that Strange quit on April 17 and was not part of the bargaining unit on April 24, 1972. I find that as of April 24, 1972, there were 39 employees in the appropriate unit. There were received in evidence 20 Teamsters authoriza- tion cards. One of these was signed by Chinzi. Teamsters, at best, represented only 19 employees in a unit of 39 employees, or less than a majority. Of the 20 signers of Teamsters cards, 3 were personally escorted to Stewart by Chinzi, 4 were directed by Chinzi to see Stewart in the warehouse and Chinzi was present when the signatures of 4 others were secured by Stewart. The active participation of Foreman Chinzi in the solicitation of these 11 signatures negatives the inference that signing was a voluntary act and destroys the value of the cards as evidence of employee intent. The 8 remaining cards, presumptively valid, represent less than 30 percent of the 39 employees in the appropriate unit.2 4. The interrogation of Chinzi by Lee in March 1972, and Lee's instruction to Chinzi to let him know what was happening, if anything, did not violate the Section 7 rights of employees, since Chinzi was not an "employee" within the meaning of the Act, and Chinzi did not report to Lee on the union activities of his subordinates. Florida Builders, Incorporated, 111 NLRB 786, 787. 1 This is the unit alleged in the complaint and admitted in the answer. It is the same unit which the Regional Director found appropriate in his Decision and Direction of Election 8 The General Counsel in his brief to me achieves a Teamsters majority by omitting from his list of employees the name of Ronald Bierer, whom he 91 5. The statement of Daley that Stewart had been discharged for passing out union cards coerced and restrained employees in the exercise of Section 7 rights, since "the clear implication of the statement is that Respondent would not hesitate to take reprisal action against employees engaging in union activity protected by law." Serv Air Aviation, Stallings Air Base, I1 i NLRB 689, 696. 6. Lee's statement on May 5 that Teamsters demands would result in plant closure was not a "reasonable prediction based on available facts but [was] a threat of retaliation based on misrepresentation and coercion." By this statement, Respondent violated Section 8(a)(1) of the Act. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 618 (1969). This statement of Lee was made within the "critical period" under the Ideal Electric rule as interpreted and applied by the Board in West Texas Equipment Company, 142 NLRB 1358, 1359, and is sufficient to create an atmosphere which rendered the exercise of a free choice in the July 12, 1972, election impossible. Teamsters Objection 3 should be sustained. 7. Lee did not, on July 12, 1972, tell Rodriguez that he would receive no more work if he voted for Teamsters. Lee did tell Rodriguez that he could not vote. Rodriguez reasonably understood that this was an order from the boss, and that the normal consequence of disobedience of any order would be discharge. Although the variance between the complaint and the proof is substantial, the matter was litigated, . and Lee's offense is of sufficient gravity to require a specific injunction against its repeti- tion. Rodriguez was in fact an eligible voter, since he was on authorized sick leave during the eligibility period and was actually working on the date of election. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, as set forth above, occurring in connection with the operations of Respondent described above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that Respondent has engaged in certain unfair labor practices. It will therefore be recom- mended that it cease and desist therefrom and take certain affirmative action, as set forth in the recommended Order below, designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. LeBoe Tire and Rubber Company, doing business as Mission Tire & Rubber Company, Respondent herein, is an employer within the meaning of Section 2(2) of the stipulated was to be included in the unit, by excluding Daley and Strange and by including Chinzi. There is no basis whatsoever for the exclusion of Bierer. Excluding Daley and Strange and including Chinzi would give Teamsters a total of 20 authorizations in a unit of 40, again less than a majority 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Act, engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Automotive Workers Local 495, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor, organization within the meaning of Section 2(5) of the Act. 3. United Tire and Retreaders of Mission Tire is a labor organization within the meaning of Section 2(5) of the Act. 4. By discharging Ivory Stewart to discourage member- ship in Teamsters Automotive Workers Local 495, I.B.T.C.W. & H. of A. Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 5. By interfering with the formation and administration of United Tire and Retreaders of Mission Tire, and by contributing support to it, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (2) of the Act. 6. By telling employees that Stewart had been dis- charged because of his union activities, by threatening to close the plant, and by preventing an eligible employee from voting at an N.L.R.B. election, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Respondent, LeBoe Tire and Rubber Company, d/b/a Mission Tire & Rubber Company, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Attempting to influence their employees' choice of union representation by threats to close the plant. (b) Making statements to employees which tend to create the impression that other employees have been discharged for union activity, or by otherwise stating or suggesting to employees that union or protected concerted activities may result in their discharge. (c) Interfering with the conduct of any Board election by telling employees that they should not vote. (d) Interfering with the formation or administration of any labor organization by permitting supervisors to act as promoters or officers thereof, or in any other manner contributing financial or other support thereto. (e) Discouraging membership in or activities on behalf of Teamsters Automotive Workers Local 495, I.B.T.C.W. & H. of A. or any other labor organization of its employees by discharging or refusing to reinstate or otherwise 3 In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes discriminating against employees in regard to their hire or tenure of employment, or any term or condition of employment. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to Ivory Stewart immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, and make him whole for any loss of earnings suffered as a result of the discrimina- tion against him. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. (b) Preserve, and upon request, make available to the Board or its agents, for examination and copying, all payroll records, personnel records and reports, timecards, social security payment records, and all other records necessary to analyze the amount of backpay due under the terms of thisDecision. (c) Withhold all recognition from any labor organization as the representative of Respondent's employees for the purposes of collective bargaining unless and until said labor organization shall have been certified by the National Labor Relations Board as the exclusive collec- tive-bargaining representative of such employees. (d) Post at its plant in Glendale, California, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by an authorized representative of Respondent, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. FURTHER FINDINGS AND RECOMMENDATION AS TO DISPOSITION OF ISSUES IN CASES 3l-RC-2066 AND 31-RM-299 I have found that Teamsters Objections 3 and 4 are supported by a preponderance of the evidence and therefore recommend that the results of the election held July 12, 1972, be set aside. While the matter of the validity of the prior proceedings 4 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " LEBOE TIRE & RUBBER CO. was not specifically submitted to me, the attention of the Board is directed to the following facts, on the basis of which I further recommend that both petitions be dismissed: I have found that Michael Chinzi, in April 1972, was a supervisor within the meaning of Section 2(11) of the Act and was not an employee within the meaning of Section 2(3) of the Act. I have also found that Teamsters "showing of interest" to support the petition in Case 31-RC-2066 was obtained through the active participation of Chinzi. The facts developed in this hearing may be treated by the Board as the "administrative investigation" described in Winn-Dixie Stores, Inc., 124 NLRB 908, and, should the Board agree with my findings, it should dismiss the petition. Southeastern Newspapers, Inc., 129 NLRB 311. 93 Counsel for Respondent was misled by his client when he stated on the face of the petition in Case 31-RM-299, on June 2, 1972, that Teamsters had requested recognition as bargaining representative on or about May 4, 1972, that a claim had been made by Teamsters on April 24, 1972, and that a claim had been made by "United Tire Union" on May 4, 1972. Lee, questioned by counsel for Respon- dent, testified that Teamsters had never requested recogni- tion. I have found that United Tire did not come into existence until after May 4, 1972. I find, on this record, that as of June 2, 1972, Respondent had not received from any labor organization any request for recognition. "Absent such a claim the Board [is] without jurisdiction to proceed with its investigation under Section 9(c)(1)(B) of the Act." Herman Lowenstein, Inc., 75 NLRB 377, 382.