ABS Auto Parts, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 440 (N.L.R.B. 1969)

440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ABS Auto Parts , Inc. and Shopmen 's Local Union
No. 455 , International Association of Bridge,
Structural and Ornamental Iron Workers,
AFL-CIO. Case 29-CA-1484
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On April 25, 1969, Trial Examiner Joseph I.
Nachman issued his Decision in the above-entitled
proceeding, finding that the 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 Respondent and the General Counsel
filed exceptions, with supporting briefs, to the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board had 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 and briefs, and
the entire record in this proceeding, and hereby
adopts the findings,' conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, ABS Auto Parts, Inc.,
Brooklyn, New York, its officers, agents, successors,
and assigns , shall take the action set forth in the
Trial Examiner's Recommended Order.
'The Respondent's exceptions, in large part , are directed to the
credibility findings made by the Trial Examiner It is the Board's
established policy not to overrule a Trial Examiner 's resolutions as to
credibility unless , as is not the case here, a clear preponderance of all the
relevant evidence convinces us that they are incorrect . Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). Nor do we find
ment in the Respondent ' s contention that because the Trial Examiner
uniformly credited the General Counsel ' s witnesses and discredited the
Respondent's witnesses , his credibility resolutions are erroneous or
attended by bias or prejudice . N.L R.B. v. Pittsburgh Steamship Co.. 337
U.S. 656 Accordingly , we find no basis for disturbing the Trial
Examiner's credibility findings in this case.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Trial Examiner: This proceeding
tried before me at Brooklyn, New York, on March 6, 7,
and 8 , 1969, involves a complaint ' pursuant to Section
10(b) of the National Labor Relations Act (herein the
Act), which alleges that ABS Auto Parts, Inc. (herein
Respondent), in the course of an organizational campaign
among its employees, interfered with, restrained, and
coerced its employees in the exercise of their Section 7
rights, and discriminatorily discharged three employees
because of their assistance to and support of Shopmen's
Local Union No. 455, International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO (herein the Union). By answer or stipulation
Respondent admitted here certain allegations of the
complaint , but denied the commission of any unfair labor
practice. For reasons hereafter set forth, I find the
aforementioned allegations proved, and recommend the
usual remedial order.
At the trial all parties were represented by counsel and
were afforded full opportunity to examine and
cross-examine witnesses, to introduce relevant evidence, to
argue orally on the record, and to submit briefs. Oral
argument by the General Counsel is included in the
transcript of proceeding. The General Counsel also
submitted a brief. Respondent waived oral argument and
submitted a brief. The oral argument and briefs have been
duly considered.
Upon the entire record in the case, including my
observation of the demeanor of the witnesses , I make the
following:
FINDINGS OF FACT'
1. THE UNFAIR LABOR PRACTICES ALLEGED
A. Chronology of Events
1. Background
About mid-August a number of Respondent's
employees including specifically Daniel Staggers, -John
Stanback, and Robert Williams, the three discriminatees
involved in this proceeding, met with officials of the
Union and soliciting it to organize the employees and
represent them in their employment relations with
Respondent . Those present signed authorization cards and
were given additional cards for signature by other
employees. In due cause, a number of signed cards were
delivered to the Union. There is no independent evidence
that while signatures to the cards were being solicited,
Respondent was aware of the organizational activity
among its employees.
'Issued November 29, on a charge filed October 9. These and all dates
hereafter mentioned are 1968 unless otherwise noted
'No issue of commerce or labor organization is presented While
Respondent in its answer denied the conclusion in paragraph 5 of the
complaint that it was engaged in commerce within the meaning of the Act,
it admitted the facts pleaded in paragraphs 3 and 4 of the complaint. I find
those facts to be as pleaded . Although the Union's status as a labor
organization was denied in the answer , that fact was stipulated at the trial.
I find accordingly.
177 NLRB No. 64
ABS AUTO PARTS, INC 441
2. Events of August 26
To establish Company knowledge of the union activity
among its employees , the General Counsel introduced a
telegram which the Union sent Respondent on August 23
(a Friday), which was admittedly received,' but as the
time of such receipt is critical and in dispute , the facts
relating to that issue are detailed . The telegram was filed
with the Western Union originating office in New York at
5:42 p.m. August 23, and was received by its delivery
offce• in Brooklyn, on Saturday, August 24, at 9:03 a.m.
This telegram , along with a number of others , was given
to a delivery messenger, who left the Brooklyn office at
10:26 a.m., August 24. The messenger returned to his
office the same day at 11:32 a.m., reporting his inability
to deliver the message because the office of the addressee
was closed. The telegram was held by Western Union
until Monday, August 26, when it again was sent out for
delivery by a messenger at 7:36 a.m. That messenger
returned to his office at 9:59 a. m., filing his report which
is in evidence, showing his disposition of this and other
telegrams. With respect to this telegram, his report carries
no entry relating to delivery, which according to Western
Union ' s Manager of Customer Service , means that the
telegram was delivered . No signature was obtained from
the addressee because, again according to the Western
Union witnesses , such signatures are not obtained unless
specifically requested by the sender, which was not the
case here . The Western Union messenger who made the
run on Monday, August 26, testified that while he had no
independent recollection regarding the delivery of this
telegram , the fact that no notation appeared on his route
slip indicated that the telegram was delivered, and that no
signature of the addressee was obtained , because his route
slip did not indicate that such was requested by the
sender. The messenger further testified that if delivery of a
telegram is made by leaving it under a door, a notation to
the effect is made on the route sheet, and as such did not
appear here , he was certain this telegram was not
delivered in that fashion . When there is added to this the
fact that Respondent offered no evidence to prove when or
under what circumstances it received the telegram and the
evidence it did offer as to the receipt of the telegram I do
not credit , the records maintained by Western Union in
the normal course of its business must be accorded
paramount significance . Cf. Novelty Products Co., 170
NLRB No. 68. Accordingly, I find and conclude that the
telegram was received by Respondent and its contents
became know to its responsible officials before 10 a.m.,
Monday, August 26.'
'The telegram , which Respondent produced at the trial in obedience to a
subpena , stated that the Union had been designated majority representative
in a unit of Respondent 's production , maintenance , and warehouse
employees , requested bargaining for a contract , and offered to prove its
majority status if such was questioned by Respondent.
'Abraham Sapperstein testified that he first saw the telegram on
Tuesday morning , August 27 , while the picketing , hereafter discussed and
which began that day about 8 a.m. was in progress , when he opened his
desk drawer looking for some paper , and there found the telegram ; that he
immediately asked when and by whom it was received , but that he was
unable to obtain any satisfactory information . Samuel Sapperstein at first
denied that he had ever seen the telegram , and testified that it was for this
reason that he had replied in the negative when he was called several
months later by Western Union inquiring whether the telegram had been
received . When pressed further he admitted that he saw the telegram the
morning of the picketing "around eleven or twelve o'clock - maybe one
o'clock ." Not only do I not credit their testimony in that regard, but in
this and in other aspects of their testimony , I am convinced and find the
contrary to be true . See N L.R . B. v. Walton Manufacturing Co., 369 U.S.
Shortly after 10 a.m., employee Stanback, while at
work, received a message that he was wanted in the office.
Reaching the office Samuel Sapperstein , addressing
Stanback, stated, "I guess you signed for the Union, too."
Although he had signed a card, Stanback denied that he
did so. At this point Herman Goldberg,' commented that
Local 455 was for those who build bridges, and asked
Stanback if he could build a bridge. Stanback responded
in the negative. Sapperstein then told Stanback, that he
would have to let him go, but that Stanback should come
back in about 2 weeks, "after the mess was over with,"
and that he would try to put him back to work; that he
was a good worker, adding as a parting remark, "You see
what your friends have got you into." Stanback then left
Respondent's premises and went to a corner store where
the employees normally gather for lunch. During the lunch
period, Stanback told his fellow employees of his
discharge and the Union was immediately informed of
that fact.'
Stanback began working for Respondent as a yardman.
His starting rate was $1.85 an hour, and within a few days
increased to $2 an hour. Stanback credibly testified that
while employed by Respondent no one in authority ever
criticized his work. On the contrary, as I have heretofore
found, when he was initially laid off on August 26, he was
told by Samuel Sapperstein that he "was a good worker",
and that he would be put back to work in about 2 weeks,
"after the mess was over with."'
404, where the Supreme Court , quoting with approval from Judge Learned
Hand in Dyer v . Mac Dougall , 201 F.2d 265 , 269, stated that the
demeanor of a witness
... may satisfy the tribunal , not only that the witness' testimony is not
true , but that the truth is the opposite of his story ; for the denial of one,
who has a motive to deny , may be uttered with such hesitation,
discomfort , arrogance or defiance , as to give assurance that he is
fabricating , and that , if he is, there is no alternative but to assume the
truth of what he denies [369 U.S. at 4081
'Considerable testimony was introduced relating to the supervisory status
of Goldberg . For reasons hereafter stated I find it unnecessary to decide
that issue.
`The findings in this paragraph are based on the credited testimony of
Stanback , Staggers and Williams . Both Sappersteins denied that they ever
discussed the Union with Stanback or any other employee . Although they
admitted that Stanback was discharged , they gave differing accounts as to
who fired him, when he was fired , and the circumstances under which he
was fired . Abraham Sapperstein initially testified on direct that he
discharged Stanback about noon on Friday , August 23, because the latter
who had only worked since the first week of August , and who had been
tried on several jobs but proved unable to perform any of them
satisfactorily , was asked if he could drive a truck , and when it developed
that the license which Stanback had was issued to him in Maryland, he
told Stanback that Respondent had no further use for his services, that he
should go get his pay. Upon completion of his direct examination, the
hearing was recessed for lunch When the hearing resumed, I granted the
request of Respondent 's counsel for further direct examination . At this
time Sapperstein testified that it was on Monday, August 26 , that he had
the conversation with Stanback concerning the latter 's ability to drive a
truck , and that he discharged him about noon of that day. In this
connection it is pertinent to note that Stanback's time card shows that he
was paid to 5 p.m. on August 23, but only until noon on August 26.
Samuel Sapperstein also testified as to Stanback 's alleged incompetence,
but claimed that it was he who asked Stanback about driving a truck, and
that when it developed that Stanback had only a Maryland license, he
directed Stanback to get his pay. Interestingly enough Samuel Sapperstein
fixes this conversation as having occurred on August 29. It is noted,
however , that nowhere in the affidavit he gave the Board , did Samuel
Sapperstein claim that Stanback's failure to have a valid license was the
motivating factor in the decision to discharge him.
'Samuel Sapperstein did not specifically deny having made these
statements.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Events of August 27
The morning of August 27, instead of beginning work
at the usual 8 a.m. starting time, the employees began
picketing Respondent' s premises to protest Stanback's
discharge. Union Agent Candelora was present and
assisted with the picketing in which Stanback, Williams
and Staggers and a number of other employees
participated, and which was observed by all three of the
Sapperstein brothers. After a conference between the
Sappersteins and Union Agent Candelora, the latter
directed all the employees, including Stanback, to return
to work, which they did, and all were paid for the full
day. Thereupon the picketing terminated about 10 or
10:30 a.m.'
4. Other events during week of August 26
In addition to the interrogation of, and the statements
made to Stanback, detailed supra, the evidence also shows
interrogation of, and coercive statements by the
Sappersteins to employees Staggers and Williams. The
fact with respect to these are:
1. Apparently during the morning of August 26,
Staggers heard from fellow employees that Respondent
had received a telegram from the Union. Shortly
thereafter Abraham Sapperstein approached Staggers and
asked whether the latter had signed a union card.
Although he had done so, Staggers denied that he signed a
union card. Sapperstein stated that he had papers to prove
that Staggers had signed a card, but Staggers persisted in
his denial. Later in the day, as Staggers was returning
from lunch, he met Goldberg, Samuel and Abraham
Sapperstein at the entrance to the premises. One of the
Sappersteins, addressing Staggers, remarked, "If you guys
wanted a union, why didn't you come to us and we would
get you a union." Goldberg stated, " . . . the Union is not
going to do [you] any good, the only thing is they will
take your money and not do anything for you." Sam
Sapperstein remarked, in substance, that if the Union did
come in he would reduce the operation to the point that
only 5 men would be needed and that the remainder
would be laid off. Later in the week Staggers was called
to the office and was there told by Abraham Sapperstein
that if the Union came in "a lot of fellows would be
hurt," but if there was no union in the plant, the
operation would continue as in the past, and "nobody
would get laid off."'
2. During the week of August 26, Robert Williams was
asked by Abraham Sapperstein whether he had signed a
union card. Williams answered by asking "what union."
Later, Goldberg told Williams that the men would only be
hurting themselves by getting a union in, and Samuel
Sapperstein told Williams that if the Union got in he
'The foregoing findings are based on the credited testimony of Staggers,
Williams, and Stanback The record does not fully reflect the discussions
between the Sapperstems and Candelora , as the latter did not testify The
testimony shows that beginning in November or December, Candelora was
confined to a hospital under intensive care At the time of the hearing he
had been home several weeks but was not permitted to see anyone. The
Sapperstems testified that Candelora pressured them into agreeing to
return to work by threatening to close the place down I deem it
unnecessary to make any finding on this point.
'The Sappersteins denied that they discussed the Union with any
employee Respondent contends that Staggers as a convicted felon
sentenced to a lengthy prison term , should not be credited. Upon
consideration of the entire record, and the demeanor of the witnesses, I do
credit Staggers and base the foregoing findings on his testimony.
(Williams) would be the first to go. On Thursday, when
the employees were being paid for that week, as hereafter
set forth, with the three Sappersteins and Goldberg
present, Abraham Sapperstein told Williams that he knew
the names of all employees who had signed for the Union,
and added that if the Union did not get in, "everdyone
would receive a raise and no one would get laid off."'
5. Events of August 29 and September 3
Respondent's workweek ends with the close of business
on Friday, at which time the employees are paid in full
for all work during that week. However, on Thursday,
August 29, the employees were paid the wages due them
for that week and told not to report for work on Friday,
August 30." Nothing was said then about termination or
not reporting for work the following week. The following
Monday being Labor Day, the next scheduled work day
was Tuesday, September 3, when all employees reported
for work at the usual 8 a.m. starting time. Before he could
start work, Stanback was told by Samuel Sapperstein to
go home until Respondent sent for him. Stanback did so,
but returned to Respondent's premises on September 4, to
claim some overtime he felt was due him for work during
the preceeding week, and again on September 6, to collect
for that overtime. At no time after September 3, was
Stanback recalled for work, although there was ample
work for him to do. Stanback testified without
contradiction that when at Respondent's premises on
September 4 and 6, he observed new employees doing the
work he theretofore performed.
Shortly after Staggers and Williams who worked
together, reported for work on September 3, they were
told by Samuel Sapperstein that Respondent had no work
for them, and that they punch out, saying they would be
called when needed. Admittedly, Respondent has not
called either for work, and the record shows that work
was available, new employees having been hired to
perform the work Staggers and Williams theretofore
performed." The following day Staggers and Williams
returned to the plant seeking holiday pay for Labor Day.
They were apparently told to return for it on Friday, and
were then paid for 4 hours."
"Based on the credited testimony of Williams Arthur Reeves, a witness
called by Respondent , and for whose credibility it vouched, also testified
that he was interrogated by Samuel Sapperstein as to whether he had
signed a card for the Union However, as I discredit other portions of
Reeves' testimony , I make no finding as to that incident, because in no
event would it affect the nature or scope of the order which I shall
recommend
"Employees testified that the reason given them for the Friday closing
was the wedding of a son of one of the Sappersteins Respondent's
testimony was that the extra day was granted because Labor Day was
approaching and some employees who had taken no vacation time, wanted
the extended holiday period . As the General Counsel ascribes no antiunion
motive to Respondent's failure to operate on Friday, I find it unnecessary
to resolve the conflict
"In its brief, Respondent refers to the testimony of Staggers and
Williams, both of whom admitted that they were never told in so many
words that they were terminated However, Respondent' s counsel conceded
in his opening statement that all three of the discriminatees were
discharged , and that each was discharged for cause, and both Abraham
and Samuel Sapperstein testified that these employees were discharged,
each claiming that he was the one who discharged them
'Based on a composite of the credited testimony of Staggers and
Williams. Although Staggers ' testimony vanes to some extent from that of
Williams as to the events of September 3, I am convinced that he was
confused as to dates, and that the events he testified to as having occurred
on September 4, in fact took place on September 3, as Williams testified
Initially, Respondent contended that Staggers and Williams were
ABS AUTO PARTS, INC 443
Staggers was employed about March 1, and until his
discharge on September 3, worked as a general helper
cleaning automobile parts. His starting salary was $2 an
hour. Sometime in July, he received an increase of 25
cents an hour, at which time he was told by Abraham
Sapperstein, as Staggers credibly testified, that he
(Stagers) "had learned the fob and . . . deserved a raise.
,,If
Williams had worked for Respondent some years back,
but voluntarily quit. He was rehired in July, and until his
discharge on September 3, worked as a general helper
cleaning automobile parts. He was rehired at $1.75 an
hour, and about a month later received a raise of 25 cents
an hour. Williams credibly testified that prior to his
discharge on September 3, he was never reprimanded by
management, nor was his work criticized. I also credit
Williams that on the day of his discharge by Sapperstein
the latter did not complain about Williams' work
performance, but rather told Williams that the reason for
his termination was lack of work.
B. Analysis and Conclusions
1. The independent 8(a)(l) allegations
I find and conclude that Respondent violated Section
8(a)(1) of the Act by the following conduct.
(a) Samuel Sapperstein's interrogation of Stanback on
August 26, and the interrogation of Staggers and Williams
during that week as to whether said employees had signed
a union card. The facts as developed in the record show
(1) Respondent's hostility to the advent of the Union, and
that three employees were promptly discharged for
discriminatory reasons, as hereafter found, demonstrates
that the intent to discriminate was at least a purpose of
the interrogation; (2) the interrogation was by the highest
level of supervision, and the information requested was
quite specific - did you sign a union card; (3) for the
most part the interrogation was not informal but after
being called to the office; (4) the employees found it
necessary to deny that they had signed cards or otherwise
knew of or participated in the affairs of the Union; and
(5) the employees were not told the purpose of the inquiry,
nor were any assurances against reprisal given - indeed
the interrogation of Stanback was followed by his prompt
discharge, and the interrogation of Williams, and some of
the interrogation of Staggers took place at a time when
they knew of Stanback's discriminatory discharge on
August 26. These factors convince me that the
discharged for inefficiency, loafing on the job, and for vile and abusive
language allegedly directed toward the Sapperstems . The alleged
inefficiency and loafing may be put to one side in view of the testimony of
Samuel Sapperstein that were it not for the vile and abusive language he
would not have discharged Staggers or Williams on September 3. Both
Staggers and Williams denied that they used vile and abusive language
toward the Sappersteins Consistent with my prior credibility resolutions, I
credit Staggers and Williams, and discredit the Sappersteins in that regard.
In this connection , it is of interest to note , that no where in his affidavit
given the Board agent on October 8, did Samuel Sapperstem refer to any
vile or abusive language by Staggers or Williams, nor is that assigned as a
reason for their discharge. His testimony in that regard therefore , has all
the ear marks of an afterthought . Neither was I impressed by his efforts to
avoid the effect of his affidavit by claiming that the Board agent
deliberately left that and other facts out of the affidavit . Also, because of
his obvious bias in favor of the Sappersteins , I do not credit the testimony
of Charles Smith that he was present and heard the vile language allegedly
used by Staggers and Williams.
"It is noted that Samuel Sapperstem did not deny that he so stated to
Staggers
interrogation of Stanback, Staggers, and Williams was
intended by Respondent to be, and was in fact coercive,
and therefore violative of Section 8(a)(1) of the Act. I so
find and conclude. Sturksnes Construction Co., Inc., 165
NLRB No. 102, Bourne Company v. N.L.R.B., 332 F.2d
47 (C.A. 2); N.L.R.B. v. Berggren & Sons, Inc., 406 F.2d
239 (C.A. 8).
(b) Samuel Sapperstein's statement to Stagger, that if
the Union got in the operation would be reduced to the
point that only five men would be needed and the
remainder would be laid off, as well as his statement to
Williams that if the Union came in he (Williams) would
be the first to go. Both statements constituted a threat to
the job security of these employees if they persisted in
their efforts to secure union representation.
(c) Abraham Sapperstein's statements to Staggers and
Williams that if the Union did not get in the operation
would continue, no one would be fired and the employees
would receive raises in pay. These were plainly promises
of benefit designed to dissuade the employees from
seeking union representation, and constituted the
interference, restraint, and coercion proscribed by Section
8(a)(1) of the Act. N.L.R.B. v. Miller Redwood
Company, 407 F.2d 1366 (C.A. 9).15
2. The 8(a)(3) allegations
The crucial question on this aspect of the case is
Respondent's motive in discharging Stanback, Williams,
and Staggers; was it because of their union activity, as the
General Counsel contends, or was it for their derelictions
of duty, as Respondent contends. My consideration of the
entire record convinces me, and I therefore find and
conclude that Stanback, Williams, and Staggers were
discharged because of union activity, and that the claimed
derelictions of duty was a mere afterthought seized upon
in an effort to obscure the true motive for the discharges.
As I have found on the basis of the credited evidence,
we have here a case of three employees whose work
performance had not previously been criticized, and who
are discharged without prior warning or notice, in the
midst of the work week, hard upon receipt of the Union's
demand for recognition. These factors - previously
satisfactory employee, sudden discharge without prior
warning after discovery of union activity, and in the midst
of the work week - are the classic indicia of a
discriminatorily motivated discharge. And when there is
added the fact, as I have found in the instant case, that
the stated reasons in defense of the discharges are false, it
is appropriate to infer, as I do, that such reasons were not
the real motive for the discharges, but that the true reason
therefor was one which Respondent denies and seeks to
"A substantial portion of the evidence adduced by the parties dealt with
the question whether, as the General Counsel contended but Respondent
denied , Goldberg was an agent of Respondent , or a supervisor within the
meaning of Sec. 2 ( 11) of the Act. However, I find it unnecessary to resolve
that issue . The statements shown by the evidence to have been made by
Goldberg were (1) to Stanback that Local 455 was for those who build
bridges; (2) to Staggers that the Union would not do the employees any
good , and (3) to Williams that the employees would only be hurting
themselves by getting a Union - all of which the General Counsel
concedes (brief 21 ), "fall short of constituting 8(a)(l) conduct . ." This
being true, and there being no evidence that Goldberg engaged in other
conduct that could be regarded as violative of the Act, no purpose would
be served by deciding his supervisory status Likewise it is unnecessary to
pass upon Goldberg 's status in order that his statements may be used to
establish antiunion animus on the part of Respondent Such animus is
made clear by the conduct and statements of Abraham and Samuel
Sapperstem.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conceal namely, to rid itself of these employees because of
their support of the Union. As the Court of Appeals for
the Ninth Circuit said in Shattuck Denn Mining Corp. v.
N.L.R.B., 360 F.2d 1018, 1020 (C.A. 9):
If he [the trier of fact] finds that the stated motive
for a discharge is false, he certainly can infer that there
is another motive. More than that, he can infer that the
motive is one that the employer desires to conceal - an
unlawful motive - at least where, as in this case, the
surrounding facts tend to reinforce that inference.
Accordingly, upon consideration of the entire record, I
find and conclude that Respondent's discharge of
Stanback, Williams and Staggers was discriminatorily
motivated, and as it plainly had the natural tendency and
effect of discouraging membership in the Union, was
violative of Section 8(a)(3) and (1) of the Act.
Upon the foregoing findings of fact, and the entire
record in the case, I make the following:
earnings during such period, in accordance with the
Board's formula set forth in F. W. Woolworth Company,
90 NLRB 289, with interest thereon at the rate of 6
percent per annum, as provided in Isis Plumbing &
Heating Co., 138 NLRB 716. To assist in procuring
compliance with this provision, it will be recommended
that Respondent be required to preserve and make
available to agents of the Board, all payroll and other
records necessary or useful in computing the amount of
backpay due.
Because of the character of the unfair labor practices
found, which go to the very heart of the Act, I shall
recommend that Respondent be required to cease and
desist from in any manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed by
Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532 (C.A. 4).
RECOMMENDED ORDER
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2 (2) of the Act , and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By the conduct set forth in section I,B,1, hereof,
Respondent interfered with , restrained , and coerced its
employees in the exercise of rights guaranteed by Section
7 of the Act, and thereby engaged in , and is engaging in
unfair labor practices proscribed by Section 8(a)(1) of the
Act.
4. By discharging , and thereafter failing and refusing to
reinstate Stanback , Williams, and Staggers because of
their assistance to and support of the Union , Respondent
discriminated against them in regard to their hire and
tenure of employment , thereby discouraging membership
in the Union , and thus engaged in and is engaging in
unfair labor practices proscribed by Section 8(a)(3) and
(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it be
required to cease and desist therefrom, and take certain
affirmative action found necessary and designed to
effectuate the policies of the Act.
Having found that Respondent interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed to them by Section 7 of the Act, it will
be recommended that it be required to cease and desist
therefrom.
Having found that Respondent discriminatorily
discharged and failed and refused to reinstate Stanback,
Williams, and Staggers, I shall recommend that it be
required to offer each of them immediate, full and
unconditional reinstatement to their former or
substantially equivalent position, without prejudice to their
seniority or other rights, privileges and working
conditions, and make each of them whole for any loss of
earnings suffered as a result of the discrimination against
him, by paying to him a sum of money equal to that
which he would have earned as wages, from the date of
the discrimination to the date of reinstatement, less net
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that the National
Labor Relations Board order ABS Auto Parts, Inc., its
officers , agents , successors, and assigns, to:
1. Cease and desist from:
(a) Interrogating employees as to whether they signed a
union card.
(b) Threatening employees with discharge or other
disciplinary action if they select union representation.
(c) Promising to grant benefits to employees if they
cease their assistance to or support of the Union.
(d) Discouraging membership in Shopmen's Local
Union No. 455, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO, or
any other labor organization of its employees, by
discriminatorily discharging, or in any other manner
discriminating against any employee in regard to his hire,
tenure, or other term or condition of employment.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to
self-organization, to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
2. Take the following affirmative action found
necessary and designed to effectuate the policies of the
Act:
(a) Offer John Stanback, Robert Williams, and Daniel
Staggers immediate , full and unconditional reinstatement
to his former or substantially equivalent position, without
prejudice to his seniority or other rights, privileges, or
working conditions, and make each whole for any loss of
earnings suffered, in the manner stated in the section
hereof entitled "The Remedy."
(b) Notify John Stanback, Robert Williams, and Daniel
Staggers 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
authorized agents of the National Labor Relations Board,
for examination and copying, all payroll records, social
security payment records, timecards, personnel records
ABS AUTO PARTS, INC 445
and reports , and all other records necessary or useful in
determining compliance with this order , or in computing
the amount of backpay due.
(d) Post at its business premises in Brooklyn, New
York, copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Regional
Director for Region 29 (Brooklyn , New York), after being
duly signed by its authorized representative , shall be
posted by it 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 it to insure that said notices are not altered,
defaced or covered by any other material.
(e) Notify the aforesaid Regional Director , 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."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . " Notify the aforesaid Regional
Director, in writing , within 10 days from the date of this Order , what steps
have been 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:
After a formal trial before a Trial Examiner of the
National Labor Relations Board at which all sides had the
chance to present evidence , it has been found that we
violated the law and we have been ordered to post this
notice to inform our employees of their rights.
WE WILL NOT question you as to whether or not you
have signed a union card.
WE WILL NOT promise you pay raises or other
benefits to get you to stop supporting a union.
WE WILL NOT fire, threaten to fire, or otherwise
discriminate against any employee because he joins, or
helps a union.
As it has been found that we violated the law when
we fired John Stanback, Robert Williams and Daniel
Staggers, WE WILL offer each of them their job back,
with full seniority, and we will make up the pay each of
them lost, together with 6 percent interest.
WE WILL notify John Stanback, Robert Williams
and Daniel Staggers if presently serving in the Armed
Forces of the United States of their 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.
The law gives all our employees these rights:
To organize themselves.
To form, join, or help unions.
To bargain as a group through a representative
they choose.
To act together for collective bargaining or other
mutual aid or protection.
To refuse to do any or all of these things.
WE assure you that WE WILL NOT do anything to
interfere with you in the exercise of these rights. Every
employee is free to become or remain a member of
Shopmen's Local Union No. 455, International
Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, or any other union , or not to
become or remain a member of any union.
Dated By
ABS AUTO PARTS, INC.
(Employer)
(Representative) (Title)
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, 16 Court Street,
Fourth Floor , Brooklyn , New York 11201, Telephone
212-596-5387.