C. Malone Trucking, Inc.

National Labor Relations Board - Board Decisions

Aug 11, 1959

124 N.L.R.B. 419 (N.L.R.B. 1959)

C. MALONE TRUCKING, INC. 419
port to delegate to incumbents of the three job categories under dis-
cussion authority to exercise allegedly supervisory functions. In
addition, the record contains testimony, conclusory in form, that mem-
bers of these three job categories responsibly direct the work of em-
ployees and use independent judgment in the performance of such
work. Such evidence does not, in our opinion, warrant a finding that
these three job categories are supervisory within the meaning of Sec-
tion 2 (11) of the Act, where, as here, the authority which is, in fact,
exercised is minor in degree 8 and relates to routine matters.6 We find
that the inspector head takeoff men, the kiln men, and the warehouse
leadmen are not supervisors within the meaning of the Act. Accord-
ingly, we have included them in the unit.
On the basis of the foregoing, we find that the following employees
constitute a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees at the Employer's
Grand Rapids, Michigan, plant, including inspector and head take-
off employees, kiln men, and warehouse leadmen, but excluding office
clerical employees, machinemen, the maintenance lead mechanic, test-
ers, guards, watchmen, professional and administrative employees,
and all supervisors as defined in the Act.'
[Text of Direction of Election omitted from publication.]
' United States Gypeum Company , 118 NLRB 20 , at p. 25.
West Virginia Pulp and Paper Company, 122 NLRB 738.
4 With the exception of the five disputed classifications discussed herein, the unit is in
accord with the agreement of the parties.
C. Malone Trucking, Inc. and Local 25, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America. Case No. 1-CA-2411. August 11, 1959
DECISION AND ORDER
On April 30, 1959, Trial Examiner Louis Plost issued his Interme-
diate Report 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 copy of the Interme-
diate Report attached hereto. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Bean, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
124 NLRB No. 48.
420 DECISIONS OF NATIONAL 'LABOR i RELATIONS BOARD
rulings are hereby' affirmed. The Board- has considered the Interme-
diate, Report, the exceptions, and the entire record in the case,' and
hereby adopts the Trial Examiner's findings, conclusions, and recom-
mendations.
ORDER
Upon. the entire record in, the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that the C. Malone Trucking, Inc. Waltham,
Massachusetts, its officers, agents, successors, and assigns, shall :
1. Cease and desist.from the following:
(a) Discouraging membership in Local 25, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, ,by discriminatorily dis-
charging any of its employees, or by discriminating in any other
manner in regard to their hire or tenure of employment or any term or
condition 'of employment.
(.b), Interrogating employees concerning their, membership in, or
activities on behalf' of, Local, 25,' International Brotherhood' of
Teamsters, Chauffeurs,. Warehousemen and Helpers of America, or
any other labor organization in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) of the Act.
(c) In any other manner, interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist Local'25, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, to bargain collectively
through representatives of their own choosing and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized by Section 8 (a) (3) of the Act 2
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
. (a) Offer to Edward R. Beechim and John F. Crispo immediate
and full reinstatement to their former or substantially similar posi-
tions without prejudice to their seniority or other rights and
privileges.
(b) Make whole said Edward R. Beechim and John F. Crispo in
the manner set forth in the section of the Intermediate Report en-
titled "The Remedy" for any loss of pay they may have suffered by
reason of the Respondent's discrimination against them.
1 Respondent's request for oral argument is 'denied because the record and the excep-
tions adequately present the issues and the positions of the parties.
2 N.L.R.B. v. Entwistle Mfg . Co., 120 F. 2d 532 (C.A. 4).
C. MALONE TRUCKING, INC. 421
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, timecards, personnel records and reports, and all other rec-
ords necessary to analyze and determine the amount of back pay due.
(d) Post at its terminal plant in Waltham, Massachusetts, copies
of the notice attached hereto marked "Appendix A." 3 Copies of the
said notice to be furnished by the Regional Director of the First Re-
gion shall, after being duly signed by an authorized representative of
the Respondent, be posted by the Respondent immediately upon re-
ceipt thereof and 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 the Re-
spondent to insure that said notices are not altered, defaced, or covered
by other material.
(e) Notify the Regional Director for the First Region in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply therewith.
e In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words, "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an
Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in Local 25, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization by discrimi-
natorily discharging any of our employees or in any other manner
discriminating against them in regard to their hire or tenure of
employment or any other term or condition of employment.
WE WILL NOT interrogate our employees concerning their mem-
bership in, or activities on behalf of, Local 25, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization in a manner
constituting interference, restraint, or coercion in violation of
Section 8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organi-
zation, to form labor organizations, to join or assist Local 25,
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor organization, to
bargain collectively through representatives of their own choos-
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, and to refrain
from any or all such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized by
Section 8 (a) (3) of the Act.
WE WILL offer to Edward R. Beechim and John F. Crispo im-
mediate and full reinstatement to their former or substantially
equivalent positions without prejudice to any seniority or other
rights and privileges previously enjoyed, and make them whole
for any loss of pay suffered as a result of the discrimination.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of the above-named union or any
other labor organization. We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment
against any employee because of membership in, or activity on behalf
of, any such labor organization.
C. MALONE TRUCKING, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice .must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
It having been charged on December 23, 1957, by Local 25, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
(Charging Party or Union), that C. Malone Trucking, Inc. (herein called Respond-
ent) has been engaging in and is engaging in unfair labor practices affecting com-
merce as set forth and defined in the National Labor Relations Act, as amended
(herein called the Act), the General Counsel of the National Labor Relations Board
(herein called the Board) by the Regional Director for the Board's First Region,
on May 8, 1958, issued a complaint and notice of hearing pursuant to the provisions
of the Act and the Board's Rules and Regulations.
The complaint alleged in substance that in violation of Section 8(a)(3) of the
Act the Respondent discriminatorily discharged Employees Edward Beechim and
John F. Crispo, and that in violation of Section 8(a)(1) of the Act the Respondent
"threatened its employees with economic reprisals because of their membership in
and assistance to the Union, and interrogated its employees concerning their union
affiliations for the purpose of discouraging membership in or assistance to the Union."
The answer denied that the Respondent had engaged in any unfair labor practices
as alleged, admitted that it had discharged Beechim and Crispo, but averred that the
discharges were for cause.
Pursuant to notice, a hearing was held on October 1 and 2, 1958, before Louis
Plost, the duly designated Trial Examiner, at Boston, Massachusetts.'
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
'This report was delayed by the fact that the Trial Examiner was hospitalized De-
cember 1, 1958, and not permitted to resume work until April 2, 1959.
C. MALONE TRUCKING, INC.
FINDINGS OF FACT
423
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times material herein, a corporation duly
organized under and existing by virtue of the laws of the Commonwealth of Massa-
chusetts and has maintained its principal office and place of business in Waltham,
Massachusetts, and is now and continuously has been engaged as a common carrier
in the transportation of freight. During the year preceding the charge, the
Respondent, in the course and conduct of its business, received in excess of $150,000
for services rendered in transporting freight from its Waltham Terminal to points;
outside the Commonwealth of Massachusetts.
II. THE LABOR ORGANIZATION INVOLVED
Local 25, International Brotherhood of Teamsters, Chauffeurs, Warehousemen:
and Helpers of America, is a labor organization within the meaning of Section 2(5>
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The discriminatory discharge of Edward R. Beechim-
Edward R. Beechim testified without contradiction that after approximately 21/1 .
years of steady employment by the Respondent as a truckdriver he was discharged
September 22, 1957.
Beechim further testified that at the time he started work with the Respondent, its
employees were represented by "the A.F.L. Teamsters," which was succeeded by
an unaffiliated organization of the Respondent's employees called "Watch City
Independent Chauffeurs, Helpers and Warehouse Union," which organization he'
joined at its formation; that some time in September 1957, at a time Watch City
represented the Respondent's employees under a collective-bargaining contract, he
(Beechim) asked the Charging Party (Local 25, International Brotherhood of Team
sters, Chauffeurs, Warehousemen and Helpers of America) to make an organizational'
effort among his fellow employees.
Beechim's testimony shows that his interest in supplanting Watch City was not
due to any rush of altruism but stemmed entirely from Watch City's failure to
satisfactorily process a grievance he had regarding 2 hours' pay. At any event,,
according to Beechim, he together with fellow employee John Crispo, contacted
James Feeney, the Charging Party's business agent some time in September 1957,
who furnished them with application cards to distribute among their fellow employees;:
that thereafter he and Crispo solicited and obtained signatures to these cards; that
he (Beechim) obtained the signature of John Cardillo to one of the cards, Cardillo,
being one of the Respondent's foremen and also the brother-in-law of President
Malone's brother; that during September (before his discharge) various organiza=
tional meeting were held by the Respondent's employees, one of these held "about
a week or a week and a half" before his discharge 2 at the office of the Charging
Party being attended by Foreman Cardillo.
Charles Malone, the Respondent's president, hereinbefore referred to, admitted
that in September 1957 John Cardillo was one of the Respondent's foremen, being
also a brother-in-law of President Malone's brother, also an employee of the
Respondent.
Beechim further testified that he took an active part in the Charging Party's effot
to organize the Respondent's employees, urging the selection of the Charging Party,.
distributing cards and obtaining signatures.
William Pooler testified credibly that in September 1957 he was employed as a
truckdriver by the Respondent; that he signed an application card for the Charging
Party at Beechim's request; that he attended the meeting of the Respondent's em-
ployees in the Charging Party's office; that after this meeting President Malone
"asked me what the story was on the union"; that the day following the meeting in
the Union's office, the Respondent's dispatcher, asked him "what happened at the
meeting." Pooler could not fix the date of the meeting in the Charging Party's
office.
Charles A. Withrow testified that he attended a meeting of the Respondent's
employees held by the Charging Party for the purpose of obtaining members, how-
ever, he could not fix its date; that thereafter President Malone asked him "if union
cards had been handed out" and if he had signed one; that he replied he did not
know if cards had been distributed and that he had not signed a card.
2 The record discloses that Beechim was discharged September 25, 1957.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
President Malone testified that he had. no knowledge of any employee activity in
behalf of the Charging Party prior to September 26, 1957, the day after Beechim's
discharge, when he received a letter (dated September 26) from the Board's Regional
Office informing him that the Charging Party had filed a petition seeking Board
certification as the bargaining representative of the Respondent's employees.
Malone admitted on cross-examination that James S. Feeney, the Charging Party's
business agent, called at his office and requested recognition. However he testified:
Mr. Feeney was out at my office; but I do not recall whether it was before
this letter or after. I believe it was after this letter. I am not quite sure.
Q. Now, at that time that Mr. Feeney was out at your office, he asked you
to recognize his union as the bargaining agent for your employees, isn't that
correct?
A. That's right, he asked me, yes.
On redirect examination Malone changed the date of his first seeing Feeney
to October 21.
Business Agent Feeney testified he called on Malone prior to September 26, 1957.
Inasmuch as it would have been necessary for the Charging Party to request
recognition of the Respondent before filing a petition for certification it is reasonable
to credit Feeney's testimony.
From the fact that Foreman Cardillo had actual knowledge of the employees'
efforts to supplant Watch City by the Charging Party (which knowledge must be
constructively imputed to the Respondent) before September 26, and from the
undisputed testimony of Pooler and Withrow, as herein found, it becomes quite.
clear that President Malone also had actual knowledge of the employees' union
activity prior to September 26, and therefore the Trial Examiner does not credit
Malone's testimony to the effect that he had no knowledge of such union activity
of his employees prior to receiving the notice from the Regional Office and there-
fore finds on the entire record that prior to September 26, 1957, the Respondent
knew of its employees' activities on behalf of the Charging Party.
President Malone further testified that: On September 11, 1957, Beechim made
a trip to points in Rhode Island consuming 111/2 hours; the trip should have taken
8 hours; and he called Beechim to his office the following night, told Beechim he
had wasted time and was given an explanation for the delay which he refused to
believe.
Malone testified further that: On September 17 Beechim took 121/2 hours for a
trip which should have taken 6 or 7 hours; on September 24 Beechim took 31 hours
on a trip that should have taken 2 hours; and on September 25 took 81/2 hours for
a trip that should have taken only 4 hours.
Malone further testified that in the afternoon of September 25:
Well, I called him in my office and told him that he was not making time,
and eight and a half hours is too much time to deliver three stops.
He further testified:
TRIAL EXAMINER. What did he say?
The WITNESS: He says, oh, no, oh, no, he says.
Q. (By Mr. Daniels.) What else did he say?
A. I didn't give him a chance to say anything else.
Q. You mean that was it?
A. I just told the bookkeeper to make out his money and he says he wouldn't
leave until he saw the steward. I says that is okay with me.
Malone sought to show that Beechim was an unsatisfactory employee at all times,
testifying as follows:
Q. Now, Mr. Malone, that happened on the 25th of September. Had you
had any previous occasions to question Mr. Beechim regarding the time that he
spent on jobs?
A. I had him in my office about an average of every three weeks for different
things.
That during the last year of Beechim's employment (Beechim was employed steadily
by the Respondent for 21h years) he received 20 to 25 complaints regarding
Beechim's work; that on each occasion he spoke to Beechim regarding the derelic-
tion and that "•I also spoke to the [union] steward and called the steward in and a
committee of three men." probably "seven or eight times, ten times."
Malone then modified his former testimony that he spoke to Beechim regarding
his derelictions 20 or 25 times to "be 8 or 10 conversations" on 20 or more complaints.
C. MALONE TRUCKING, INC. 425
According to Malone during 1957 the Respondent found it necessary to discharge
three truckdrivers. He testified as follows:
TRIAL EXAMINER: And during that period that you fired those three men,
that was the period in which you talked to Beechim eight times about the 25
derelictions he had had and didn't fire him, is that right?
The WrrrEss. Right.
Clearly the "20 or more" complaints did not enter into Beechim's discharge as
a cause thereof.
Beechim testified that prior to his discharge, he had been criticized by management
on but one occasion during his entire 21 year employment by the Respondent,
this being about a year prior to his discharge. He frankly testified:
Q. Had Mr. Malone ever called you down or reprimanded you for anything
that you had done prior to the time. . . .
A. Yes, he had.
Q. For what?
A. I don't recall, but I got a good one about a year before I got through.
Q. Was that because you were taking too much time?.
A. No, it wasn't; but I don't remember what it was, I know he did.
According to Beechim, he left the Respondent's terminal his last day of employ-
ment on a delivery trip requiring several stops; at his second stop he was delayed for
45 minutes but reported to Dispatcher Rizzo, in compliance with a standing order
requiring a telephoned report after the first 15 minutes delay and was told to wait
and make the delivery; a later stop was again delayed because of trucks waiting
ahead of his and so reported to Rizzo by telephone who told him to wait; that the
delay became "an hour or an hour and a half"; and when he had made the delivery
he again called Rizzo and was told to return. Upon his return he was called to
President Malone's office; Malone accused him of taking too much time in making
his deliveries, using the report Beechim had made for the day as his evidence; he
(Beechim) then told Malone to call the customers to verify Beechim's explanation
but Malone did not do so but "told the bookkeeper to make up my money."
Beechim further testified that "maybe a week" before his discharge he spent 11V2
hours on a trip to Cranton, being delayed at the delivery point for 6 or 7 hours;
that he telephoned to Dispatcher Rizzo twice during the time giving the reason for
the delay and that upon his return was asked "what the story was" by Rizzo.
Rizzo was not called by the Respondent.
Upon the entire record, the evidence considered as a whole, and from his observa-
tion of the witnesses the Trial Examiner is not persuaded that the reasons advanced
by the Respondent for Beechim's discharge are the real reasons therefor but is
convinced that the advanced reasons were merely a pretext on the part of the
Respondent. The Trial Examiner therefore finds that on September 25, 1957, the
Respondent discharged Edward R. Beechim because of his activities on behalf of
the Charging Party.
B. The discriminatory discharge of John F. Crispo
Pursuant to an order duly made by the Regional Director for the Board's First
Region, the deposition of John F. Crispo was taken in Los Angeles, California, on
August 27, 1958. The General Counsel and the Respondent were represented by
counsel who noted various objections on the record which have been considered by
the Trial Examiner.
In his deposition John F. Crispo testified that he was employed as a truckdriver
by the Respondent from the last week in May until November 18, 1957; that while
so employed he joined "Watch City Union" which represented the Respondent's
drivers under a contract; that sometime in September 1957, he and Beechim ob-
tained the signatures of 15 of their fellow employees to "application cards" for the
Charging Party which Beechim and he had asked to attempt to supplant Watch
City; that ore of those signing a card was Foreman Cardillo.
According to Crispo, some time in September, during a conversation regarding
"other matters," President Malone told him that "he had just let him [Beechim] go."
Crispo testified that sometime between October 10 and 21, the members of Watch
City voted to dissolve the organization; that before this meeting President Malone
called him to his office and asked if he knew anything about the. applications being
distributed by the Charging Party, to which he replied that he did not and denied
being approached by anyone with such a request, telling Malone that as "bottom
man on the seniority list" he had nothing to gain by signing an application; that
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Malone told him "You'd be smart to stay with the Independent." The entire con-
versation lasted some 10 minutes.
Crispo further testified that after the members of Watch City voted to disband
the organization, fixing the time as "about a week before" his discharge, President
Malone called Crispo to his office where according to Crispo:
Well, he called me in, and he says, "What kind of stuff are you trying to pull
off here?" He says, "You said that you didn't sign an application and that
you had nothing to gain by it." He says, "Then you go down to the meeting,"
he said, "and you shoot off your mouth about better conditions, and for Local
25." He said, "I just can't understand it."
According to Crispo, he then told Malone he joined the Charging Party in order to
protect his job. He further testified that Malone then told him if the Charging
Party was selected by the employees that he would "have to sell my place." Malone
denied making this statement.
Crispo further testified that he told Malone that Beechim had been discharged and
not given a reason therefor, Malone replying that "he gave Beechim his reason."
Crispo testified that on November 18, 1957, he reported for work at 7 a.m.,
worked until 10 a.m. and was then told by Dispatcher Rizzo "that was all for
today"; that at 6 p.m. he telephoned Rizzo regarding work for the next day and
was told "there will be nothing for you tomorrow"; however, the next morning
Crispo came to the Respondent's yard and observed two drivers of lesser seniority
than himself working; that he asked Rizzo the reason, was given an obviously false
excuse and told by the dispatcher that he "would have to see Mr. Malone" who
would not be in until 10:30 a.m.; that:
I called him [Malone] on the phone Tuesday night at 6:00 o'clock; that was
November 19th, and that's when Mr. Malone told me that there would be
nothing for me, and he repeated himself, repeated there would be nothing for
me, no work at all.
Q. Is that all that Mr. Malone said , that there just wouldn't be any more
work for you?
A. That's all.
Crispo testified thereafter he was never given work nor any reason for the
Respondent's failure to do so.
According to Crispo during his entire employment with the Respondent he was
involved in no accidents nor had Rizzo or Malone "said a word to me about having
an accident," nor had -there been any complaint regarding his work.
President Malone testified that the Respondent had and maintained a rule requir-
ing all drivers to promptly report any accidents; that on November 15, Crispo was
involved in an accident damaging a piece of the Respondent's equipment which he
did not report; according to Malone he personally saw Crispo hit a trailer standing
in the Container Corporation's yard. Malone testified:
We, I saw him hit the trailer when the trailer was brought into the yard. I
says to my brother, I went in the office, I said to my brother, "Go down and
take a picture of that trailer down there," and Rizzo and I went down there.
Contrary to Crispo's deposition that Malone merely told him in a telephone conver-
sation "there would be nothing for me" and that neither he nor Rizzo accused him
of "having an accident," which in fact he did not have; Malone further testified:
Q. Will you explain your reason for waiting -three days?
A. I waited to see if the man was going to report the accident. The first
night he pulled in, the first day I saw him, and he never said a word; and the
next day he never said a word, so on the third day I called him into my office
and I asked him why he didn't report hitting that trailer; and he just stood
there and said nothing. I says, "Crispo," I says, "why didn't you report this
trailer that you hit it? You know that we want these accidents reported," I
said, "You have heard me talk to the whole organization that, if you don't
report an accident, you stand to be fired. What are you trying to do?" And
he still wouldn't say nothing, so I says, "Well, that's the story, here it is, that
is what we decided upon, and that is a standing order that a man that does
not report an accident is automatically discharged."
Q. And did you discharge him on that day?
A. Yes, sir.
On cross-examination Malone testified that at 4:30 p.m. of November 15, from
a window in the second floor of a building of the Container Corporation he saw
Crispo hit a trailer as he backed into the yard; that he was the only witness to the
C. MALONE TRUCKING, INC. 427
accident; that he said nothing to Crispo regarding the incident at that time or at
any time until he discharged Crispo. Regarding the damage to the equipment
Malone testified, "it wasn't serious, it wasn't too serious . probably $75."
Malone testified that the picture, which was admitted without objection, was taken
the day after the accident. He testified he showed the picture to Crispo at the
time he was discharged but admitted that he did not show the photograph to the
Board's field examiner who called on him in connection with his investigation
because "he never asked for it."
Rizzo was not called by the Respondent, nor was President Malone's brother who
allegedly took the photograph, nor were any receipted bills or other evidence intro-
duced to show the repair of the alleged damage.
The Trial Examiner did not have the advantage of observing Crispo while testi-
fying; however, Malone's testimony did not have the ring of truth, the Trial
Examiner being left with the impression on the entire record and from his observa-
tion of Malone that Malone's testimony regarding an unreported accident in which
Crispo was involved on November 15, 1957, as well as Malone's account of his
discharge of Crispo on November 18, is not factual.
The Trial Examiner therefore credits John F. Crispo as against President Charles
Malone and finds that the Respondent discharged John F. Crispo on November 18,
1957, not because he failed to report an accident but because of his membership in,
and activities on behalf of, the Charging Party.
Concluding Findings
On all the evidence considered as a whole and from his observation of the
witnesses, the Trial Examiner finds that by the discharge of Edward R. Beechim
on September 25, 1957, and John F. Crispo on November 18, 1957, as herein
found, the Respondent did discriminate and is discriminating in regard to the hire
and tenure and ,terms and conditions of employment of the employees named above
thereby discouraging membership in a labor union and thereby did engage in and
is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the
Act.
The Trial Examiner further finds that by President Charles Malone's interrogation
of employee William Pooler; Malone's interrogation of employee Charles A.
Withrow, and his interrogation of Employee John F. Crispo, all as herein found,
and by the discharge of Beechim and Crispo the Respondent did interfere with,
restrain, and coerce and is interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act and thereby did
engage in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The Respondent's activities, set forth in section III, above, occurring in connec-
tion with the Respondent's operations described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain, unfair labor practices
it will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the hire and
tenure of employment of Edward R. Beechim and John F. Crispo it will be recom-
mended that the Respondent offer them immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority or
other rights and privileges, and that each be made whole for any loss of pay he
may have suffered by reason of the discrimination, by payment to him of a sum of
money equal to that which he would normally have earned as wages from the date
of the discrimnation to the date of the Respondent's offer of reinstatement, less his
net earnings during such period .3 The back pay shall be computed in the manner
established by the Board,4 and the Respondent shall make available to the Board
its payroll and other records to facilitate the checking of amounts due.
8 Crossett Lumber Company, 8 NLRB 440.
6 F. W. Woolworth Company, 90 NLRB 289.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent, C. Malone Trucking, Inc., Waltham, Massachusetts, is
engaged in commerce within the meaning of the Act.
2. Local 25, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Charging Party) is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discriminating in the hire and tenure of employment of Edward R.
Beechim and John F. Crispo, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3) of the Act.
4. By such discrimination and by interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed in Section 7 of the Act, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from .publication.]
Park Plaza Amusement Company and International Union of
Electrical , Radio and Machine Workers , AFL-CIO, Petitioner.
Case No. .32-RC-1224. August 11, 1959
DECISION AND ORDER
Upon a petition duly filed, a hearing was held before a hearing
officer of the National Labor Relations Board. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Bean, and
Fanning].
Upon the entire record in this case, the Board finds :
The Employer, a Tennessee corporation operates a bowling alley
and billiards establishment in Memphis, Tennessee, and in 1958, had
a gross business of approximately $300,000, of which only a nominal
amount was received from out of the State of Tennessee. Thus, the
Employer on the above basis fails to meet our current jurisdictional
standards for retail establishments.'
However, the Petitioner contends that the Employer and another
corporation, Malco Theatres, Inc.,' are integrated enterprises so as to
constitute a single employer for the purposes of the Act. M. A.
Lightman, Jr., is president of Maoco and of the Employer and four
1 Carolina Supptiea and Cement Co., 122 NLRB 88. Cf. Magic Mountain, Inc., 123
NLRB 1170.
2 Malco Theatres, Inc., a Tennessee corporation owns or controls approximately 45
theatres In various States and does a gross volume of business in excess of $500,000
yearly.
124 NLRB No. 53.