Crew Builders Supply Co.

National Labor Relations Board - Board Decisions

Sep 28, 1965

154 N.L.R.B. 1747 (N.L.R.B. 1965)

CREW BUILDERS SUPPLY CO. 1747
picketing at the Petitioners' Mill Cafe by the Union and by Otho Pul-
liam, Carl West, and Ann Belk.
2. The Petitioners, a partnership, operate a restaurant and tavern,
known as The Mill Cafe and located on U.S. Route 66 near Mount
Olive in Macupin County, Illinois. The Petitioners' patrons consist
of local people and tourists and transients on U.S. Route 66. The
Union notes that the Petitioners have admitted that their annual gross
volume of business is less than $500,000, although the State court made
no finding with respect to the aforesaid commerce data.
3. In refusing to grant the injunction sought, the State court has
taken the position that "it will decline jurisdiction over this matter
until the National Labor Relations Board has issued an opinion as to
whether or not it will assert jurisdiction over this matter ... [and]
it will not exercise jurisdiction unless and until the National Labor
Relations Board issues an opinion indicating that the Board will not
assert jurisdiction."
4. There is no representation or unfair labor practice proceeding
involving the parties herein pending before the Board.
On the basis of the above, the Board is of the opinion that:
1. The Petitioners are a retail enterprise operating a restaurant
and tavern on U.S. Route 66, near Mount Olive, Macoupin County,
Illinois.
2. The Board's current standard for the assertion of jurisdiction
over retail enterprises within its statutory jurisdiction is an annual
gross volume of business of at least $500,000. Carolina Supplies and
Cement Co., 122 NLRB 88, 89. The Petitioners' annual gross volume
of business is less than $500,000 and therefore does not meet the mone-
tary test for invoking the Board's discretionary standard for the asser-
tion of jurisdiction over retail enterprises.
Accordingly, the parties are advised, under Section 102.103 of the
Board's Rules and Regulations, Series 8. as amended, that on the basis
of the allegations submitted herein, the Board would not assert juris-
diction over the Petitioners' operations.
Crew Builders Supply Co. and Truck Drivers, Chauffeurs and
Helpers Local Union No . 100, International Brotherhood of
Chauffeurs, Teamsters, Warehousemen and Helpers of America.
Case No. 9-CA-3371. September 28,1965
DECISION AND ORDER
On June 29. 1965. Trial Examiner Maurice S. Bush issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
154 NLRB No. 130.
1748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Deci-
sion. Thereafter, Respondent filed exceptions to the Decision.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
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 thereto, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions 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
Respondent, Crew Builders Supply Company, Norwood, Ohio, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
I As an alternative to its exceptions , Respondent moved to reopen the hearing . In sup-
port of its motion Respondent submitted the affidavit of Henry Shropshire , in whose
presence the alleged violations took place . The affidavit supported the testimony of Re-
spondent 's president and general manager. However , beyond Respondent 's assertion that
the evidence was "newly discovered " there is nothing to indicate that Shropshire could not
have testified at the hearing . Indeed, It appears that at the time of the hearing , Shrop-
shire was employed as a mechanic at the Respondent 's plant. The Board will not con-
sider evidence submitted after the close of a hearing unless it was not available at the
time of the hearing. Himes Brothers Dairy Company , 89 NLRB 531. The motion is
denied. Respondent' s statements and argument in support of its motion have been treated
as exceptions to the Trial Examiner 's Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The twofold issue in this proceeding is (a) whether the Respondent threatened cer-
tain of its employees with a layoff if they joined the Union, and (b) whether Respond-
ent thereafter laid off two of such employees because they became union members, all
in violation of the unfair labor practice provisions of Section 8(a) (1) and (3) of the
Act.
The complaint herein, based on a charge dated November 9, 1964, was issued on
December 8, 1964. The answer of the Respondent admits the jurisdictional allega-
tions of the complaint, but denies the allegations of unfair labor practices and affirma-
tively alleges that the two alleged discriminatees were laid off "because of lack of
work and for no other cause."
The case was heard before Trial Examiner Maurice S. Bush at Cincinnati, Ohio, on
April 5, 1965. The matter was submitted on oral argument and a brief filed by
Respondent.
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
CREW BUILDERS SUPPLY CO. 1749
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent, an Ohio corporation, with its principal place of business in Norwood,
Ohio,' is engaged in the retail sale of ready-mixed concrete and building supplies.
During the past calendar year, Respondent sometimes called Company, had gross
sales in excess of $500,000 and had a direct inflow of goods and materials, in inter-
state commerce, valued in excess of $50,000 which were purchased and shipped
directly from points outside the State of Ohio to Respondent's place of business in
Ohio.
II. THE LABOR ORGANIZATION INVOLVED
Truckdrivers, Chauffeurs and Helpers Local Union No. 100, International Brother-
hood of Chauffeurs, Teamsters, Warehousemen and Helpers of America, hereinafter
called the Union or Charging Party, is a labor organization within the meaning of
Section 2(5) of the Act.
III. BACKGROUND AND FACTS RELATING TO ALLEGED UNFAIR LABOR PRACTICES
Peter Minnich, age 62, and Henry Alvin Minnich, Sr.,2 age 48, brothers, were laid
off by Respondent on November 7, 1964, after some 31 and 28 years, respectively,
of virtually continuous service, as automobile mechanics in Respondent's three-man
garage.
The two brothers testified that their layoffs followed a warning received from
Respondent's president, Sidney Crew, on October 15, 1964, that he would lay off two
of the Company's three mechanics if they joined the Union. The layoffs occurred the
day after an election on November 6, 1964, in which the two brothers and the third
mechanic in the garage voted unanimously to have the Union represent them as a unit
in labor negotiations with Respondent.
President Crew, testifying for Respondent, denied that he made any such warnings
or threats to his garage employees or that he even spoke to the mechanics on the day
of the alleged threats. He further testified that the layoffs were due entirely to poor
business conditions and to a lack of work for the mechanics.
This direct conflict of testimony necessarily calls for resolution against the entire
backdrop of the surrounding facts brought out at the hearing.
The present business of the Company was founded in 1907 by its aforementioned
president, Sidney Crew, now 82 years of age and still vigorous of mind and body.
The active day-by-day management of the business, however, is in his son, Sampson I.
Crew, commonly referred to as Sam Crew, who is vice president, treasurer, and
general manager of the Company. Sam Crew has handled all labor contract negotia-
tions for Respondent for many years. The Company has had its present place of
business and plant at Norwood since 1909. Despite his age, Sidney Crew spends
some time at the company office and plant each day and is in the habit of dropping in
at the plant's garage for a few minutes each morning and afternoon.
Respondent's business, as a supplier of ready-mixed concrete and masonry building
supplies to contractors engaged in the construction of homes and apartment buildings,
has been a declining and money-losing venture for a number of years. Profit-and-loss
statements of record herein for the past 5 years reveal declines in gross sales, net
operating losses, and total payrolls as follows:
Years Gross sales Net operating
losses
Payrolls
1960----------------------------------------------------- $1,241,644 $53,087 $243,200
1961----------------------------------------------------- 1,037,300 57,286 215,059
1902----------------------------------------------------- 978,459 62,023 209,916
1963----------------------------------------------------- 880,116 21,620 190,091
1964----------------------------------------------------- 772,603 35,514 176,633
1The complaint alleges Cincinnati , Ohio, as Respondent's principal place of business;
the answer inferentially, but not directly, denies this by alleging that Respondent's prin-
cipal place of business is Norwood Ohio. Norwood is a suburb of Cincinnati, with a
population in excess of 35,000 . The affidavit of service on the complaint shows that
Respondent's mailing address Is 2120 Madison Avenue, Norwood Station, Cincinnati 12,
Ohio. It is found that Respondent 's principal place of business is Norwood , Ohio, and
that its mailing address is: Crew Builders Supply Co ., 2120 Madison Avenue, Norwood
Station , Cincinnati, Ohio.
2 Hereinafter generally referred to simply as Henry Minnich.
1750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quick and expeditious delivery, particularly of ready-mixed concrete, is an essential
function of Respondent's business . The Company has an inventory of 20 pieces of
delivery equipment, of which 14 are ready-mix concrete trucks, 4 flatbeds, and 2 dump
trucks. The equipment is quite old, there are no units as recent as 1961; many of
the pieces are 1955 models and many more predate 1955. One of the Company's
dump trucks is a 1940 or 1941 model. The motors in the vehicles have been replaced
a number of times. There is evidence that much of the ready-mix concrete equipment
has been made obsolete by modern equipment with far greater capacity to haul con-
crete and this may account for Respondent's loss of business in recent years. From
the entire record, it is found that Respondent's delivery equipment by reason of its age
requires constant and vigilant repair to keep it in running order.
Respondent has maintained a three-man garage for many years to repair, recondi-
tion, overhaul, and paint its rolling stock and to keep it in operating order. The
mechanics employed in the garage have been the aforementioned two Minnich
brothers and a third mechanic by the name of Henry Schropshire, age 63. The three
mechanics have had employment by Respondent for an average of more than 30 years.
Respondent's business, having to do with supplies for construction, is a seasonal busi-
ness. In the busy building season, roughly between March and November, the
mechanics are engaged primarily in making such routine adjustments and repairs as
required to keep the equipment in operating condition. In the remaining dull winter
months, the mechanics utilized their time for major overhauling jobs for which there
is little or no time during the busy season. The mechanics are at their busiest in the
winter getting equipment in good mechanical order for the spring rush.
In addition, the mechanics were called upon to do major repairs on the mechanical
equipment in Respondent's concrete block manufacturing plant which in recent years
accounted for about 10 percent of the Company's gross sales. Respondent sometime
in early September 1964 terminated its concrete block manufacturing activities
because it found it could buy concrete blocks for resale from other manufacturers
cheaper than it could manufacture such blocks. During the years it ran its concrete
block plant, Respondent employed two or three men to operate the machinery of the
plant; these men took care of the ordinary day-by-day adjustments and routine repairs
required by the machinery.
Respondent's three mechanics were also called upon to repair and paint company
automobiles used by salesmen and to do sundry jobs in and around Respondent's
premises and in the personal households of the two Crews
Except for the three mechanics, Respondent has had a union shop since 1940 in
which its employees, consisting for the most part of drivers and yardmen, were at all
times represented by the Charging Party The unionization of Respondent's plant
(except for the mechanics) in 1940 was brought about at Respondent's request
because the Company found it had to have a union shop to secure much of its
business.
Some 20 years ago when the Charging Party also sought to cover the three
mechanics with a union contract, the Company through Sam Crew, its aforementioned
general manager, requested the Union "to leave them fthe mechanics] alone for
awhile" on the plea that "we are working everyone else Union and if we ever thought
it was the right time we would talk to them about it." In the intervening 20 years
including some years in which it had gross annual sales of $3 million, the Company
has never sought at its own initiative to cover its three mechanics in a contract with
the Union.
At the time of the layoffs of the two Minnich brothers, the Company was paying
its yardmen and concrete employees (as one group) and its drivers (as another) an
average wage of $2.90 and $3 per hour, respectively, under the terms of contract
with the Charging Party. The hourly wage of Peter Minnich, as head mechanic, and
his brother Henry Minnich, at the time of their layoffs were $2.10 and $2, respectively.
The hourly wage of the third mechanic, Henry Shropshire, was also $2.
For many years the three mechanics in Respondent's garage worked 10 hours a
day, 5 days a week, and 5 hours on Saturday, or a total of 55 hours per week, with
time and a half for hours over 40 hours per week.3
Sometime in August or September 1964, the record is not clear as to the precise
time, President Sidney Crew reduced the workweek of the mechanics from 55 hours to
40 hours, with the explanation that the reduction in hours was necessitated by poor
business conditions. A week later, at the entreaties of the mechanics and with the
realization that their cut in hours had been pretty severe, President Crew restored 4 of
s Although there is no direct evidence on this, overtime for the mechanics at time and
a half of the regular rates, is inferred and found from the fact that Respondent paid all
of its other employees time and a half for work over 40 hours per week . See Respondent's
Exhibits Nos. 1 and 2.
CREW BUILDERS SUPPLY CO . 1751
the hours that had been cut, thus giving them a 44-hour week as against the 55-hour
week they had been working for years.
Shortly after the initial reduction in their workweek from 55 hours to 40 hours, the
three automobile mechanics sought out the Union shop steward and secured from him
union cards which they signed and turned in. The Charging Party on or before
October 14, 1964, filed a petition for a unit election among Respondent' s garage
employees to which the Respondent consented. The election was held on Novem-
ber 6 at which all three mechanics voted in favor of the petition. On the next day,
November 7, Peter and Henry Minnich, two of the three mechanics, were laid off by
the elder Crew. On November 16, the Charging Party was certified by the Board as
the representative of Respondent's three-man garage unit. The events that transpired
on October 15 and November 7 are of importance to the issues of this proceeding.
The Company had received notice just prior to October 15 that the Charging Party
was seeking an election to represent Respondent's mechanics. November 7, as noted,
is the date on which the two Minnichs were laid off.
With respect to October 15, the two Minnichs testified that the elder Crew on
that day came over to the garage and addressing himself to the mechanics, told
them that if they joined the Union, he would lay off two the three mechanics but
did not specify which two. The precise testimony of Henry Minnich in this con-
nection was: "Well, he [the elder Mr. Crew] said if you join the Union, he would
have to lay us off a couple of months." The precise testimony of Peter Minnich,
who is the much more articulate of the two brothers, in this connection was ".. .
he [the elder Mr. Crew] told us he would lay us off if we joined the Union."
The elder Crew in his testimony denied that he made the above-quoted remarks
to his mechanics and even denied that he spoke to the mechanics at all on October 15,
although the evidence shows that he generally visits the garage twice a day. Crew
further testified that "At no time" did he say anything to the three mechanics ".. .
about joining or not joining the Union ...."
With respect to November 7, Henry Minnich's testimony relates that the elder
Crew on that day said to them ". . . being as you joined the Union, I am going to
have to lay you off and that's all he said and we didn't give him any answer."
The elder Crew in his testimony denied that he made any reference to the Union
at the time he laid the Minnich brothers off. He testified that he simply informed
the two brothers that he would have lay them off; that the layoffs were being made
in accordance with seniority; and that they would be rehired on the basis of seniority
when there was work.
The elder Crew testified that at the time the Minnich brothers were laid off, the
Company's trucks were in "very good condition." I do not credit this testimony
because Respondent's equipment was quite old, one of the dump trucks dating back
to at least 1941, and because for many years prior to their layoffs the Minnich
brothers were employed 12 months of the year, 55 hours a week, to keep the equip-
ment, which was getting older and not younger, in operating condition. I credit
the testimony of Peter Minnich, head mechanic, that at the time of his layoff there
were a number of trucks "... sitting in the garage. They weren't fit to run, they
needed work on them."
Both of the Crews, father and son, denied that they used any of their yardmen
after the layoffs of the Minnichs to do the mechanical work the Minnichs had
formerly done. I do not credit these denials because as shown below the record
shows the contrary.
After the layoffs of the Minnichs, the evidence shows that James A. Meyer, rep-
resentative of the Charging Party, received complaints that Respondent was utiliz-
ing its yardmen to do the garage work formerly done by the Minnichs; that he
called on Respondent's general manager, the younger Crew, with demands that the
Company forthwith cease and desist from this practice; that the younger Crew
hotly insisted upon the right, under his interpretation of the company contract with
the Union, to use the yardmen for mechanical work; that the union representative
thereupon threatened a strike unless the Company stopped the use of yardmen for
mechanical work; and that the argument was finally resolved in the law office of
counsel for Respondent in this case , upon whose advice the Respondent did stop
the use of yardmen for the repair of trucks in the Company's garage. The findings
in this paragraph are based on the testimony of Meyer to which the Respondent
offered no rebuttal.
The above-described conferences of Meyer as the representative of the Charging
Party, or Union, with the younger Crew and with Respondent's counsel, took place
in the forepart of February 1965.
Effective as of February 15, 1965, Respondent became a party to a contract with
the Charging Party covering the Company 's garage employees as a unit. Under
1752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the terms of the contract the wage scale of the garage employees was raised from $2
to $2.98 an hour. This placed the wage scale of Respondent's mechanics for the
first time roughly on par with the Company's truckdrivers and yardmen.
The hearing herein commenced on April 5, 1965. Respondent recalled Henry
Minnich to work on March 29, 1965, a week before the trial opened. The Company
asserts that Henry Minnich has seniority over his older brother Peter by reason of
a short break in the service of Peter with the Company many years ago and have
for this reason recalled Henry, rather than his brother, Peter. At the time of the
hearing Peter was still waiting to be recalled by Respondent.
Respondent has its heaviest payroll during its busy season between the months of
March and November. In the remaining winter months of the year when there is
little construction going on, Respondent lays off most of its drivers and yardmen
on a seniority basis and retains only a skeleton crew of such workers.
Apart from the reduction in the amount of its 1964 payroll attributable first to
the reduction of the overtime for the Minnich brothers in August or September and
later by their layoffs as of November 7, the Company's payroll records for 1964
show only a drop of about two employees as compared with 1963.4
At the height of the construction season, Respondent employs 14 truckdrivers and
7 yardmen from its seniority list (General Counsel's Exhibit No. 2) plus such addi-
tional nonseniority, temporary help as required. At the time the Minnichs were
laid off, the Company had about 12 drivers and several yardmen working.
Discussion and Conclusions
I find and conclude from the entire record that:
(1) Respondent on October 15, 1964, through President Sidney Crew, threatened
the three mechanics in the Company's employment, including the two Minnich
brothers, with layoffs if they joined the Union.
(2) Respondent through its said president informed the two Minnichs on Novem-
ber 7, 1964, when they were laid off, that their layoffs were due to the fact that
they had joined the Union.
(3) The layoffs here under consideration were not "because of lack of work" as
alleged in Respondent's answer to the complaint, but were due to the fact that the
two Minnich brothers had joined the Union.
Respondent's defense at the trial and in its brief is that "Mr. [Sidney] Crew did
not tell the two men or Schropshire, the other mechanic, that they would be laid off
if they joined the union."
I do not credit this denial of the elder Crew and similarly do not credit his fur-
ther denial that he did not tell the two Minnich brothers on November 7 that he
was laying them off because they had joined the Union.
These denials are not credited for a number of reasons. One is that the elder
Crew's testimony on other relevant and important matters is so inconsistent with
the true facts of record as to compel the conclusion that no reliability can be
assigned to Crew's denial that he made any reference to the Union in his talks with
the three mechanics on October 15, and with the two Minnich brothers on Novem-
ber 7 when he laid them off.
One instance of the unreliable nature of the elder Crew's testimony is his state-
ment that the Company's trucks were "in very good condition" in November when
he laid the Minnichs off. This statement is patently not true because the trucks had
just come through 8 months of hard use during the Company's busy season; also
because the trucks were very old, one dating back to 1941; and also because prior
to 1964 Respondent had found it necessary to work its three mechanics 55 hours
per week, the year around, in order to keep its rolling stock in operatable order.
Under the circumstance, I credit, as noted above, the testimony of Head Mechanic
Peter Minnich, that in November of last year when he was laid off there were a
number of trucks "sitting in the garage" awaiting repairs because "They weren't fit
* Respondent's payroll for 1964 was some $13 , 500 less than in the preceding year.
About $2,400 of this is attributable to the combination of the reduction of the weekly
hours of employment of the Minnichs from September 1 to November 7 and to their lay-
offs from and after November 7. The remaining $10,100 could be accounted for by the
reduction in force of no more than two other employees (drivers or yardmen) whose
wage scale is about $2 90 an hour as shown above or by a reduction of hours of work
of the drivers and yardmen without reduction of force equivalent to the elimination of
two drivers or two yardmen.
CREW BUILDERS SUPPLY CO. 1753
to run, they needed work on them." The dull winter season has been traditionally
the time of the year in which the heavy repairs to the rolling stock are made in
preparation for the coming construction season. It is found that Respondent did
not lay the Minnichs off for lack of mechanical work.
Another related inconsistency between the testimony of the elder Crew and the
facts established of record was his emphatic and repeated denial that the Company
used yardmen after the layoff of the Minnichs to do the mechanical work they
formerly did. This denial cannot be given any weight because as shown above the
uncontroverted testimony of the representative of the Charging Party shows that
the Company did in fact use yardmen to do the mechanical work formerly done by
the Minnichs. In this connection, the record shows that the Charging Party threat-
ened the Company with a strike unless they stopped this practice; that the Company
at the advice of counsel gave up the practice; and that the Company almost imme-
diately thereafter entered into a contract with the Union covering its mechanics and
a few weeks later rehired one of the Minnich brothers.
The testimony of the Minnich brothers, on the other hand, is free of any such
similar inconsistencies. Accordingly, their testimony concerning the hostility shown
by the elder Crew toward the Union in his above-described statements to them of
October 15 and November 7 is entitled to and is given full credence. The fact that
the elder Crew laid the two Minnichs off the day after the representation election at
the plant is a further circumstantial corroboration that he made the threats of
October 15 as testified by the Minnich brothers.
Despite the efforts of the elder and younger Crews to show that Respondent is
sympathetic to unions, I detect and find that Respondent over the years has shown an
union animus toward the organization of its mechanics. While it is true that the
Respondent invited a union shop in 1940, albeit for business reasons,5 the record is
clear that the Respondent exerted every effort to keep its mechanics isolated and
insulated from union membership. Thus 20 years ago when the Union sought to
organize Respondent's mechanics, the younger Crew successfully pleaded with the
Union "to leave them [the mechanics] alone for awhile" on the ground that "we are
working everyone else union and if we ever thought it was the right time we would
talk to them about it." The "right time" never came, even when the Company was
having very prosperous times with gross annual sales of $3 million. Respondent
benefited substantially over nearly 25 years from the nonunionization of its mechan-
ics, as can be concluded from the fact that just prior to February 15, 1965, when its
first union contract covering mechanics became effective, Respondent was paying
its mechanics $2 an hour as against the $2.98 an hour it now pays them under the
contract. The effect of the contract is to place the mechanics for the first time in nearly
25 years on par with the substantially higher wage scale of Respondent's far more
numerous truckdrivers and yardmen.
Under all the surrounding circumstances, Respondent's union animus can be and
is further inferred and found from the specific fact that the two Minnich brothers
were laid off the day after they participated in a representation election at the plant.
The Respondent has been operating at substantial losses in recent years. It is not
uncommon for an employer who is losing money to lay off employees in order to
cut expenses without in any way engaging in unfair labor practices, but where as in
this case the layoffs are preceded by threats of layoffs for union activities and the
layoffs themselves are accompanied with remarks directly attributing the layoffs to
union activities by the involved employees and the record further shows, directly
and inferentially, a resistance over the years to the unionization of the class of
employees here in geustion , there is a clear violation of the provisions of Section
8(a)(1) and (3) of the Act. The fact that the layoffs were made by the 82-year-old,
semiretired elder Crew, rather than by his son, Sam Crew, who has been general
manager and in charge of the Company's labor negotiations for many years and has
the responsibility for the hiring and tenure of employees of Respondent, is another
indication that the layoffs of the Minnich brothers was an irregular act motivated
by union animus, understandingly brought on by the fear, seemingly panicky, that
unionization of the three mechanics with its inevitable wage increase would fur-
ther embarrass and increase the Company's financial burdens.
5 The record shows that Respondent Invited the Union to organize its plant so that
Respondent could attract business from unionized customers that it would otherwise have
to forgo It is a well-known fact that the construction business has for many years been
a highly organized industry . Respondent 's customers are construction companies.
1754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operation of Respondent 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
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
It will be recommended that Respondent offer Peter Minnich immediate and full
reinstatement to his former or substantially equivalent position, without prejudice
to his seniority and other rights and privileges, and to make him whole for any loss
of earnings he may have suffered by reason of the discrimination against him, by
payment to him of a sum of money equal to that which he would have earned as
wages from the date of the discrimination against him to the date of offer of rein-
statement and in a manner consistent with Board policy set forth in F. W. Wool-
worth Company, 90 NLRB 289. Interest on backpay shall be computed in the man-
ner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
It will be further recommended that Respondent make Henry Alvin Minnick, Sr.,
whole for any loss of pay he may have suffered as a result of the discrimination
against him, by payment to him of a sum of money equal to that which he nor-
mally would have earned from the date of the discrimination against him to the
date of the offer of reinstatement, less his net earnings (Crossett Lumber Company,
8 NLRB 440, 497-498) during said period, the payment to be computed on a
quarterly basis in the manner established in N.L.R.B. v. Seven-Up Bottling Com-
pany of Miami, Inc., 344 U.S. 344, with interest thereon computed at the rate of 6
percent per annum.
It will also be recommended that the Respondent preserve and, upon request,
make available to the Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of backpay and the right
to reinstatement under the terms of these recommendations.
It will also be recommended, in view of the nature of the unfair labor practices
the Respondent has engaged in, that it cease and desist from infringing in any man-
ner upon the rights guaranteed employees in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Truck Drivers, Chauffeurs and Helpers Local Union No. 100, International
Brotherhood of Chauffeurs, Teamsters, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
4. By laying off Peter Minnich and Henry Alvin Minnich, Sr., to discourage mem-
bership in a labor organization, Respondent violated Section 8(a)(3) and (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.
RECOMMENDED ORDER
Upon the basis of the above 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 Respondent, Crew Builders Supply Co.,
Norwood, Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Truck Drivers, Chauffeurs and Helpers
Local Union No. 100, International Brotherhood of Chauffeurs, Teamsters, Ware-
CREW BUILDERS SUPPLY CO. 1755
housemen and Helpers of America, or any other labor organization, by discharging,
laying off, or otherwise discriminating in regard to the hire or tenure of employment
of employees, or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the rights to self-organization, to form, join, or assist labor organi-
zations, to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which will effectuate the policies of the
Act:
(a) Offer to Peter Minnich immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of earning he may have suffered by
reason of Respondent's discrimination against him, as set forth in that section of
the Trial Examiner's Decision entitled "The Remedy."
(b) Make Henry Alvin Minnich, Sr., whole for any loss of pay he may have
suffered as a result of the discrimination against him, by payment to him of a sum
of money equal to that which he normally would have earned from the date of
discrimination against him, to the date of the offer of reinstatement, less his net
earnings (Crossett Lumbei Company, 8 NLRB 440, 497-498), during said period,
the payment to be computed on a quarterly basis in the manner established in
N.L.R.B. v. Seven-Up Bottling Company of Miami, 1nc.,.344 U.S. 344, with interest
at the rate of 6 percent per annum.
(c) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and other records necessary and useful to
determine the amount of backpay due under the terms of this Recommended Order.
(d) Post at its plant in Norwood, Ohio, copies of the attached notice marked
"Appendix." 6 Copies of such notice, to be furnished by the Regional Director for
Region 9, shall, after being duly signed by Respondent's representative, be posted
by Respondent immediately upon receipt thereof, and be maintained for 60 consecu-
tive days thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that such notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director, in writing, within 20 days from the date of
receipt of this Decision, what steps Respondent has taken to comply herewith?
0If 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. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree of
the United States Court of Appeals, Enforcing an Order" for the words "a Decision and
Order".
7 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 9, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Truck Drivers, Chauffeurs and
Helpers Local Union No. 100, International Brotherhood of Chauffeurs, Team-
sters, Warehousemen and Helpers of America, or any other labor organization
of our employees, by discharging or laying off employees for engaging in pro-
tected concerted activity, or in any other manner discriminating against any
individual in regard to his hire, tenure of employment, or any term or condition
of employment except as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Peter Minnich immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any loss of earnings he
may have suffered as a result of the discrimination against him.
1756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make Henry Alvin Minnich, Sr., whole for any loss of earnings he
may have suffered as a result of the discrimination against him.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor orga-
nizations, to join or assist the above-named or any other labor organization, to
bargain collectively through representatives of their own choosing, or to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities, except to
the extent that such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act.
All of our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named or any other labor organization.
CREW BUILDERS SUPPLY CO.,
Employer.
Dated------------------- By-------------------------------------------
(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, Room
2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No.
381-2200.
Sylvania Electric Products , Inc. and Local 352, International
- Union of Electrical, Radio and Machine Workers, AFL-CIO.
Case No. 3-CA-2452. September 28,1965
DECISION AND ORDER
On July 9, 1965, Trial Examiner Louis Libbin issued his Decision
in the above-entitled case, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices, and recommend-
ing that it cease and desist therefrom and take certain affirmative
.action, as set forth in the attached Trial Examiner's Decision. There-
after, the Respondent filed exceptions to the Trial Examiner's Decision
:and a brief in support thereof, and the Charging Party also filed excep-
tions to portions of the Decision to which the Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
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 case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
154 NLRB No. 149.