Eubank Tire Sales, Inc.

National Labor Relations Board - Board Decisions

Nov 22, 1976

226 N.L.R.B. 1103 (N.L.R.B. 1976)

EUBANK TIRE SALES 1103
Eubank Tire Sales, Inc. and Local # 178, United Rub-
ber, Cork, Linoleum and Plastic Workers of Amer-
ica, AFL-CIO. Case 9-CA-9921
November 22, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On July 27, 1976, Administrative Law Judge Anne
F. Schlezinger issued the attached Decision in this
proceeding. Thereafter, on August 13, 1976, Respon-
dent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
bership in the Union; that Carper interrogated an employ-
ee, Richard H. LeFevre, on or about November 25 and
December 5, in regard to membership in and activity on
behalf of the Union of LeFevre and other employees;2 and
that the Respondent has thereby engaged in and is engag-
ing in unfair labor practices within the meaning of Section
8(a)(1) and (3) of the National Labor Relations Act. In its
answer, duly filed, the Respondent admits some of the fac-
tual allegations of the complaint including the allegation as
to the supervisory status of Smith and Carper; denies the
unfair labor practice allegations; and asserts that it had no
knowledge at the time of the discharge of Seifer's union
activities, membership, or sympathies, and that he was dis-
charged for being tardy on a number of occasions when his
job required him to be present at the time the store opened.
Pursuant to notice, a hearing was held before me in Day-
ton, Ohio, on May 13, 1976. All the parties appeared at the
hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce rel-
evant evidence. At the close of the hearing, counsel waived
presentation of closing argument. Subsequent to the hear-
ing, on or about June 14, 1976, the General Counsel and
the Respondent filed briefs which have been fully consid-
ered.
Upon the entire record in this case and from my obser-
vation of the witnesses, I make the following:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Eubank Tire Sales, Inc.,
Dayton, Ohio, its officers, agents, successors, and as-
signs , shall take the action set forth in the said rec-
ommended Order.
DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Administrative Law Judge: Upon
a charge filed on December 29, 1975,1 by Local #178,
United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO, herein called the Charging Party or
the Union, the General Counsel of the National Labor Re-
lations Board, by the Regional Director for Region 9 (Cin-
cinnati, Ohio), issued a complaint and notice of hearing on
February 4, 1976. The complaint, as amended at the hear-
ing, alleges that Richard Carper, vice president and general
manager, and William K. Smith, store manager, are agents
of the Respondent and supervisors as defined in Section
2(11) of the Act; that on or about December 12, Carper
discriminatonly discharged Douglas D. Seifer, and at all
times since then has failed and refused to reinstate him,
because of his sympathy for, membership in, or activities
on behalf of, the Union, and in order to discourage mem-
i All dates hereinafter refer to 1975 unless otherwise indicated
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation engaged in the
sale of tires and related accessories at various locations in
and around Dayton, Ohio, annually sells goods valued in
excess of $50,000 which it causes to be shipped directly
from its Dayton, Ohio, facilities to points located outside
the State of Ohio. The complaint alleges, the Respondent
in its answer admits, and I find that the Respondent is, and
at all times material herein has been, an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent in its answer ad-
nuts, and I find that Local #178, United Rubber, Cork,
Linoleum and Plastic Workers of America , AFL-CIO, is,
and at all times material herein has been , a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2 Counsel for the General Counsel moved at the opening of the hearing to
add the allegation that the Respondent unlawfully interrogated LeFevre
and stated that he informed the Respondent prior to the hearing of his
intention to do so on the basis of newly discovered evidence Counsel for
the Respondent objected on the ground that he was so informed by tele-
phone the day before the hearing, and this was insufficient time to respond
adequately The amendment was permitted with the assurance that the Re-
spondent . if unable to present evidence thereon because of the short notice,
would be granted an extension of time upon request No such request was
made I find no merit , therefore, in the contention , repeated in the Respon-
dent's brief, that this amendment was untimely
226 NLRB No. 183
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES assistant manager , Applegate , also had a key and was
scheduled to arrive at 8 a in., but worked a floating sched-
ule at two stores , and it was generally Smith who unlocked
this store . Seifer tried to clean the shop just before he went
home but, if he was too busy, he did it first thing in the
morning, sweeping the floor, taking out tires , and putting
up tools to get the shop ready for that day' s operation. He
testified that only he and Smith were in the shop the first
half hour of the morning , that there were very few tire
customers then , that Smith did his paperwork and took
care of whatever customers did come in early, and that, if
there were tires to be changed , it was his job to do this.
Seifer also testified that he was often complimented on his
work not only by Smith but also by managers of other
stores ; that he never received any type of disciplinary or
warning action for his work or for tardiness ; and that
Smith spoke to him at times in this regard only about
working too many hours because Carper wanted to reduce
overtime work. Employees were paid overtime for work in
excess of 40 hours a week.
The timeclock at the Kettering store admittedly ran fast.
Seder testified that this had been so since he worked there,
that no one made an issue of it or attempted to repair the
clock, but that, when the clock was as much as 10-15 min-
utes fast , he told Smith , who adjusted it, and Smith did so
on his own occasionally. Seifer admitted he "was late a few
times . . . maybe 4 times," but testified that he could not
be sure how late "because of the inaccuracy of the time
clock"; that he considered it important to be on time in
any job ; and that he always advised Smith in advance
whenever he was going to be late, and Smith "just said
okay "
Smith , who has been the manager of the Kettering store
almost 4 years, testified that he had authority to hire and
discharge , but that he always in such matters consulted
with Carper , his immediate superior . At the time of the
events herein , Smith had three full-time employees, Morris,
Seifer , and Clapp. Smith testified that Applegate , a roving
assistant manager, came in usually 2 or 3 days a week; that
Applegate, who had a key, "is to arrive at the same time I
am," at 8 a.m., to assist him and, in his absence , to be the
store manager , that he was the one , except when he was
away, who opened the store ; and that, on the days Apple-
gate did not come , only he and Seifer were at the store at 8
a.m. Neither Smith nor Applegate punched a timeclock.
Smith also testified that Carper "always wants two people
there when the store is opened , due to security reasons";
that Seifer was also supposed to be there in order to assist
him in opening the store ; that Carper's orders were to clean
up the store every day before work began , but he did not
carry out these orders , and, if there was a customer, would
take care of the customer first ; that "Sometime I got it
cleaned, sometimes I didn't"; and that Seifer , in accord
with Carper's orders, "Not all the time, but when possible,
yes, he was supposed to clean up the store, sweep the
floors." Smith also testified that he changed tires, balanced
wheels, and performed similar tasks when Seifer or Clapp
was not there or when the workload required it; that he
could do all thejobs performed at the store except some of
the mechanical work done by Morris ; and that Seifer, in
addition to performing his cleaning and selling functions
A. The issues
The issues herein are whether or not the Respondent
unlawfully interrogated an employee , LeFevre , about the
union membership and activities of himself and other em-
ployees, and whether it discharged Seifer because of his
activities on behalf of the Union or for cause . The General
Counsel called as witnesses Seifer and LeFevre . The Re-
spondent called as its witnesses Smith and Carper.
B. Seifer's Employment
Seifer , who was 25 years old at the time of the hearing
herein , was employed by the Respondent in 1968 , when he
was about 18 years old and a senior in high school, for a
part-time job in the tire service department , repairing, re-
placing , and balancing tires, and doing stock work. After
completing high school , Seifer became a full-time employ-
ee until 1970 , when he went into service in the Air Force,
where he served for 4 years. His duties in the Air Force
involved mechanical work on aircraft When Seifer left the
Air Force , he looked for jobs that would pay more but,
after a few months , spoke to Carper , who had been a store
manager when Setfer went into the Air Force , and was
rehired by the Respondent on September 8, 1974 , at $2.50
an hour . The Respondent , which had five stores in the
Dayton area, assigned Seifer to the main store , but moved
him from time to time to different stores After about 6-8
weeks he was given a permanent position in the Kettering
store, where Smith was the store manager. Seifer testified
that he was again assigned to the tire service department
"but I took it on my own initiative to learn all the opera-
tions, the books, the prices of the tires , so that I could sell,
learn stock , inventory , I helped with maintenance control,
I did a lot of janitor work , just whatever had to be done at
the store ." As a result of his work performance , Seifer es-
tablished a good relationship with Smith , and helped him
with customer sales when as often occurred, Smith was
alone in the salesroom and could not handle all the cus-
tomers.
For a time Seifer received a clean uniform every day. He
considered this important as his tire work was dirty, and he
wanted to present a clean appearance in dealing , as he did
at times, with the public . He paid for half the cost of the
uniforms and the Respondent paid half. Carper directed,
however, that Seifer was to get only three uniforms a week,
so Seifer had to wear each uniform 2 days. Seder testified
that he told Smith he wanted clean uniforms to wear when
meeting the public , that Smith was understanding , but that
Carper 's directive remained in effect.
One of Seifer 's duties was to report for work when the
store opened at 8 a.m . in order to clean the store , and also
to avoid Smith being there alone for security reasons. Seif-
er testified that , when he began working at this store, he
came at times 5 to 10 minutes before 8, sometimes before
Smith arrived , and had to wait for Smith , who had a key, to
come and unlock the store ; that Smith was generally on
time but was occasionally a few minutes late; and that the
EUBANK TIRE SALES 1 105
and work on tires, "would help Mr. Morris out with the
mechanics, when it was possible."
C. Carper's October 17 Letter
The Kettering store employees, who were paid overtime
for hours over 40 a week, were for a time getting consider-
able overtime. They generally brought their lunches, ate
them in a back room at the store in about 15-20 minutes,
and then returned to work.
Carper, as vice president and general manager of the
Respondent, was in charge of all five Dayton area stores.
His responsibilities included hire and discharge of store
employees, but he testified that his practice was to ask for
a store manager's recommendation in such matters. Carper
sent a letter, dated October 17, addressed "TO KETTERING
STORE" and headed "SUBJECT WORKING HOURS," which set forth
the hours to be worked by Morris, Seifer, and Clapp; stat-
ed regarding the last two that "Opening and closing weeks
may be alternated"; provided that "Weekday lunch will be
45-min. periods" at stated intervals "so that two men will
be on the floor at all times"; and pointed out that "these
are maximum hours NOT required working hours and with
the slower season approaching I would expect the average
hours for Seifer and Clapp to be between 45 and 47 hours,"
and that "There will be absolutely no exceptions to these
hours without Bill Smith contacting me."
Seifer testified that this letter was placed on Smith's desk
with the written material on tire sales and prices, which he
checked regularly to keep current on such matters; that
while doing so he saw and read the letter; that he did not
know if Morris or Clapp saw the letter; that no one in
management ever showed him the letter or spoke to him
about it; and that this letter was not posted "until the day
I was fired," December 12. Seifer also testified that he was
late about four times, some before and some possibly after
the Carper letter, but that it was hard to tell precisely how
many times because of the inaccurate timeclock. He also
testified that Morris, the mechanic, had been working from
9 to 5 or 5:30 depending on when he finished his work, was
supposed under the new schedule to start at 8:45, but paid
no attention to this change and continued to come at 9;
that Clapp, who did the same work as he did on tires but
very little sales work, if any, was scheduled by Carper's
letter to come in at 8:30, but usually came sometime be-
tween 8:30 and 9; and that Clapp said he was once repri-
manded by Carper about being late.
Smith testified that, when he received this letter, he first
"took it around to the employees and let them read it,
showed it to them, brought it back and put it in the basket
which I have on the back of my desk . . . where everyone
has access to, it is a file where I keep the advertising, sched-
ules per week, because they all price tires, and the letter is
available there. Actually, anyone could have seen it, not
only the employees, as far as that was concerned." He ad-
mitted it was not posted on a bulletin board.3 Smith also
testified that "I would say Mr. Seifer saw it, because when
I got it, I went around to all the employees and it was Mr.
3 The document, placed in evidence by the General Counsel, was marked
"posted" but counsel for the Respondent stated that he wrote the word on
there under the impression it had been posted
Seifer who would also assist me up front in pricing tires
from the ads, and this letter was posted along with the
advertising." Smith testified further that he showed the let-
ter to each employee separately and discussed it with the
employees whenever possible, sometimes individually and
sometimes in a group. He explained regarding this letter:
"Mr. Carper gave me orders several months before this
letter came out, in which to have someone there when
opening and when closing and also to make . . . to be able
to control overtime hours, which he gave me orders, usual-
ly every Monday and Friday, that is when he got the time
cards, and/or the paycheck, but I was negligent in not get-
ting these orders handled, so Mr. Carper, this was before
the letter came out, then when he issued the letter, he did it
because I was not doing what I was supposed to do at that
time. In other words, he had told me beforehand that he
wanted someone there at 8:00 and he didn't want too many
overtime hours, so he more or less worked out this work
schedule for my store. And, he said he wanted it followed,
period." Smith admitted, on cross-examination, that the
document made no reference to tardiness.
Smith also testified that Carper complained to him re-
peatedly about all three of his store employees being late,
but about Seifer and Clapp more than about Morris; that
"I would imagine we are all tardy at times," and he himself
was late, but infrequently, only because of weather condi-
tions; that he told the employees about hearing from Car-
per on this subject and they should be on time; that he
never, when being criticized about this by Carper, recom-
mended discharge of any employee for tardiness; and that,
in relaying Carper's complaints to the employees, "I would
go out and I would tell all of them together, not any specif-
ic one, definitely, because I was working with them."
Smith also testified that the timeclock gained "I would
say, approximately, at the most, 4 minutes a week.... We
would set it back at the time when it was noticed.. . .
someone would say something to me and I would set it
back, it has been as high as from 5 to 7 minutes, I would
say." He also testified that the inaccuracy had to be called
to his attention because he did not punch a timeclock, and
that he did not, when Carper complained to him about
employees' hours of work, tell Carper about the timeclock
because "it wasn't off but 4 to 8 minutes every two weeks,
it was not noticed by me to start with, it was noticed by the
employees."
The employee time records were kept at the Springfield
store, and were used as a basis for computing weekly pay.
Carper testified that he knew about the problem of contin-
ued tardiness of all three employees named in the letter
from his weekly review of the timecards; that he wrote the
October 17 letter because of "Continued problems that I
could not get handled through the store manager, the exact
things the letters are about, hours and starting times"; that
he told Smith to be sure each employee read and was
aware of the letter, and it was posted for reference if any
questions arose; that Smith told him these instructions
were followed; and that the letter posted the hours of
Clapp and Morris as well as Seifer. Carper maintained
that, while the letter made no reference to tardiness, he
would read a notice setting forth the hours of work as a
warning about tardiness, and "anyone would interpret it
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same way." Carper also testified that he was at the
Kettering store one morning when Clapp arrived late, that
he reprimanded Clapp for this, and that, while only Clapp
was reprimanded, "that certainly gave the store and ev-
eryone in it my feelings about being late . . . that I would
not put up with it."
D. Work Rules
The only exhibit placed in evidence by the Respondent
is a document headed "RULES OF WORK," which states in part:
5. Following are rules of the firm . Violation will re-
sult in reprimand or discharge at the discretion of the
management:
b. Chronic tardiness or unexcused absence from
work. (Chronic-more than three (3) times in six (6)
months.)
Smith testified that these rules have been in effect for
years, that they were given to him when he was first hired,
that he assumed they were given to all employees when
hired but did not know as he had hired only Clapp, that a
copy was posted in the backroom for years but was taken
down when it became faded and illegible, and that it was
never replaced so was no longer posted.
Carper testified that the work rules are posted on the
bulletin board at the Kettering store; that he had not seen
them posted so did not know the condition of the notice,
but knew they were posted because Smith told him so; that
these rules refer to "Chronic tardiness or unexcused ab-
sence from work," and define chronic as more than 3 times
in 6 months; that no penalty therefor is set forth but he
assumed that, as this was a work rule, the penalty would be
termination; and that he did not know if any employees
had been discharged pursuant to that rule, but no employ-
ee has been discharged for tardiness without a warning or
reprimand for tardiness prior to discharge
E. Organization of the Union
The union activity was initiated by Seifer. In late Octo-
ber 1975, he called Humphreys, a representative of the
Union," who explained what would have to be done to
organize the Respondent's employees, and arranged to
bring Seifer some union literature and further information
on the following Saturday. Seder testified that he told all
the employees he was starting a campaign to try to orga-
nize the Union, that he talked to them in the backroom
where employees worked, ate lunch, and took breaks, "and
I did tell Bill Smith that there would be someone from the
Union coming out that Saturday, to speak with me," and
that "Mr. Smith knew that I wasn't very happy about some
of the things that were going on in the store, and I just told
him that I was going to try to organize a Union, I was
going to speak with someone at the Union Hall about orga-
Seifer testified that the Respondent's employees had organized the
Union years before when Seifer was a part-time employee, but that no
union was there when he left for the service
razing." He also testified , on cross-examination , that he got
along very well at the store for about a year ; that his un-
happiness stemmed from Carper's letter about the time
schedules which resulted in a reduction in hours and being
docked 45 minutes for lunch even when he returned to
work after only 15 or 20 minutes , at times in order to take
care of customers ; and that Carper refused to permit him
to have a clean uniform each day even at his own expense,
and he did not like to appear before customers wearing a
greasy uniform in which he had worked the preceding day.
He testified further, on cross-examination , that his union
activity was "common knowledge," that he spoke of it
"very openly," that "Mr. Smith run a family-type manage-
ment there at the store , we were all on very good terms and
I did speak with everyone, including Mr. Smith ," and that,
when he told Smith someone from the Union was coming
to see him on Saturday , Smith 's only response was to the
effect that he did not want to know anything about it.
When Humphreys came to the store on Saturday , Seifer
was working in the backroom . Smith went back and noti-
fied Seifer there was someone in the store to see him . Seifer
washed up and then went into the store . At this time Smith
was making preparations to set the alarm and close the
store. Humphreys brought with him a supply of union
cards and literature that he gave Seffer.
Richard LeFevre, who was then employed by the Re-
spondent as a truckdriver , delivered tires at all five stores
in the Dayton area , and was acquainted with personnel at
all these stores . Seffer had talked to him about union orga-
nization . When LeFevre came to the Kettering store on the
Monday afternoon after Humphreys ' visit, Seifer obtained
his signature on a union card, gave him a number of the
cards Humphreys had delivered so LeFevre could solicit
signatures at other stores , and kept the remaining cards.
Seifer and LeFevre estimated there were at that time about
22-25 eligible employees at all the stores , with about 12 in
the Springfield store which was the largest, and about 3 at
each of the other stores. LeFevre testified that he solicited
card signatures at the various stores when the men were on
lunchbreaks. He returned the signed cards to Seifer, who
mailed them to the Union . Seifer himself signed a card on
November 4. He telephoned the Union at one time, asked
about the progress being made, and was told that an elec-
tion petition was filed in November
Smith was asked by counsel for the Respondent whether,
as Seifer testified , Smith as well as all the Kettering store
employees knew about the union organization . Smith re-
sponded as follows:
A. At the time I knew about it definitely was the
time I got the petition or the Notice for Election in the
mail
Q. That notice came from the National Labor Re-
lations Board, is that right?
A Yes sir, that is when I knew about it definitely.
Q. And, you then reported that to Mr Carper, is
that correct?
A I called Mr Carper because I didn ' t even know
what it was at first , I hadn't ever seen one before.
On cross-examination, Smith testified that when the peti-
tion was filed was the first time he had "actual notice"
EUBANK TIRE SALES
about the Union; that "what I meant was, that is the first
time that I knew that there was anything involved with the
Company and the Union as far as an election was consid-
ered"; that he never saw or did not remember reading the
Board notice of the filing of a petition on November 18;5
that from the filing of the petition to the posting of the
election notice in February 1976, he never discussed the
Union with Carper, "not that I can recall", and that he
hears constant rumors about unions, but first heard of the
current campaign when he saw the election notice. Smith
testified further that, after he received the petition, which
he "forwarded downtown," he heard all three employees
talking about a union. Smith first denied that he heard the
employees talking about the Union before Seifer's dis-
charge on December 12, but then admitted he heard them
talking about the Union around this time in November and
also in December up to the time of the election. He main-
tained that it was not until the election that he learned the
identity of Humphreys; that Humphreys had come to the
store and asked for Seifer and on another occasion for
Clapp, but did not identify himself by name or position;
and that Seifer never told him someone from the Union
was going to come to the store. Smith also denied that
Seifer ever talked to him about the Union or about any
unions, and then stated that he could not recall Seifer
doing so
Carper admitted he had talked about the Union with
Smith and other store managers, but denied that they
"talked about any specific individuals and their activities."
He also testified that his discussions of the Union were
prompted by receipt of the election petition in the mail,
which came as a "shock" as it was "totally unexpected by
me" and others in management, and that "I had heard
nothing to indicate that we had a pending Union prob-
lem." Carper admitted that the Union had filed prior peti-
tions, and that the Union at one time had a contract with
the Respondent but was decertified in June 1972.
F Carper's Interrogation of LeFevre
LeFevre was employed by the Respondent , from about
March 1974 until he quit voluntarily on November 24,
1975, as a truckdriver whose work took him to all the Re-
spondent 's stores in the Dayton area. He solicited signa-
tures to union cards given him by Seifer while the men at
the various stores were on their lunchbreaks , and returned
the signed cards to Seifer.
In addition to his driving duties , LeFevre cleaned the
restrooms and offices at the Second Street store. On Mon-
day morning , November 24, he was cleaning Carper's of-
fice when , according to LeFevre 's testimony , Carper
"come in and he dust asked me if I knew anything about
the Union , about the white cards floating around the Com-
pany"; and that he said he did not , and "kind of jokingly
asked him if he was asking about a raffle . He said it
wasn't that , he saw it was pertaining to the Union trying to
get voted into the Company " LeFevre also testified that he
went to see Carper that afternoon to give a week ' s notice
`The petition, which was sent to the various store locations , was dated
Novembe r 18 and the letter to the Respondent November 19
1107
that he had obtained another job; that he told Carper he
would like to leave on Friday but would work through
Saturday if he was needed; and that on Wednesday, when
he came in from a trip, Rider, the manager of the Second
Street store, "informed me that Mr. Carper says, seeing as
how I was quitting, that Wednesday would be my last day,
which was November 26th."
LeFevre, who went back on December 5 to get his final
paycheck from the Respondent, testified that Carper saw
him in the lobby, asked him to come into the office to talk
for a minute, and he did so; that when they were in the
office Carper "said, `Seeing as how it doesn't concern you
anymore . ' if I knew anything about the Union, trying
to get into the Company, or who was doing it, who was
trying to get the Union into the Company"; that he again
said he did not know anything about it; that Carper asked
if he had had anything to do with it, and he denied it; and
that Carper then asked if he had signed "one of the white
cards," and he denied that.6
Carper admitted that he interrogated LeFevre about the
Union, but maintained it was "Not prior to his quitting";
that it was about December 5, and LeFevre's last day of
work was November 26; and that LeFevre responded only
that he knew nothing about the union activity
G Carper's Discharge of Seifer
Seifer was terminated on December 12 He testified that,
late that morning , Smith came to him and said , "Doug, I
don't know how to tell you this , but they are going to come
out this afternoon and let you go"; that this unexpected
occurrence startled him, and he asked why, and that Smith
said , `Well, you know why, it is because of the Union, or he
said , `It is because of what has been going on around here,'
I am not sure whether he mentioned the word ` Union,' but
that is exactly the way I took it, because I knew he was
aware of the Union activities ." Seifer testified further that
Smith said that , in a telephone conversation about this with
Carper , Smith "told Mr. Carper that he didn't want me
fired because of my capabilities and he suggested that he
put me in the management position ," but that Carper's
response was "that he didn ' t know completely what was
going on around about the Union and that he didn't need
someone in the Company that was going to stab him in the
back "
Seifer testified that Carper came to the store just before
he was to leave at 5 o'clock , called him back in the stock-
room , "and said, `Mr Seifer, I am going to have to let you
go because of your excessive tardiness ,' and at that point, I
told him I didn't believe there was any excessive tardiness,
and I started to explain to him about the time clock run-
ning normally up to 15 minutes fast before we turned it
back It didn't seem to make any difference to him at that
time " Seifer testified further that " I was upset and I told
Mr. Carper that he knew he wasn't firing me because of my
tardiness , but it was because of the Union", that Carper
did not want to discuss this , and that he packed his tools
and was getting ready to leave when Carper "handed me
this piece of paper with all these times on it , that I had
LeFevre was not cross-examined by the Respondent
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been late-and, I showed it to him, on there it was only 4
times that it was on there that it was 15 minutes and one of
those times was 16 minutes, so I probably was late 3 times,
and I called in when I was late, to advise Mr. Smith that I
would be late." Seifer also testified that, as he was afraid
Carper was not taking his word about the clock, he asked
Smith at this time to confirm it; that Smith told Carper the
clock had always run fast and had to be set back from time
to time, but Carper "didn't seem to care"; and that, as
Carper seemed not to want to discuss the matter further, "I
wished him a Merry Christmas and went on home." He
also testified that Carper did not bring up the subject of
any other employees being late. Seifer maintained that he
was late only three times in 6 or 8 weeks because of car
trouble or oversleeping, and that Smith "never made an
issue . . . of me being late."
The "piece of paper" that Carper showed Seifer, which
was placed in evidence by the General Counsel, is a scrap
torn from some document with printing and handwriting
on one side, and on the other a handwritten list of dates
and times, with red check marks next to 4 items indicating:
October 23-8:48, October 25-8:24, November 4-9:04,
and November 29-8:18. Seifer testified that Carper told
him this contained his "time clock readings for a certain
amount of time"; that Carper did not state who made the
list; that, when he received it, it contained a notation on
the printed side "46 WORKING DAYS SINCE LETTER LATE MORE
THAN 5 MIN 19 TIMES"; and that he added the red checks
marking the 4 times that were over 15 minutes past 8,
which he considered showed "that I was really late."
Smith testified regarding Seifer's discharge as follows.
Q. . . . Did you find Mr. Seifer a satisfactory em-
ployee?
A. Yes sir.
Q. Did you remonstrate, or discuss with Mr. Car-
per, regarding the termination of Mr. Seifer?
A. Yes sir. . . At that time, I did not want Mr.
Seder terminated, I asked Mr. Carper if there was
some way that I could salvage the man, because he did
a good job for me at the time
Q And, what was Mr. Carper's reply to you?
A. No. . . . he went on about this wasn't followed,
so he said he was going to terminate Mr. Seifer. He
didn't say terminate him at that time, he discussed it
with me, and I still said to him that I would like to
keep Mr. Seifer. And, at that time I left the office
. It was not discussed again until the time that
Mr. Seifer was terminated.
Smith testified further that Carper came to the store just
before it closed at 5:30 and terminated Seifer; that "The
only thing he said to me, sir, was that there wasn't anyone
following these letters . . and that he was going to get it
handled one way or the other "
Smith denied in his prehearing affidavit that he told Seif-
er that Carper was coming to the store, but at the hearing
admitted he did tell this to Seifer He admitted he could
not "say for sure" what he told Seifer as to the purpose of
Carper's visit; denied that he said Seifer was to be termi-
nated; and explained he did not know why he told Seifer
about Carper's visit, but that "I didn't want to Disrupt the
organization I had going at the time, even though I tried to
salvage Mr. Seifer , Mr. Carper had different ideas and
there was nothing I could do about it." Smith also testified,
on cross-examination, that Carper said on the telephone he
was coming to see Seifer; that, when he asked what the
purpose was, Carper said it was to discharge Seifer ; that he
did not ask for the reasons and Carper did not state them
that day, that he could recall, but he "wouldn't say for
sure"; and that Carper had indicated it was "about tardi-
ness beforehand, that is the reason I was trying to keep Mr.
Seffer . . . I wanted him to stay on"; and, finally, that
Carper did state on the telephone on the day of the dis-
charge that he was going to discharge Seifer "because of
the time cards," that that was "the reason" Carper gave
Smith. Smith admitted that Clapp was late at times; that
Morris may also have been late at times but, as the me-
chanic, "worked pretty much his own schedule"; that, as
Carper made employee tardiness an issue in his letter and
in conversations, he or Carper should have tried to get the
timeclock repaired; and that he never heard of any em-
ployee other than Seifer being discharged because of tardi-
ness.
Carper testified that he checked the timecards "from
January 1, 1975, through December 13, 1975, the final
check of Mr Seifer", that "prior to the October 17 letter,
Mr. Seifer was 6 minutes or more late, 27 days. From Sep-
tember 1st, to the letter, 27 days late"; that Seifer 's lateness
ranged from 7 minutes to "20 minutes or more four times
and A couple of 19's"; and that from October 17 to
December 13, the timecards showed Seifer arrived late 19
times ranging from 8:05 to 9.04.' Carper made similar slips
showing the tardiness of Clapp and Morris, but did not
show them to Smith Carper testified that he did not know
about the clock being inaccurate, and admitted the inaccu-
racy would be reflected in the times shown on the cards;
that Smith did not mention the clock being fast when he
spoke to Smith about tardiness as shown on employee
timecards; that Smith, at the time of the discharge, recom-
mended that Seifer not be discharged, mentioned the clock
being fast for the first time, and said Smith himself was late
about twice a month; that he did not reconsider his dis-
charge decision on the basis of Smith's recommendation or
the report about the clock inaccuracy; that he knew some
of the lateness incidents were excused by Smith, but did
not inquire about how many; and that there was no way of
knowing the extent to which the tardiness on the timecards
was due to the inaccuracy of the clock, but he took this
into account in considering the incidents of tardiness of
more than 5 minutes. Carper also testified that Morris, the
mechanic, "operates more or less on his own," and denied,
on cross-examination, that Morris and certain other em-
ployees were often late 8 He testified that he could not re-
call that LeFevre, who quit his job, was sometimes late.9
Carper testified that he discharged Seifer "Because of
continued tardiness." He was then asked by counsel for the
' Carper stated in his affidavit that "Clapp had 19 days late , more than 5
minutes, during the same period "
s Carper stated in his preheating affidavit that Morris "comes in at 9 00
a in , although the letter says 8 45 "
9 LeFevre testified that he was at times late for work while he was em-
ployed by the Respondent
EUBANK TIRE SALES 1109
Respondent if there was "any other reason that you fired
him? Any accumulative reason? Any other motivating fac-
tor besides tardiness?" Carper answered, "Well, I would
say yes, there were some things that accumulated, that
would have possibly been the reason, but the direct reason
for the firing that day was tardiness." Asked what were
"those other things that accumulated," Carper answered,
"Oh, I think I would dust term it an arrogant disregard for
management 's rules." 10 He denied that the discharge was
caused by Seifer 's union activity, or that he had any knowl-
edge thereof on the date of discharge. As noted above,
Carper admitted he had talked about the Union with Smith
and other store managers, but denied that they "talked
about any specific individuals and their activities," and
maintained that his discussions of the Union were prompt-
ed by receipt of the petition in the mail, which came as a
"shock" as it was "totally unexpected by me" and others in
management.
Carper admitted other employees had records for fre-
quent tardiness. He asserted that he discharged only Seiler
because Seifer was scheduled to arrive at 7.55 a.m.,11 for
the store's opening at 8, in order to clean the store and to
furnish the security of more than one individual in the
store , and his tardiness "placed more of a burden on the
operation of the store than the tardiness of the other two
I certainly wouldn't have hesitated to fire . . . all three
of them if I had had people to replace them, but I felt that,
in firing Mr. Seifer , and getting the arrogant attitude that I
mentioned, out of the store, that I could solve the other two
problems. And, I think it has proven to be the case.. .
We haven't had the problems that we experienced from
September through the time of Mr. Seifer 's termination,
since his termination ." He admitted he would have dis-
charged Clapp if he had a replacement, that he had repri-
manded Clapp in about October for coming late on an
occasion when he was present at the store, and that this
reprimand to Clapp was a reprimand to everyone at the
store about tardiness ; that Clapp was placed on the 8 a.m.
shift after Seifer's discharge, and "performed it"; that it
was "possible" Seifer could have performed it after a repri-
mand such as he gave Clapp, and that he considered Clapp
and Seifer equal as to work performance.
Concluding Findings
Seifer and LeFevre impressed me as candid and straight-
forward witnesses whose testimony was believable and was
in large part unrefuted. Smith and Carper, on the other
hand, were evasive witnesses whose testimony contained
many inconsistencies, self-contradictions, and improbabili-
ties . I therefore credit the testimony of Seifer and LeFevre
where it is in conflict with that of Smith and Carper.
I am convinced and find, on the basis of the credited
testimony and evidence as a whole, that Seifer informed
Smith of his intentions to organize the Union and of a visit
to be made at the store by a union representative, that
Smith also heard the three store employees talking about
the Union, and that Smith discussed the union activity
with Carper prior to Seifer's discharge. It is apparent in all
the circumstances of this case, and I find, that the Respon-
dent had knowledge of Seifer's activities on behalf of the
Union, and of the filing of the union election petition, prior
to Carper's discharge of Seifer assertedly for tardiness.
Moreover, the record shows, and I find, that the Respon-
dent had long tolerated tardiness by the Kettering store
employees, and, as Smith testified, had never discharged
anyone for this reason. Even Clapp, who was shown to
have been frequently late, and who was personally repri-
manded by Carper for being late on an occasion when
Carper was at the Kettering store, was not discharged. I
find no merit in Carper's assertions that warning Clapp
about tardiness was a warning to all the store employees
including Seifer, and that Carper's letter setting forth the
hours of work of the Kettering store employees was like-
wise a warning about tardiness to all the store employees
including Seifer. In all the relevant circumstances, I find
that Seifer was never warned or disciplined regarding tardi-
ness.
I find further that Smith, the supervisor most familiar
with Seifer's attendance and work records, not only urged
Carper not to discharge Seifer, but also argued that Seifer
`did a good job," and protested Seifer's discharge on the
ground among others of the timeclock inaccuracy. Carper,
however, disregarded the recommendations of Smith, the
store manager, that Seifer should not be discharged, disre-
garded the information about the inaccuracy of the time-
clock and its effect on the asserted reason for the dis-
charge, and disregarded the fact that other employees had
similar tardiness records, that Smith had excused Seifer on
some of the occasions of Seder's tardiness, that Seifer was
never warned of discharge or other disciplinary action for
tardiness, and that, as Carper admitted, no other employee
was ever previously discharged for tardiness without warn-
ing.12
I find, therefore, on the evidence in its entirety, that the
discharge of Seifer for tardiness, which the Respondent
maintained was the reason, was pretextual, and that the
Respondent discharged Seifer in fact because of his mem-
bership in and activities on behalf of the Union. Moreover,
it is a well settled Board rule that a discharge motivated in
whole or in substantial part by union or protected concert-
ed activity is unlawful even if there exists adequate cause
for the discharge.13 Accordingly, I conclude and find that
Carper discharged Seifer on December 12, 1975, and there-
after failed and refused to reinstate him, because of Seder's
membership in and activities on behalf of the Union, and
in order to discourage membership in the Union, and that
the Respondent thereby discriminated against employees
10 In his affidavit Carper stated that , when Seller said the discharge was
for something other than tardiness , he replied he knew of no other reason to
discharge Seifer
n Carper stated in his hearing affidavit that °Seifer was due to work at
8.00 a in "
12 See N L R B v Melrose Processing Co, 351 F 2d 693 (C A 8, 1965)
13 N L R B v Barberton Plastics Products, Inc, 354 F 2d 66 (C A 6,
1965), Betts Baking Co v N L R B, 380 F 2d 199, 203 (C A 10, 1967),
Hugh H Wilson Corporation v N L R B, 414 F 2d 1345 (C A 3, 1969),
N L R B v KDI Precision Products, Inc, 436 F 2d 385 (C A 6, 1971), P B
and S Chemical Company, 224 NLRB I (1976)
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in regard to their hire or tenure of employment, in violation
of Section 8(a)(3) and (1) of the Act. 14
I find further that Carper interrogated LeFevre about his
union activities and those of other employees on Novem-
ber 24, before LeFevre gave notice that he was leaving to
take anotherjob, and again on December 5, as Carper ad-
mitted, when LeFevre, who had left the Respondent's em-
ploy, was picking up his final paycheck from the Respon-
dent. This interrogation of LeFevre, after as well as before
he quit his job, had the effect, in view of his long and close
association with the Respondent's employees at the Ketter-
ing and other stores, of coercing these employees as well as
LeFevre.15 I find, therefore, that the Respondent thereby
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act, in
violation of Section 8(a)(1) of the Act.16
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's op-
erations described in section I, above, have a close, inti-
mate, and substantial relationship 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 cer-
tain unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act, I find that it is necessary that the Re-
spondent be ordered to cease and desist from the unfair
labor practices found and from in any other manner in-
fringing upon its employees' Section 7 rights,17 and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
As I have found that the Respondent discharged Doug-
las D. Seifer on December 12, 1975, and thereafter failed
and refused to reinstate him, because of his membership in
and activities on behalf of the Union, and in order to dis-
courage membership in the Union, in violation of Section
8(a)(3) and (1) of the Act, the Respondent will be ordered
to offer Seifer immediate and full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and to make Seifer whole for
any loss of pay he may have suffered as a result of the
discrimination against him, with backpay computed on a
quarterly basis, plus interest at 6 percent per annum, as
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co, 138 NLRB 716
(1962).
14 Silco Vending Co, Inc, 219 NLRB 472 (1975), Arthur Collier d/b/a
Arthur Collier Electric Company, 223 NLRB 1492 (1976), P B and S Chemi-
cal Company, supra
15 Peerless Bread Machinery Corporation, 174 NLRB 351, 353 (1969)
16 P B and S Chemical Company, supra, Florida Steel Corporation, 224
NLRB 45 (1976)
17 N L R B v Express Publishing Company, 312 U S 416, 437 (1940),
NLRB v Entwistle Mfg Co, 120 F 2d 532, 536 (C A 4, 1941)
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1 The Respondent, Eubank Tire Sales, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local #178, United Rubber, Cork, Linoleum and
Plastic Workers of America, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. By discharging Seifer on December 12, 1975, and
thereafter failing and refusing to reinstate him, because of
his membership in and activities on behalf of the Union,
and in order to discourage membership in the Union, the
Respondent discriminated against employees in regard to
their hire or tenure of employment, and has thereby en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1) of the Act
4 By coercively interrogating an employee about his
union activities and those of other employees, the Respon-
dent has interfered with, restrained, and coerced employees
in the exercise of the rights guaranteed in Section 7 of the
Act, in violation of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 18
The Respondent, Eubank Tire Sales, Inc., Dayton, Ohio,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from-
(a) Discharging, failing and refusing to reinstate, or
otherwise discriminating against employees in regard to
their hire or tenure of employment, because of their mem-
bership in or activities on behalf of Local # 178, United
Rubber, Cork, Linoleum and Plastic Workers of America,
AFL-CIO, or any other labor organization.
(b) Coercively interrogating employees about their
union activities or those of other employees, or in any
other manner interfering with, restraining, or coercing em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to Seder immediate and full reinstatement to
his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or other rights and privileges.
(b) Make Seder whole for any loss of pay he may have
suffered as a result of the Respondent's discrimination
" In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
EUBANK TIRE SALES
against him, in the manner set forth in the section of this
Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amounts of backpay due under the
terms of this recommended Order
(d) Post at its premises in Dayton, Ohio, copies of the
attached notice marked "Appendix." 19 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 9, after being duly signed by the Respondent's repre-
sentative, shall be posted by the Respondent immediately
upon receipt thereof, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
191n the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, fail and refuse to reinstate,
or otherwise discriminate against any employees in re-
gard to their hire or tenure of employment, in order to
discourage membership in or activities on behalf of
Local # 178, United Rubber, Cork, Linoleum and
Plastic Workers of America, AFL-CIO, or any other
labor organization.
WE WILL NOT coercively interrogate employees about
their union activities or those of other employees, or in
any other manner interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in
Section 7 of the National Labor Relations Act.
WE WILL offer Seifer immediate and full reinstate-
ment to his former job or, if that job no longer exists,
to a substantially equivalent position, without preju-
dice to his seniority or other rights and privileges, and
WE WILL make him whole for any loss of pay he may
have suffered as a result of the discrimination against
him.
EUBANK TIRE SALES, INC.