General Motors Corp.

National Labor Relations Board - Board Decisions

Sep 20, 1954

109 N.L.R.B. 1429 (N.L.R.B. 1954)

GENERAL MOTORS CORPORATION 142
GENERAL MOTORS CORPORATION, CADILLAC MOTOR CAR DIVISION and
LOCAL No . 807, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL . Case No.
2-CA-2960. September 20,1954
Decision and Order
On February 23, 1954, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action as set forth in the Intermediate
Report attached hereto. Thereafter, the Respondent and the General
Counsel filed exceptions to the Intermediate Report and supporting
briefs.'
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed 2
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions and modi-
3fications:
1. The Respondent contends that this case is all abuse of the processes
and offices of the Board. It asserts that "conjured up" charges were
1 The Respondent's request for oral argument is denied because the record and the,
exceptions and briefs , in our opinion , adequately present the issues and the positions of
the parties.
z The Respondent asserts in its brief that it was denied "due process" by the Trial
Examiner 's exclusion of proferred evidence of alleged bias against the Respondent on the
part of a Board 's field examiner . We do not agree . We are deciding this case on the basis
of the evidence pertaining to the unfair labor practices alleged in the complaint and not
upon the basis of what transpired in the course of the Board 's investigation made prior to
the issuance of the complaint herein The Respondent was afforded ample opportunity to.
prepare its defense to the complaint on the merits , and to present it at the hearing. Ac-
cordingly , we rule that the proferred evidence was not material to the issues of this case
and that the Respondent was not prejudiced by its rejection.
3 We note and correct the following factual inaccuracies in, and omissions from, the
Inteimediate Report which do not affect our findings or conclusions in this case : (1) The
Intermediate Report erroneously recites that DiCaprio attributed to M3annay a statement
to the effect that men previously interested in the Union had been laid off ; (2) the Inter-
mediate Report recites that the Respondent contended at the hearing that it was denied,
due process because it could not ascertain the results of the investigation conducted before
the issuance of the complaint , whereas the record shows that the Respondent , although
objecting strenuously in this respect, did not assert at the hearing that it was denied due
process , ( 3) the Intermediate Report recites that the Respondent was accustomed to,
employ the services of an automobile rental agency from time to time to furnish the
services of chauffeurs , whereas in fact the Respondent employed the services of automobile
rental agencies in order to rent automobiles , and was thereby required to "take" the services
of the drivems of such automobiles , and (4) the Respondent 's labor relations history
includes more than 500 representation cases processed before the Board during the past
10 years, shows that it was a party respondent in only 6 or 7 unfair labor practice cases
during that period of time, and shows further that since 1941 the New York branch of
the Cadillac Motor Car Division has bargained collectively with a labor organization repre-
senting 'ehiployees other than drivers „and has been operated without strikes and without
being named in unfair labor practice charges.
109 NLRB No. 205.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed by the Union as a stratagem "to cover" the Union's voluntary
withdrawal of a representation petition and an abandonment of its
organizational attempt among the Respondent's drivers; it further
asserts that the charges are the results of the Union's "hopes" that
the Board will ultimately issue an order directing the Respondent to
bargain with the Union even though the unit the Union seeks to
represent is inappropriate. In support of its assertions the Respond-
ent relies in part upon the fact that the Union's attorneys, who filed
the charges on behalf of the Union, as well as attorneys in their office,
failed to respond to subpenas to testify and to produce affidavits and
statements in their possession pertaining to this case; and it further
relies upon the failure of Zappa. and DiCaprio, 2 of the 3 employees
found herein to have been discriminatorily discharged, to respond
to subpenas to testify and to produce copies of statements made by
them to a Board field examiner.
The.Respondent's contention raises a serious matter, which we have
considered carefully. We have concluded, however, that the Respond-
'ent's assertions have not been shown to be founded in fact. In the
first place, as indicated below, we are satisfied, and find, that the Re-
spondent in fact committed unfair labor practices as charged and as
alleged in the complaint, and thereby violated the Act. Secondly,
and quite significantly, although the Union in fact filed a refusal to
bargain charge against the Respondent, that charge was withdrawn
by the Union and no complaint against the Respondent has been
predicated thereon. Accordingly, the issuance of a bargaining order
cannot, because of the Union's voluntary action, be a result of this
case. In the third place, it is true that neither Zappa, DiCaprio, nor
the Union's attorneys responded to subpenas when called by the Re-
spondent. Both Zappa and DiCaprio appeared as witnesses for the
General Counsel and were cross-examined by the Respondent. The
record shows that when Zappa was present at the hearing, he in-
formed the Respondent's attorney that he had been unable to find
the document be had been ordered to produce, and that he would so
testify in response to the subpena. The Respondent's counsel there-
upon indicated that he "would accept that representation," and that
Zappa's further appearance to testify was unnecessary. Zappa,
therefore, appears to have been excused by the Respondent from re-
sponding to the subpena. Moreover, although we do not condone
the action of the Union's attorneys or of DiCaprio in failing to re-
spond to the subpenas or to take appropriate action to revoke them,
we cannot infer therefrom, in view of the other factors here present,
that the processes of the Board are being abused in the manner and
for the reasons asserted by the Respondent. In this connection, we
.also note the failure of the Respondent to request action to enforce
GENERAL MOTORS CORPORATION 1431
any of the subpenas in question. Accordingly, we find that the Re-
spondent's contention lacks merit.
2. The Intermediate Report recites that employees Zappa and
Monigan testified that Supervisor Miannay had in effect threatened
them and employee Pongituro with discharge because of their union
activities. Both Zappa and Monigan testified that the incident oc-
curred on January 16, 1953, immediately after Miannay had ques-
tioned them about joining the Union. According to Zappa, Miannay
said : "Other fellows tried and we laid them off. That is just what
is going to happen to you fellows." According to Monigan, Miannay
said : "You know, unions have been tried here before. They never
got any union. In fact, the men don't work here any more."
Miannay, who admitted that he had questioned other employees about
their union activities, denied he had threatened Zappa, Moni-
gan, or Pongituro, or questioned Zappa or Pongituro. The Trial
Examiner did not specifically resolve the issue of fact as to whether
Miannay had made the threats attributed to him by Zappa and Moni-
gan. He did, however, recommend that the Respondent be ordered
to cease and desist from threatening its employees with discharge be-
cause of their union membership and activities. In consistence with
the Trial Examiner's recommendation, and upon our independent
study of the record, we credit' the testimony of Zappa and Monigan,
and find that Miannay in fact coercively questioned employees
Zappa, Monigan, and Pongituro as to their union activities and mem-
bership and threatened them with discharge for engaging in such ac-
tivities. We find further that by such conduct the Respondent vio-
lated Section 8 (a) (1) of the Act.
3. We agree with the Trial Examiner's conclusion that the Respond-
ent discriminatorily discharged "temporary" drivers Zappa, Moni-
gan, and DiCaprio. Although there is evidence indicating a curtail-
ment in the Respondent's need for drivers,5 we, like the Trial Exam.
S In crediting the testimony of Zappa and Monigan , as against the testimony of Miannay,
we not only adopt the Trial Examiner 's implicit credibility findings, but we also rely par-
ticularly upon the following : ( 1) Miannay 's admitted questioning of employees other than
Zappa and Pongituro , which, because it extended over a period of more than 17 days, and
because of the large number of employees questioned even though the information allegedly
sought was in fact ascertained by Miannay after only a few employees had been interro-
gated, is not consistent , in our opinion , with Miannay 's assertion that he questioned the
employees only to satisfy his own curiosity; (2) the consistency in the testimony of Zappa
and Monigan ; and (3 ) the corroborating testimony of Pongituro that he was present on
January 16 when "Miannay asked us [Zappa and Pongituro ] questions" about the Union.
In resolving this credibility issue, we have not overlooked the fact that Zappa did not
respond to the subpena, issued at the Respondent 's request , to testify and to produce a
copy of a statement he made to the Board 's field examiner . As is set forth in the text,
Zappa was excused by the Respondent from responding to the subpena . For this reason,
we do not believe that any adverse credibility inference should be drawn from Zappa's
failure to respond to the subpena.
5 The Respondent 's records show that during November 1952, "temporary" drivers worked
a total of 179 days ; during December 1952, a total of 161 days ; during February 1952, a
total of 122 days ; and during March and April 1953 , totals of 118 and 134 days, respec-
tively.
1 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
iner, are unable to accept the Respondent's assertion that these em-
ployees were laid off because of a lack of work. The three termina-
tions were effected during or shortly after the close of the New York
Automobile Show in January 1953. Before and during the show, the
Respondent, as was its custom, and in order to satisfy increased needs
arising from the show, added "four or five" employees to its usual
complement of "temporary" drivers; and on or about the date of the
show's ending, January 24, the Respondent, as might be expected,
laid off "four or five" of its "temporary" drivers. Under normal
employment practices, we would not expect that Zappa, Monigan, or
DiCaprio, who had previously been regularly and steadily employed,
and whose work was admittedly satisfactory, would have been laid
off before the termination of all the drivers who had been more re-
cently hired because of the show. Nevertheless, the Respondent's rec-
ords show that after the layoff of Monigan, on January 21, it con-
tinued the employment of "temporary" drivers Smith and Dumicich
who were hired, respectively, on January 10 and 12; and that, although
Zappa and Monigan were laid off on February 5, Smith worked stead-
ily through January, from February 9 through February 12, and al-
most uninterruptedly from February 19 until his employment ceased
on March 9. Moreover, almost immediately after Smith's employ-
ment ended, "temporary" driver.Micillo began to work for the Re-
spondent on March 13 and worked steadily thereafter through the
month of April 1952. In addition employee Finneran also began to
work as a "temporary" driver on April 2 and worked a total of 14
days during the month of April. The Respondent made no effort to
contact Zappa, Monigan, and DiCaprio when Micillo and Finneran
were hired.,' The anomalous retention of Dumicich and Smith, and
the hiring of the two new employees, Micillo and Finneran, has con-
9 The Respondent contends that it was excused from offering reemployment to Monigan
because shortly after his discharge Monigan returned to pick up his belongings and told
Miannay "he had a position to go to." It further contends that it was excused from
offering reemployment to DiCaprio because, according to Miannay , about February 18 or 19,
DiCaprio had refused an offer of "a day's work" on the ground that "he had a position to
go to the following day," and was only interested in something "permanent"; and it also
contends that it was excused from offering Zappa employment because, according to
Miannay, about February 24 or 25, Zappa asserted he was not interested in work unless it
was "steady ." DiCaprio in effect contradicted Miannay's testimony that he was interested
only in "permanent" work. However, even if Miannay is credited in the latter respect,
we reject the Respondent 's contentions . The Respondent is not excused from its obliga-
tion to offer reemployment to discriminatorily discharged employees because it may believe
they are employed elsewhere Nor, in view of the regular and steady nature of the
employment of Monigan , DiCaprio, and Zappa (Monigan worked 24 days in November
1952, 24 days in December 1952, and 17 days in January 1953 before his discharge on
January 21 ; DiCaprio worked 27 days in November 1952, 24 days in December 1952, 25
days in January 1953, and 4 days in February 1953 before his discharge on February 5;
Zappa worked 26 days in November 1952, 25 days in December 1952, 26 days in January
1953, and 4 days in February 1953 before his discharge on February 5) has the Respondent
satisfied its obligation by offering these employees an occasional day's work.
GENERAL MOTORS CORPORATION 1433
winced us that Zappa, Monigan, and DiCaprio were not discharged be-
cause of a work shortage.
We are satisfied, too, that the Respondent discharged these employ-
ees in order to discourage the Union's organizational efforts. Like
the Trial Examiner, we rely in part on what is referred to in the Inter-
mediate Report as the "timing" of the discharges as evidence of the
Respondent's discriminatory intent. In addition, in reaching the
conclusion that the discharges were discriminatorily motivated, we
have attached considerable weight to the presence of the following
factors : (1) The fact that Monigan and Zappa initiated the organi-
zational drive on behalf of the Union and themselves signed up all
the other "temporary" drivers; (2) the fact that the Respondent ad-
mittedly knew of Zappa's activities on behalf of the Union, and also
knew that Monigan and DiCaprio were union supporters; (3) the fact
that DiCaprio, in addition to his duties as a driver, performed clerical
duties for the Respondent, and was therefore a particularly valuable
employee; and (4) the fact that the Respondent, as found above, had
previously questioned all the "temporary" drivers regarding their af-
filiation with the Union, and had threatened Zappa, Monigan, and
another employee with discharge for supporting the Union.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
.of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, General Motors
Corporation, Cadillac Motor Car Division, New York City, New York,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local No. 807, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL, or in any other labor organization of its employees,
by discharging or refusing to reinstate any of its employees, or by dis-
criminating in any other manner in regard to the hire and tenure of
employment of its employees or any term or condition thereof.
(b) Interrogating employees concerning their membership in, or
activities on behalf of, Local No. 807, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers,of America, AFL,
or any other labor organization, in a manner constituting interfer-
ence, restraint, or coercion in violation of Section 8 (a) (1).
(o) Threatening its employees with discharge because of their
union membership or union activities.
(d) In any other manner, interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
join or assist Local No. 807, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL, or any
other labor organization, to bargain collectively through represent-
atives of their own choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all of such activities except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer reemployment to Thomas D. Monigan, Hugo Zappa, and
Joseph DiCaprio in the jobs formerly held by them, or in substan-
tially equivalent jobs, without prejudice to their seniority or other
rights and privileges.
(b) Make whole Thomas D. Monigan, Hugo Zappa, and Joseph
DiCaprio, in the manner set forth in that portion of the Intermediate
Report entitled "The Remedy," for any loss of pay they may have
suffered because of the discrimination against them.
(c) Preserve, and upon request, make available to the Board and
its agents, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records, and all re-
ports and other records necessary to determine the amount of back
pay due.
(d) Post in conspicuous places at its offices at 224 West 57 Street,
New York, New York, and in the room or place at that address where
persons employed as drivers customarily report for duty, and other
places where notices to employees customarily are posted, copies of
the notice attached hereto marked "Appendix."' Copies of this
notice, to be furnished by the Regional Director for the Second Re-
gion, shall, after being duly signed by a representative of the Re-
spondent, be posted by it immediately upon receipt thereof, and main-
tained by it for a period of at least sixty (60) consecutive days there-
after . Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this Order what steps the
Respondent has taken to comply herewith.
MEMBER MuRDOCK took no part in the consideration of the above
Decision and Order.
7 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "`Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
GENERAL MOTORS CORPORATION 1435
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in Local No. 807, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, AFL, or any other labor organization,
by means of discriminatory discharge or discriminating in any
manner in regard to hire, or tenure of employment of our em-
ployees, or any term or condition of employment.
WE WILL NOT interrogate our employees concerning their mem-
bership in, or activities on behalf of, Local No. 807, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Help-
ers of America, AFL, or any other labor organization, in a manner
constituting interference, restraint, or coercion in violation of
Section 8 (a) (1).
WE WILL NOT threaten our employees with discharge because
of their union membership or activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist Local No. 807,
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men, and Helpers of America, AFL, or any other labor organi-
zation, to bargain collectively through representatives of their
choosing, and to engage in other concerted activities for the pur-
pose 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
membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
WE WILL offer Thomas D. Monigan, Hugo Zappa, and Joseph
DiCaprio immediate and full reinstatement to their former posi-
tions and make each of them whole for any loss of pay suffered.
GENERAL MOTORS CORPORATION,
CADILLAC MOTOR CAR DIVISION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from date hereof, and
must not be altered, defaced or covered by any other material.
J436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
The General Counsel of the National Labor Relations Board by the acting Re-
gional Director for the Second Region issued a complaint against General Motors
Corporation, Cadillac Motor Car Division, herein sometimes called the Respond-
ent, on July 24, 1953, alleging violations of Section 8 (a) (1) and ( 3) of the
National Labor Relations Act, as amended (61 Stat. 136), herein referred'to as
the Act. The issuance of the complaint followed the filing of the charge on Feb-
ruary 11, 1953, a first amended charge on May 6, 1953, and a second amended
charge on July 9, 1953, by Local No. 807, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL, herein sometimes called
the Union. The charge and the amended charges were filed by counsel represent-
ing the Union. The facts briefly set forth therein formed the basis for the allega-
tions in the complaint to the effect that the Respondent was and now is, by reason
of certain activities set forth below, in contravention of the provisions of the Act
mentioned above.
The complaint in substance asserts that the Respondent has been and now is
engaged in unfair labor practices proscribed by the Act, in that it discharged and
has refused and now refuses to reinstate three named employees because of their
activities for and on behalf of the Union ; and that the Respondent interrogated
its employees concerning their union affiliation and concerted activities , threat-
ened its employees with discharge or other reprisals if they joined the Union or
engaged in concerted activities, and offered and promised economic benefits to its
employees to induce them to refrain from becoming or remaining members of the
Union or to refrain from engaging in activities on behalf of said Union or to
refrain from engaging in other concerted activities. By answer to the complaint,
verified September 14, 1953, the Respondent effectively denies the substantive alle-
gations of the complaint regarding its asserted violations of the Act.
On the issues raised by the complaint and answer and pursuant to notice, this
matter came on for hearing before the undersigned Trial Examiner at New York,
New York, on November 2, 1953. Testimony was taken on November.5, 6, 10, 11,
and 17, 1953. At the hearing, the General Counsel of the National Labor Relations
Board and the Respondent were represented by counsel. Full opportunity to be
heard , to examine and cross -examine witnesses and to introduce evidence bearing
on the issues, to argue orally upon the record, and to file briefs, proposed findings
of fact, and proposed conclusions of law were afforded the parties. One of counsel
for the Union, the charging party herein, appeared as a witness for the General
.Counsel, but did not choose to enter a formal appearance.
Upon the entire record of the case, from his observation of the witnesses, and
after careful consideration, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, General Motors Corporation, is and has been at all times material
hereto a corporation duly organized under and existing by virtue of the laws of
the State of Delaware, and at all such times has maintained and maintains its prin-
cipal office at New York, New York, and Detroit, Michigan, and places of business
in various States of the United States, including its Cadillac Motor Car Division,
New York branch, 224 West 57 Street, in the city, county, and State of New York
(herein sometimes called the New York branch), and is now and has been con-
tinuously engaged at said New York branch in the purchase, sale, and distribution of
Cadillac automobiles, used automobiles, automotive parts, and related products.
General Motors Corporation functions through certain unincorporated divisions,
one of such divisions being known as Cadillac Motor Car Division, which maintains
plants and offices throughout the United States, including the New York branch.
In•excess of 50 percent in value of products and parts sold and distributed through
the New York branch of the Cadillac Motor Car Division come from sources out-
side the State of New York, and in excess of 50. percent in value of the products
and parts sold or distributed through the New York branch of the Cadillac Motor
Car Division eventually reach points outside the State of New York. In terms of
annual dollar volume, the amount involved is in excess of one-half million dollars
annually
The Respondent is engaged in commerce within the meaning of the Act.
GENERAL MOTORS CORPORATION
II. THE LABOR ORGANIZATION INVOLVED
1437
Local No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL, is a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
By letter dated January 19, 1953,1 directed to the Respondent at its New York
branch, the Union, by its secretary-treasurer, advised that "the drivers employed
by your Company are now members of this Local Union and have designated this
Union as their bargaining agent. ." and requested a meeting to discuss a proposed
contract enclosed with that letter. The Respondent replied by letter dated January
21, and informed the secretary-treasurer of the Union that "we cannot recognize
your Union as the collective bargaining agent for these employees, until such time
as your Union has been designated as the collective bargaining agent for the em-
ployees, following an election conducted by the National Labor Relations Board."
The Union filed a petition on January 21, for certification as representative of "all
drivers employed by the employer at 224 W. 57 St., New York City, excluding all
other employees and supervisors, watchmen and guards as defined in the Act."
After a conference conducted in the office of the Regional Director of the Board in
New York on February 4, during which the Respondent, the union representatives,
and a representative of the Regional Director were present, and during which the
Respondent asserted that three other employees properly should be included within
the proposed bargaining unit, a hearing on the petition of the Union was scheduled
for February 17; subsequently, on February 20, the Regional Director ordered that
the order scheduling the hearing be withdrawn and further ordered that "the Peti-
tioner's request for withdrawal of its Petition be, and the same hereby is, approved";
and the Respondent was so advised by the Regional Director by letter dated March 4.
Case No. 2-RC-5512. By letter dated February 11, the Regional Director notified
the Respondent of the filing of an unfair labor practice charge against it by the
Union. (This charge, together with the first amended charge and second amended
charge mentioned above, resulted in the issuance of the complaint herein on
July 24.) 2
As of October -1952, General Motors Corporation employed approximately 365,000
hourly rated employees, of which approximately 360,000 were covered by collective-
bargaining agreements in some 175 such contracts between the Respondent and some
20 International Unions. One of these contracts between the Cadillac Motor Car
Division and the United Automobile Workers, CIO, covered hourly rated garage
mechanics , greasers , car washers , car shifters, and other miscellaneous personnel em-
ployed by the New York branch. The employees employed by the Respondent at
224 West 57 Street, with which this case is concerned, were not and are not covered
by the UAW agreement, which has been in effect for some 12 years. It has been
the policy of the Respondent not to recognize a labor organization as the collective-
bargaining agent of any of its employees until that organization first is certified by
the National Labor Relations Board as representative after a secret ballot vote taken
under the procedures established under the Act by the Board.
After the filing of the original charge on February 11, the Respondent, by corre-
spondence and through conferences at the offices of the Regional Director, made a
determined effort to discover what constituted the basis of the charge other than the
facts set forth therein. The Respondent contended that it was unable to determine
from the charge as stated just what the complaint was against it. In attempting to
elicit the desired information as to what the specific charges were against the
Respondent, it, through counsel, met with the field examiner who was assigned by
the Regional Director to investigate the case; and , after the filing of the amended
charges and the issuance of the complaint herein , moved for the taking of deposi-
tions (which motion was denied ) and subsequently filed motions to produce and for
a bill of particulars. The motion to produce was denied and the motion for a bill
of particulars was granted in part. At the hearing, a motion by counsel for the
1
Unless otherwise specifically noted, all dates hereinafter mentioned are for the year
1953.
2 Thereafter , on February 27, the Union filed a charge that the Respondent was in viola-
tion of Section 8 (a) ('5) of the Act (refusal to bargain ) ; on July 31 , the Regional Director
advised the Respondent that the charge had been allowed to be withdrawn "without
prejudice." Case No. 2-CA-2993.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent that the complaint be dismissed because the charge or a copy thereof had
not been served upon it by the charging party, was denied.3
The Act gives the General Counsel the sole and independent responsibility for
investigating charges of unfair labor practices, issuing complaints in cases where his
investigators find evidence of violations of the Act, and prosecuting such cases before
the Board. After the issuance of the complaint herein, the Respondent had avail-
able to it the methods which it did adopt for discovery and amplification of the
complaint. The Respondent was not denied due process (as it contends) by reason
of the refusal of the Regional Director or the field investigator to disclose the results
of their investigation prior to the issuance of the complaint, and the Trial Examiner
so finds. International Broadcasting Corporation (KWKH), 102 NLRB 1434, and
cases cited footnote 4, p. 1436.
B. Preliminary findings
At its New York branch, at the West 57th Street location, the Respondent regu-
larly employed and now employs three drivers, called payroll or "company" men,
who are paid semimonthly on a monthly salary rate and, as regular employees, are
entitled to certain benefits such as group insurance, hospitalization, vacation pay,
and other benefits enjoyed by regular salaried employees.4 The Respondent also
employed some 14 extra (temporary) drivers, they being paid an hourly rate of
pay for the actual number of hours worked each day. The days and hours worked
by the extra drivers vary greatly during each month. In November 1952, the
Respondent employed 10 extra drivers; in December 1952, it employed 8 extra
drivers; in February 1953, it employed 9 extra drivers; in March 1953, it employed
9 extra drivers; and in April 1953, it employed 7 extra drivers. In February, 1 of
the 9 worked only 2 days and 3 of the 9 worked 1 day. In March, 1 of the 9
worked 2 days and another 1 worked 3 days. During these months, others of
the extra drivers may have worked 5 or 6 days, more or less, while others worked
almost every day, 6 days a week, during the month.
Among the group of extra drivers were Joseph DiCaprio, first employed August
16, 1950, Hugo Zappa, first employed August 26, 1952, and Thomas D. Monigan,
first employed August 14, 1952. Monigan was laid off or discharged on January
21 and DiCaprio and Zappa were laid off or discharged on February 5. Thereafter
Zappa was recalled, and according to employment records, worked on February
20, 24, and 25. He has not been asked to work since. At the time of his layoff
or discharge, each of these three men had an employment record showing longer
length of service than other extra drivers. During the months of November and
December 1952 and January 1953, DiCaprio, Zappa, and Monigan were among
the extra drivers who performed services covering almost every working day dur-
ing those months.
The extra drivers, whose pay is computed on a daily basis, are not eligible for
nor do they receive the benefits mentioned above for which the payroll men (the
salaried drivers) are eligible: that is, they may not participate in the retirement
program which salaried employees may become eligible for; they do not receive
vacation pay, hospitalization, group insurance, or any other of the benefits to which
regular payroll employees of the Company may be eligible for or participate in.
Seniority, or length, of service, has not been observed with respect to the employ-
ment, layoff, or recall of extra drivers; there is not, and never has been an established
seniority list or any recognition of a system which would give these employees sen-
iority rights with respect to their employment.
Charles T. Miannay, supervisor of the drivers, has held that position since Jan-
uary 1931. As such supervisor he has held the responsibility for hiring all hourly
rated extra or temporary drivers. In practice, he testified that when he needed an
extra driver he would "call up wherever I am able to get an extra driver. When he
a Section 102 14 of the Board's rules and regulations provides-"Upon the filing of a
charge, the charging parties shall be responsible for the timely and proper service of a
copy thereof upon the person against whom such charge is made. The Regional Director
will, as a matter of course, cause a copy of such charge to be served upon the person against
whom the charge is made, but he shall not be deemed to assume responsibility for such
service." Service of the charge and the first and second amended charges was effected
herein by the Regional Director Therefore, the charging party was justified in relying
upon service of the charge and the amended charges by the Regional Director, and his
responsibility for service of copies thereof was discharged after the timely service of the
charge and amended charges by the Regional Director.
A These men have been identified as P. J. Ebbitt, E. Lowry, and P. Rala.
GENERAL MOTORS CORPORATION 1439'
comes in, I tell him that he is going to be hired for a day, two days, three days,
at whatever rate it is at the time, on an hourly basis." Monigan, on the day he was
hired, had been referred to Miannay by Carey Cadillac, an auto rental and limou-
sine service, and Miannay put him on for a period of 2 weeks-at the end of that
time, Miannay kept him on as an extra man. Zappa and DiCaprio each were hired
by Miannay; and each worked steadily after his first employment.
The work performed by the payroll men and the extra or temporary drivers is
the same. They are employed to shift automobiles off and on the showroom floor,
to deliver them between the several branch establishments, out or into the 57th
Street location, to drive officials or visiting personages by limousine upon assign-
ment by Miannay, and to perform other duties in connection with the shifting of
cars in and around the 57th Street location.
The record of the time worked by the extra drivers was kept by Miannay, the
daily slip showing the work performed by assignment of each individual driver
during any 1 day, and the total number of hours worked by him on that day. The
extra drivers customarily were paid at the end of the week, each being required
to sign a separate slip for each day's pay during that week. As noted above, the
three "payroll" men were paid semimonthly.
There is no pattern to be drawn for regular hours of work for the extra drivers
from the summary of Respondent's payroll records covering them, or attendance
records covering them, as submitted at the hearing. The records disclose only that
some extra drivers worked many more days and many more hours than others,
with no attention shown to length of service in the assignment of daily work. It
does clearly appear from these records, however, that Momgan, Zappa, and DiCaprio
were steadily employed, comparatively, during the times they performed services
for the Respondent at the 57th Street location.
On January 9, Zappa in the company of Monigan telephoned the secretary-
treasurer of the Union in connection with the possibility of organizing the drivers
of the Respondent at the 57th Street location of the New York branch of the Re-
spondent. They were referred to one Boylan, a union representative, who gave
them application blanks for membership in Local 807. Thereafter on January
11 and 12 they solicited other employees-the drivers-and secured the signatures
of all of the extra drivers then employed to applications for membership in the
Union. The three permanent employees, the so-called payroll men, did not apply
for membership in the Union. As related above, a representative of the Union by
letter dated January 19 to the Respondent requested recognition as representative
of the drivers, and the Respondent, in its reply letter dated January 21, refused
such immediate recognition. It was on the latter date that the Union filed a peti-
tion for certification as representative.
C. The discharge of Hugo Zap pa
Zappa performed services for the Respondent at the West 57th Street location
as an extra driver from the time he was hired in August 1952 until his layoff or
discharge on February 5, 1953. After February 5, the payroll records furnished
at the hearing show he worked February 20, 24, and 25; the records also show
that he had worked almost every working day during November and December
1952 and January 1953.
On or about January 9, he telephoned the secretary-treasurer of Local 807, Tom
Hickey, and requested Hickey for some applications for membership in the Union.
Hickey told him to communicate with Boylan, which Zappa did, and Boylan gave
him 14 applications for membership in Local 807. Zappa had been a member of Local
807 since the year 1950 and still is a member of that Union. At the time Zappa talked
to Hickey and at the time he secured the applications from Boylan, Monigan was with
him. On the following Monday, Zappa and Monigan solicited signatures to applica-
tions for membership in Local 807, and secured signatures from each one of the extra
drivers. After securing the signatures of the extra drivers to the applications, Zappa re-
turned them to Boylan.
According to Zappa, on the following Friday, January 16, Miannay dismissed
all drivers except him, Monigan, and Edward J. Pongituro at a few minutes past
5 o'clock that afternoon and, in the room used as an office by Miannay and a wait-
ing room by the drivers, Miannay asked them "who the ones that started this Union
were"; Zappa said that he did; that Miannay asked "What will this get you by join-
ing the Union?", then Zappa replied, "I guess we are looking to get a better living
condition and want to get the same as the payroll men"; and that Miannay then
remarked "Other fellows tried and we laid them off. That is just what is going
to happen to you fellows." Further, according to Zappa, Monigan told Miannay
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his reasons for wanting to join the Union, but that Pongituro had nothing to say
during this discussion. About 2 weeks later, Zappa testified, Miannay, while giving
him an assignment, said "How do you like the job? It is steady. Why don't you
forget about the Union?" Zappa related that at about 5:15 p. in. on February 5,
Miannay dismissed all the drivers except DiCaprio and himself and that while he
and DiCaprio were standing in front of Miannay's desk, the latter came in and
handed each of them a pay envelope and told them that it was necessary to lay
them off. As a reason, Miannay told them, "It is slow. I have to let you go."
Zappa said that both he and DiCaprio told Miannay that they knew it was not
slow and that he was not laying them off because things were slow but because of
union activities, which Miannay denied. Zappa testified further that about 3
weeks later Miannay gave him 1 day's work and paid him for that day and told
him that if he needed him he would call him again; that the following week he
was called in by Miannay, worked 1 day, and was paid for that day. At that time,
he said he asked Miannay if there was any chance of getting more than 1 day's work a
week and that Miannay told him that he was sorry "that is all he had for him."
D. The discharge of Thomas D. Monigan
After he began work in July or August 1952, Monigan worked steadily until
he was discharged on January 21, 1953. His normal workweek was the same as
the other extra drivers who were most consistently called upon by the Respondent
to perform services-that is, a normal workweek of 5 days and also work on Sat-
urdays. He and Zappa obtained signatures to applications for membership in
Local 807 from all of the extra drivers employed at the West 57th Street location.
He also approached Lowry, one of the permanent drivers, but did not secure his
signature to an application card.
His version of the conversation between Miannay, Zappa, and himself, at which
Pongituro was present, on the late afternoon of January 16, is substantially the
same as that of Zappa. Monigan 's version of that discussion , or conversation,
follows:
Mr. Miannay walked out of the office. He was gone 5 or 8 minutes. He
came back to the office. He stood in front of us and said, "Well, now, what is
this I hear about you fellows signing up with the Union?" We told him yes,
that is right, we signed up with the Union.
Q. You say "we."
A. Hugo Zappa and myself and Eddi Pongituro. He had asked us what was
the idea. I told him that we would like to try to get an understanding to the
rest of the so-called payroll men. We tried to come up to their standing inso-
far as getting the Union in, getting security of our jobs , and living costs, hos-
pitalization , retirement , where we weren't getting that at all.
He answered us that was there anything wrong, wasn 't he treating us right?
We explained that he had been treating us all right . It just was that it wasn't
enough money and no security to our jobs . If we had gotten sick, we had
nothing in the bank to pay it out.
He turned and said, "You know unions have been tried here before." That
I knew myself because I heard it . He said, "They never got any union. In
fact, the men don 't work here any more. Something again , it is the wrong
union." Whether he was referring to the CIO or the Auto Workers on 12th
Avenue or not , I didn 't question him.
I says, "Look , Doc, suppose we have a conference with Mr . Earnest and
talk it out?"
Q. Who is Mr. Earnest?
A. The manager of the Cadillac Car Division, Broadway and 57th Street.
He says, "No, Mr. Earnest won't see anybody." We asked him wouldn't you
ask him? He says, "He won't see none of you."
He says, "That is all, fellows ." So we left . That was it.
Monigan said that Miannay at that time asked whether DiCaprio had signed and
whether the three permanent drivers-Raia, Lowry, and Ebbitt-had signed; that
they told him DiCaprio had signed but the three permanent men had not.
Monigan testified further that he had worked every Saturday since his employ-
ment in August 1952, up until the Saturday following the above-reported conversa-
tion with Miannay ; that his regular Saturday assignment was to drive Mr. Earnest,
identified by him as the manager of the branch , who, Monigan said, was regu-
lary driven by Raia, a payroll man, the other 5 days of the week; that on the
day following, he did not drive Earnest but that upon his reporting to work, ex-
^cept for about 15 minutes spent in delivering an automobile from West 57th Street
GENERAL MOTORS CORPORATION 1441
to the 12th Avenue location of the branch, he spent his time sitting in the drivers'
waiting room at the West 57th Street location. On January 21, at about 4:30 p. in.,
Miannay called him to his desk, requested him to sign a payroll slip and told him
that "It is slow, Tom, I have to let you go." Upon his questioning, Monigan said
Miannay told him there was nothing wrong with his work, and that he knew nothing
about any Union; that Miannay then told him he would call him as soon as work again
became available.
E. The discharge of Joseph DiCaprio
DiCaprio, employed by the Respondent as an extra driver in August 1950, was
continuously employed until the date of his layoff or discharge on February 5, 1953.
He was employed, as the other drivers were, in shifting new or used cars in show-
rooms, delivering cars from place to place, or as a driver for company officials
and others. For a period of about a year before his discharge, he also assisted
Miannay in the performance of clerical work and in the answering of telephones.
At times he related orders given by Miannay to other drivers. Except for these
so-called clerical duties, his work generally was the same as that of any other of the
drivers working at the 57th Street location.
On about January 13, he was solicited for membership in Local 807 by Zappa and
Monigan and signed an application for membership in the Union. He was present
at the time Miannay discharged Monigan, and confirmed in substance the testimony
given by Monigan in connection with his discharge and the conversation between
Monigan and Miannay at that time.
He testified that 2 or 3 days before his discharge, Miannay questioned him con-
cerning his membership in the Union; that he gave Miannay his reasons for joining
the Union, and that Miannay said, in connection with DiCaprio's desire to be put on
the permanent payroll, "we will see how this union business works out. Then I
would talk to Mr. Earnest." In general, he confirmed the testimony given by Zappa
with respect to their discharge by Mianney on the afternoon of February 5. He
said that while Miannay was seated at his desk, he handed Zappa and DiCaprio
their slips indicating which days' pay they were entitled to and asked for their
signatures. His version of subsequent events on that afternoon follows:
A. Four slips. I asked what they were for. He says, "I'm going to have
to let you go." I wanted to know why. I asked, "Why are you letting me go?"
He says, "The work isn't here any more." He says that things are slow.
I said they are not slow. The work is going on as it was before. The work
is still here. It is because of the Union that you are letting us go. He says,
"No Union, nothing about the Union." I refused to sign the slips. At the same
time Zappa chipped in and says, "Is our work satisfactory?" He says, "There
is nothing wrong with your work; it is perfect. Right now, I can't use either.
It is kind of slow like I stated before. When things pick up I will get in touch
with you." He kept harping on signing these slips. I told him we wouldn't sign
the slips until we see the Union . I thought by signing the slips without seeing
the Union-I wanted to see Mr. Earnest, who is the general manager. We left
the slips at the desk in an envelope.
We went up to see Mr. Earnest. We saw Miss Neary, who is Mr. Earnest's
secretary. We told her what we wanted, to see Mr. Earnest. She called in to
Mr. Earnest and asked-probably told him who was out there. He didn't want
to see us.
Q. Is that what she said?
A. Yes. We stopped there and figured we can 't get to talk to him . We said
we better talk to Mr. Boylan of 807. We tried to get in touch with him.
We called at the office and home and Mr. Hickey had been away, the secre-
tary. We tried to get in touch with him. We couldn't talk to nobody. I said
the best thing is to sign our slips and get our pay. Zappa and myself went back
into the office and signed the slips. And we got our envelopes containing our
money.
At that time we had a little more discussion and we talked more about it. We
wanted to know why the other fellows behind me weren 't going.
According to DiCaprio, he was never requested by Miannay to perform services
as a driver , or any other services , after that time. -
F. The activities of Miannay
The illegal activities charged by the General Counsel against the Respondent all
involve the activities of Miannay, the supervisor of the drivers, both regular and
extra, employed at the West 57th Street location . Miannay, who had occupied
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that position since January 1931, hires and fires the drivers and has a comparatively
free hand and full discretion in the running of his department.
The acts of interrogation , threatening of employees , and offering and promising
of economic benefits to employees as alleged in the complaint are all laid to Miannay
by the General Counsel. No other agent or representative of the Respondent is
charged with any of those activities set forth in the complaint which are alleged to
be in contravention of the Act.
Miannay was instructed by his superiors, around the middle of January, to take
steps to effect a reduction in the cost of running his department. John A. Ransom,
resident controller of the New York Branch, testified that he issued these instruc-
tions to Miannay after it was decided to make an effort to reduce expense in the
department in which the drivers worked, and also that it was deemed advisable to
reduce the number of men in that department because of existing business conditions.
Miannay, having received these instructions, proceeded to effect reductions in
force, according to his testimony, by laying off Zappa, Monigan, and DiCaprio after
the closing of the automobile show in New York City on January 24.5
Miannay related that shortly before January 16, he had heard rumors from out-
side sources that the drivers were interested in union organization; that on Janu-
ary 16 he asked Monigan whether there was anything to the rumor that "the Union
is going to come in here" and Monigan replied, "yes, all the extra drivers are join-
ing up" and that on a day in January, when DiCaprio was sitting at his desk he
said to him, "Joe, have you signed up for the Union?" and that DiCaprio said, "yes,
I think it is for the best that I do." Miannay stated, too, that he had questioned
the 3 permanent or regular drivers (Ebbitt, Lowry, and Raia) concerning the ru-
mors about the Union and whether or not they had joined and that they told him
that they did not intend to sign applications for membership in the Union; that in
the first part of February he had asked Foley, 1 of the extra drivers, whether he
had heard rumors about a union and whether he was going to join; and that other
times he had asked 2 other extra drivers, Snyder and Reviello, questions to the
same effect. The substance of all of his questions, according to him, was as to
whether or not each man had heard rumors of the Union or was interested in join-
ing the Union or was going to join the Union. He denied flatly having questioned
Zappa about the Union or his membership therein, and he also vigorously denied
that statements attributed to him by Monigan, DiCaprio, and Zappa, to the effect
that previously, when men had become interested in a union, they were laid off
or did not continue to work there.
His testimony in connection with his conversation with DiCaprio and Zappa on
the afternoon of February 5, at the time he notified them of their discharges, does
not conflict in substance with the report of that conversation as given by DiCaprio.
However, Miannay testified that when he attempted to give them their pay on that
occasion, they became rather abusive and made comment to the effect that Miannay
had not seen the end of the matter. Miannay gave curiosity as his reason for ques-
tioning the men concerning the Union:
Trial Examiner REYMAN• Hadn't anyone ever told you about your respon-
sibilities under the National Labor Relations Act-how far you could eo in
talking to employees, or asking them questions about their desires or inten-
tion-, ab^nt membership in the Union9 Hadn't anyone ever told you that9
The WITNESS: No, sir. For the simple reason this was the first time that
anvthing ever came up about a Union.
Trial Examiner REYMAN: Then I understand, Mr. Miannay, that you said
you heard about a Union, some rumors about a Union in your shop, and you
yourself, out of your personal curiosity, for your own information. asked these
people whether or not they were involved, so to speak, in a union activity.
Is that a fair statement or not?
(Nn response )
Trial Examiner: My question is based solely on what I think you have said,
that you heard rumors.
The WITNESS: Yes, sir.
Trial Examiner REYMAN: Well, say that Monigan or Zappa were interested
in the Union, and you wanted to fihd out for your own benefit, how many other
of the nPonle that you supervised were interested in the Union?
The WITNESS : Yes, Sir.
Trial Examiner REYMAN: Is that correct?
The WITNESS: Yes.
5 The record is not precisely clear as to the actual dates of the automobile show. The
New York Times reported that the General Motors Motorama was previewed on January
17, opened January 18 , and closed on January 24.
GENERAL MOTORS CORPORATION 1443
According to Miannay, he at no time discussed the interest in the Union of the
men under his supervision with Earnest or Ransom, his superiors, or informed
them that he had talked to or questioned any of them, until he was called in and
shown the letter of January 19, in which the Union requested recognition. He said
that 2 or 3 days after the time Earnest received that letter from the Union, Earnest
called him in and asked him if he knew anything about it-then he told Earnest
that he had "for my own curiosity" questioned Monigan who had told him that he
(Monigan) and "all the rest of the men were going to join the Union." Earnest,
he said, then remarked, "Well, then, that's what we are receiving this letter for."
From the testimony of Miannay and the testimony of Monigan, Zappa, and
DiCaprio, as well as Ransom, the Trial Examiner gained the distinct impres-
sion that Miannay had, in general, full control of his department. That is to say,
when he received definite instructions from above he was given those instructions
with the thought that he knew how to execute them and that he did so in his own
way. There is nothing in the record to indicate that Ransom or Earnest or any-
one else ever issued instructions of any kind to any of the men under Miannay's
supervision concerning their duties and assignments. Apparently he enjoyed the
full confidence of his superiors who were content to let him run his department.
An important question of fact to be resolved is whether Miannay threatened
the men under his supervision, or offered or promised them economic benefits,
as charged. On this question, counsel at the hearing spent a considerable amount
of time and effort, the one side in attacking the credibility of Miannay and the
other side in defending it. The same comment is applicable as to Monigan, Zappa,
and DiCaprio. The Trial Examiner is of the opinion that none of these men in-
tentionally deviated from an honest attempt to relate the facts as he best remem-
bered them. Monigan, for instance, testified positively that he worked every Sat-
urday after his first employment, whereas Miannay said he did not-the records
made available at the hearing show that Monigan did not work every Saturday, but
that he missed working very few. Miannay denied that he questioned Zappa con-
cerning his union membership, although he freely admitted that he had asked almost
everyone else whether they had "signed up." The essential facts are not in dispute,
and the Trial Examiner finds it unnecessary to try to decide whose memory in
these respects was the more accurate.
Miannay denied that he intended or did in any way threaten the men with loss
of their jobs because of their interest in the Union. If the remarks attributed to
him actually were made, the import thereof as reported, and the circumstances
under which they are said to have been made, standing alone, could at that time
be taken as nothing more than indiscreet comment from supervisor to employee.
However, taken together with the questioning of the employees, and the subse-
quent discharge of some of them, they would clearly constitute an attempt at
coercion.
The General Counsel necessarily, in support of his case, has had to rely upon
circumstances and upon what he has called "timing"-the close sequence of events.
Zappa and Monigan obtained signatures to applications for membership in the Union
on January 11 and 12; Miannay questioned employees under his supervision during
the following week concerning their interest in the Union, the Union served a written
request for recognition on the Respondent on the date of January 19; the Respondent
declined to recognize the Union under date of January 21; the Union filed its petition
for certification as representative on January 21; Monigan was discharged on Janu-
ary 25; a conference was held at the Regional Offices of the Board concerning the
Union's petition on February 4; and Zappa and DiCaprio were discharged on Feb-
ruary 5. The General Counsel vigorously contends that the discharges of Monigan
and Zappa, the 2 drivers who obtained the signatures of all of the other extra drivers
to applications for membership in the Union, and the discharge of DiCaprio, who
performed certain clerical work under the supervision of Miannay, together with the
interrogation and alleged threats made by Miannay, clearly demonstrates that the
discharges of these 3 men were discriminatory.
The Respondent asserts that these discharges were made in the regular course of
the conduct of the department managed by Miannay, that at no time since have
there been more than 7 or 8 extra drivers employed whereas at the times of these
discharges there were 11 extra drivers performing services for the Respondent, and
that in the absence of seniority rights or, rather, in view of the custom in connection
with the employment of extra drivers on a day-to-day basis, the Respondent was
under no obligation to recall any 1 of these 3 men to work even though it did ask
1 of them to work 2 days after his discharge and another 1 to work on another day.
The Respondent argues that without regard to which of the extra drivers it had
or could have discharged on these dates , it still would have been vulnerable to a
334811-55-vol. 109-92
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge of discrimination because each one of the extra drivers had made application
for membership in the Union at the time of the discharges.
Concluding Findings
With respect to the acts of interrogation by Miannay, the Respondent relies heavily
on Walmac Company (Radio Station KMAC & FM Station KISS), 106 NLRB 1355,
in support of its contention that the questions asked by Miannay from the employees
of the Respondent at the time the questions were asked, were not such acts of inter-
rogation as to contravene the provisions of Section 8 (a) (1) of the Act. The facts
in that case show that shortly before a hearing before the Board on a complaint
alleging an unfair labor practice (refusal to bargain) on the part of the company,
the company caused a supervisory employee to interrogate the employees in the
appropriate unit as to whether or not they wished union representation. The Board
there said:
As the Respondent's position towards the Union was therefore at all times
proper, all that remains that could be considered unlawful is the several interro-
gations of employees by Chief Engineer Knight in July. Because of the isolated
nature of those interrogations, we do not believe that any useful purpose would
be served by issuing a cease and desist order based on them.
The substantial difference in fact in the Walmac case, and here, is that in the instant
case the questioning by Miannay took place almost immediately after Monigan and
Zappa had solicited membership in the Union, and can in no sense be considered
"isolated" questioning.
The Respondent also relies on N. L. R. B. v. Fuchs Baking Co., 207 F. 2d 737
(C. A. 5), in which the Court, in denying enforcement of a Board order (102 NLRB
1350), said in part:
Superintendent Bingham frankly testified that he questioned two employees
concerning the Union. One of them told him that he had received his card
from an employee named Taddia, and the other replied that Donald Galvin
had given him his card. The third employee testified that Bingham asked him
if he had signed a card and that he said he had not. That was the extent of the
questioning. The employer had no anti-union background; and there was no
evidence of any pattern of conduct hostile to unions. Employee Taddia, who
was the first to contact the Union organizer, was never discharged, but some
months later voluntarily left the respondent's employ to take another job. There
was no other evidence of threats or coercion of any kind, and no statement
derogatory of the Union. [Emphasis supplied.] Under these circumstances,
mere words of interrogation addressed to a few employees are more indicative
of a natural business interest than of any interference, restraint, or coercion.
[Citing cases.] 6
The decision in the Walmac case , not to issue a cease and desist order, does not
affect the validity of prior decisions of the Board where it has considered whether
the questioning of employees concerning their union interests constitutes an unfair
labor practice. In Syracuse Color Press, 103 NLRB 377, it was held that an em-
ployer violated Section 8 (a) (1) of the Act by calling 5 employees into his office,
3 of them individually , and questioning them concerning their membership in and
activities on behalf of a union. In that decision, the Board referred to Standard-
Coosa-Thatcher Company, 85 NLRB 1358, where it had set forth its reasons for
holding that interrogation of employees concerning their union membership and
activities violates Section 8 (a) (1) of the Act, even in the absence of any other
unfair labor practice. In Syracuse Color press, supra, the court of appeals, in
granting the Board 's petition for enforcement of its order ,7 wrote:
The Trial Examiner found no evidence to warrant the conclusion that the
interrogation of employees had any coercive effect upon them , or interfered
with their rights; that there was no background of company hostility to organ-
ization. He concluded, however, that the interrogation above described was in
violation of Section 8 (a) (1) of the Act, because of the Board 's position to the
effect that the questioning of employees concerning their union membership
or activities constituted such a violation.
9 This case undoubtedly supports the position of the Respondent here. For the reasons
shown immediately below, the Trial Examiner does not regard himself as bound by the
iesult in the Fuchs case.
7 N. L. It B. V. Syracuse Color Press, Inc, 209 F. 2d 596 (C. A. 2).
• GENERAL MOTORS CORPORATION 1445
The Board adopted the findings and conclusions of the Trial Examiner with
certain modifications. As pertinent here, the Board summarized the interro-
gations of the five employees above mentioned, and proceeded to discuss the
rationale of Standard-Coosa-Thatcher Co., 85 NLRB 1358, to the effect that
interrogation of employees regarding union activities violated Sec. 8 (a) (1)
of the Act, even in the absence of any unfair labor practice. We do not here
pass upon the Board's theory or holding in that case, because the Board eval-
uated the interrogations in this case as carrying an implied threat of reprisal,
and concluded that upon the entire record a violation of Section 8 (a) (1) is
established.
Miannay, at the time he questioned the employees, was standing in the place
of management and the Respondent necessarily must be charged with responsibility
for his admitted activities.
Accordingly, the 'trial Examiner finds that the interrogation by Miannay of all
except 2 or 3 of the extra drivers, immediately after they had applied for mem-
berstup in the Union, violated Section 8 (a) (1) of the Act.
As noted above, DiCaprio claims that at the time Miannay questioned him con-
cerning the Union, DiCaprio's desue to be put on the permanent payroll was men-
tioned, and that Miannay said in effect that he would "see how this union business
works out" and then he would take the matter up with Earnest, his superior. 'this
is construed by the General Counsel to constitute a threat of reprisal or a prom-
ise or economic gain. 'the Trial Examiner does not agree. DiCaprio had been
pressing for a year or more to attain permanent status, and the remarks attributed
to him by Miannay, if made, were in response to his question, and only incidental
to the questioning of him by Miannay. No inference can be drawn that Miannay
intended to or did threaten to withhold or promise economic benefits to DiCaprio
if the latter discontinued his interest in the Union; this isolated report by DiCaprio
is insufficient to sustain the charge.
the argument made on benalf of the Respondent to the effect that business
reasons impelled it to discharge some extra drivers, and that it could have been
charged with discrimination had it selected any other extra driver or drivers for
discharge, because they had all applied for union membership, is not at all convinc-
ing in the absence of a satisfactory explanation of the reason why two of the men
most active in the union movement (who since their first employment had been steadily
engaged) and another with a long record of service, were chosen. Apparently
their services had been satisfactory,-and it would seem that in ordinary course men
with a record of less frequent employment or men more recently engaged would
have been terminated first, even though none of the extra men had formal or
established seniority rights. In this respect, the Respondent failed to meet the
prima facie case made out by the General Counsel.
As one defense to the accusation that the discharges were discriminatory, the
Respondent asserts that the three men were laid off or discharged because of a
slowing down of work, and points out that in numbers there have been fewer men
employed as extra drivers since the force was reduced .8
However, no positive evidence of the fact appears to support the testimony of wit-
nesses who appeared on behalf of the Respondent. It does appear that the Respondent
is accustomed to employ the services of an automobile rental agency from time to
time to furnish chauffeurs services, and that the practice existed both before and
after the discharges. the Respondent says it kept the men on through the auto
show because it had unusual demand for the services of the drivers during these
few days. Here again, the Respondent has failed to overcome the natural infer-
ences to be drawn from all of the facts.
The interrogation of the drivers by Miannay which so closely followed their ac-
ceptance of the Union, together with the discharges of the three men, accomplished
a foreseeable result-the discouragement of membership in the Union. On the
preponderance of the evidence herein, the inference must be drawn that the Re-
spondent so intended. The Respondent by its activities in these respects was clearly
in violation of Section 8 (a) (3) of the Act. The Respondent, by Miannay, dis-
charged Monigan, Zappa, and DiCaprio for their concerted activities for the purpose
of collective bargaining, and discriminated against them in regard to their tenure
of employment because of their union membership and activities, and the Trial
Examiner so finds.9
B It was during the auto show that Miannay received his instructions to economize, and
it was immediately after the close of the show that the men were let go.
B Specific evidence of intent to encourage or discourage membership in any labor organiza-
tion is not an indispensable element of proof of violation of Section 8 (a) (3). Radio
Officers' Union of the Commercial Telegraphers Union, AFL, v. N. L R. B., 347 U S 17.
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the activities of the 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
the Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act. The Trial
Examiner has found that the Respondent has discriminated in regard to the hire
and tenure of employment of Thomas D. Monigan, Hugo, jZappa,, and Joseph
DiCaprio.
It will be recommended that the Respondent offer to each of them full and imme-
diate reinstatement to his former or substantially equivalent position and make him
whole for the 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 would have earned
as wages from the date of his discharge to the date of the offer of reinstatement, less
his net earnings, the loss of pay to be computed on a quarterly calendar basis in
accordance with the formula adopted by the Board in F. W. Woolworth Company,
90 NLRB 289.
Upon the basis of the foregoing findings of fact and upon the entire record of
the case, the Trial Examiner has arrived at the following:
CONCLUSIONS OF LAW
1. Local No. 807, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL, is a labor organization within the meaning
of Section 2 (5) of the Act.
2. By discriminating in regard to the hire or tenure of employment of Thomas
D. Monigan, Hugo Zappa, and Joseph DiCaprio, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
3. By such discrimination, and by interrogating its employees concerning their
membership in and activities on behalf of the Union, and by interfering with, re-
straining, and coercing its employees in the exercise of the rights guaranteed by
Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
F. W. WOOLWORTH Co. and RETAIL CLERKS INTERNATIONAL ASSOCIA-
TION, LOCAL 631, A. F. OF L., PETrrIONEr,. Case No. 19-RC-1313.
Septembe r 00, 1954
Supplemental Decision and Certification of Results of Election
Pursuant to a Decision and Direction of Election issued by the
Board on July 22, 1953,1 as amended on January 11, 1954,2 an election
by secret ballot was conducted on February 9, 1954, under the supervi-
sion of the Regional Director for the Nineteenth Region, among the
employees in the appropriate unit at the Employer's store in Yakima,
Washington. Upon completion of the election, the parties were fur-
Not reported in printed volumes of Board Decisions and Orders.
z 107 NLRB 732.
109 NLRB No. 203.