Sam Winer Motors, Inc.

National Labor Relations Board - Board Decisions

Aug 20, 1962

138 N.L.R.B. 198 (N.L.R.B. 1962)

198 DECISIONS OF NATIONAL LABOR RELATIONS WARD
from bargaining units comprised of other employees in the department store. See,
e.g., Duane's Miami Corporation, 119 NLRB 1331, 1335; The Sperry and Hutchinson
Company, 117 NLRB 1762, 1764, footnote 5. But assuming arguendo that the
employees in the leased departments here would not be included in a unit compris-
ing the GEM store, it by no means follows that they are included in the preexisting
unit of Respondent's retail stores as an accretion thereto. At least three possibilities
exist: they may be an automatic accretion; they may be included in that unit only
after a self-determination election; and they may be excluded therefrom and required
to comprise a unit of their own. For purposes of this proceeding, I need answer
only the first question: do these departments constitute an accretion to the pre-
existing unit by operation of law and without regard to the wishes of the employees
therein? Stated otherwise, the question is whether these departments should be
considered as simply a new retail store or stores in Respondent's chain (in which
case they would be an accretion to the unit; see Jewel Food Stores, a Department
of Jewel Tea Co, Inc., 111 NLRB 1368), or whether they should be considered as
sufficiently different in character to lead to the conclusion that the "accretion"
principle is inapplicable.
A consideration of the Board cases finding or rejecting "accretions" leaves me with
little doubt that the departments here do not constitute an accretion to the pre-
existing unit of retail stores. In reaching that result, while I rely on the entire
congeries of facts, I am particularly impressed by the nearly complete lack of trans-
fer between the stores and the GEM departments, the differences in duties between
the store employees and those in the GEM departments, the extent to which GEM
controls the labor conditions in the leased departments (minimum wage, sick leave,
and vacation policy), and the administrative difference which Respondent observes
between the stores and the GEM departments, particularly in the sources of supply.
See particularly Essex Wire Corporation, 130 NLRB 450, 453; Longs Stores, Inc.,
a California Corporation, 129 NLRB 1495, 1496-1497; Kraunbo Food Stores, Inc.,
119 NLRB 369, 373; Pay Less Drug Stores, 127 NLRB 160; Hot Shoppes, Inc., 130
NLRB 138; See also Pacific States Steel Co., 134 NLRB 1325; Buy Low Super-
market, Inc., 131 NLRB 23, Houck Transport Company, 130 NLRB 270; Armstrong
Cork Company, (Lancaster Floor Plant), 106 NLRB 1147; Scrivner Stevens Com-
pany, 104 NLRB 506; Price National Corporation, 102 NLRB 1393; Ware Labora-
tories, Inc., 98 NLRB 1141; American Can Company, 98 NLRB 1190; Thatcher
Glass Manufacturing Company, 97 NLRB 238. Compare Robert Hall Clothes,
Inc, 118 NLRB 1096; Borg-Warner Corporation, 113 NLRB 152; Birdsboro Armor-
cast, Inc., 101 NLRB 22.
It follows that Respondent did not violate the Act by refusing to recognize the
Union as bargaining representative of the employees in the leased departments and
by refusing to apply the collective-bargaining agreement to those employees.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of-
the Act.
3. Respondent has not engaged in the unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case, it is recommended that the complaint herein be
dismissed.
Sam Winer Motors, Inc. and International Association of Ma-
chinists , Lodge 762 , AFL-CIO. Case No. 8-CA-2673. August
20, 196.e
DECISION AND ORDER
On June 20, 1962, Trial Examiner James A. Shaw issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor-
138 NLRB No. 29.
SAM WINER MOTORS, INC. 199
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in the case, including the excep-
tions and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.'
I The notice appended to the Intermediate Report is hereby amended by deleting the
phrase "This notice must remain posted for 60 days from the date hereof," and substitut-
ing therefor the phrase "This notice must remain posted for 60 consecutive days from the
date of posting."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on January 12, 1962, by the International Association of
Machinists, Lodge 762, AFL-CIO, herein called the Union, the Regional Director
of the National Labor Relations Board for the Eighth Region on March 1, 1962,
issued a complaint against Sam Winer Motors, Inc., herein referred to as the
Respondent , alleging violations of Section 8(a)(1) and ( 3) of the National Labor
Relations Act, herein called the Act . In its duly filed answer , Respondent admitted
certain allegations of the complaint but denied the commission of any of the alleged
unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner James A. Shaw at
Akron, Ohio, on April 16, 17, and 18, 1962. All parties were represented at the
hearing and were afforded full opportunity to be heard, to introduce relevant evi-
dence, to present oral argument, and to file briefs after the close of the hearing.
The General Counsel presented oral argument in support of his position . Counsel
for the Respondent waived oral argument and chose to file a brief in support of his
position which was received on or about May 24, 1962. It has been duly con-
sidered by the Trial Examiner.
On or about May 21, 1962, the General Counsel filed with the Trial Examiner
a motion to correct record. The motion is hereby granted ; and has been placed
in the formal exhibit file as Trial Examiner's Exhibit No. 1.
Upon consideration of the entire record , the arguments , and briefs of the parties,
and upon the Trial Examiner 's observation of the witnesses , he makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, the answer admits , and the Trial Examiner finds that
Respondent is, and has been at all times material herein , a corporation organized
under and existing by virtue of the laws of the State of Ohio. At all times material
herein , Respondent has maintained its principal office and place of business in
Akron, Ohio, where it is engaged in the business of buying and reselling or buying,
rebuilding , and selling construction and industrial motor vehicles and parts.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the past year, Respondent, in the course and conduct of its business oper-
ations, sold and shipped equipment valued in excess of $50,000 from its principal
place of business to States other than the State of Ohio.'
Upon all of the foregoing the Trial Examiner finds that the Respondent is, and
has been at all times material herein, engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists , Local 762, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
Prefatory Statement
In the Trial Examiner's opinion, a better understanding of the issues herein would
be had by all concerned by a resume of the record as regards the Respondent's
operations and facilities at its place of business in Akron, Ohio.
As indicated above the Respondent is an Ohio corporation, with its principal
place of business in Akron, Ohio, where it is engaged in the business of buying and
reselling or buying, rebuilding, and selling construction and industrial motor vehicles
and parts. According to Sam Winer, vice president, the Respondent's sprincipal
source of supply is from ". . . sales conducted by the military authorities" at
military bases scattered "all over the world." As the Trial Examiner interprets the
record, the equipment is returned to its place of business in Akron, Ohio, where
it is reconditioned, and for the most part resold to the Armed Forces from whom
it was originally purchased.2
At all times material herein the Respondent's affairs were in charge of the
following persons, Simon Kloner, president; Sam Winer, vice president; and Harry
Fairhurst, Sr., shop foreman.
Though the record is somewhat "hazy" as regards the duties of Winer and
Kloner, the Trial Examiner is convinced that Kloner spends most of his time at
the plant and that Winer does the buying and selling which as indicated above
requires his absence from the plant for long periods of time. According to Harry
Fairhurst, the shop foreman, he "does most of his business" with Kloner. From
all of the foregoing the Trial Examiner finds that at all times material herein active
management of the Respondent's business operations at its Akron, Ohio, facilities
was under the supervision of Kloner,'and Harry Fairhurst, Sr., the shop foreman.
At times material herein the Respondent had between 35 and 40 employees. Though
the record is none too clear as to their job classifications, the Trial Examiner is
convinced that Winer's testimony in this regard is sufficient for descriptive purposes
herein, consequently the following excerpt therefrom follows below:
Q. Now, do you have some employees, the company has employees?
A. Yes.
Q. About how many?
A. Oh, I would say between 35 and 40.
Q. And are some of those men engaged as maintenance and production
workers?
A. They are.
Q. And what is the nature of their work as maintenance and production
workers?
A. We have some part replacers, some painters, some mechanics, some
fellows that do the scrapping and cutting up of material that is obsolete.
A. The incidents leading up to the discharge of Clarence J. Cingle 3
In the Trial Examiner's opinion, the most important incident that we are con-
cerned with herein is that which occurred during the lunch hour, 12:30-1:30 p.m.
' Quoted section from the complaint
2 Quotes from the record
2 Before proceeding further the Trial Examiner desires to point out to all concerned
that he has been greatly perturbed by the "confused" state of the record herein, par-
ticularly the "mechanical" condition thereof and the testimony of the witnesses Cingle
and Fairhurst. With that in mind he makes the following comment In the first place
as assures the parties that be has based all of his findings herein upon the record con-
sidered as a whole, which he has read and reread many times, and from his observation
SAM WINER MOTORS, INC. 201
on January 8, 1962. He has reference to a casual meeting between the following
employees, Clarence J. Cingle, James Rickenbacker, Edward Spence, and James
McCloud.4 According to the record, these employees met by mere happenstance
on a balcony over the shop during the lunch period. While they were eating their
lunch one of them, "Junior" Rickenbacker, brought up the subject of working con-
ditions around the shop, particularly as regards the Respondent's cancellation of
its policy to give its employees "Holiday Pay." During the course of their dis-
cussion either Rickenbacker or Cingle brought up the possibility of unionizing the
plant as a means of improving their working conditions. Though the record is
more to allow as to who brought up the subject of "Unions," it does show that
Cingle told the group he had been a member of the Charging Union and had an
"honorary withdrawal card" therefrom. In any event Cingle suggested that they
pass a paper among the employees and have those who were interested in a union
sign it, and if enough of them did so he would get hold of officials of the Charging
Union. After some further discussion all agreed with Cingle's suggestion. He
then left the balcony and returned to his working place to get a paper to pass around
among the employees. According to Cingle this was about 12:50 p.m., and during
the period of his lunch hour.
We now come to one of if not the most, controversial issues herein. The Trial
Examiner has reference to Cingle's role in the circulation of the paper among the
Respondent's employees to be signed by those who desired representation by an
"outside" union.5
As indicated above Cingle left the group on the balcony and returned to his
working place to get a piece of paper and a pencil. The first employee he saw was
Ishmal Harwell, who worked near him in the motor room. He asked him if he
was interested in "joining a union and bringing it in." 6 According to Cingle, Harwell
said he was, and that he would like to sign the paper. Cingle then handed the
paper to him and he signed it. As indicated, Harwell was the first employee to sign
the paper.?
After Harwell signed the paper, Cingle took it around the plant for other em-
ployees to sign, and secured the signatures of Ken Durham and Bob Keefer. In
addition he signed it for one Dave Bragg, who, according to the record, instructed
him to do so. Cingle then signed it himself, land returned to his working place.
Shortly thereafter "Junior" Rickenbacker came by and picked up the paper. In
passing the Trial Examiner desires to point out that among those whom Cingle
approached and asked to sign the paper was one Michael McCullough, who refused
to do so. The importance of this observation will be apparent below. Suffice it
to say at this stage of the report that it was McCullough who informed Foreman
Fairhurst of Cingle's activities in this regard shortly before he discharged him.
Another important factor to bear in mind is that all of Cingle's activities regarding
the paper were carried out during his lunch hour.
We now come to what the Trial Examiner considers another important phase of
the case at hand. He has reference to Cingle's relations with one of his coworkers,
Ishmal Harwell. As indicated above Harwell and Cingle worked near each other in
the motor room. Since one of the major defenses of the Respondent regarding its
of the witnesses who testified at the hearing herein In the circumstances the following
is a composite picture of all the factual issues involved with respect to this subsection.
Again, as noted above, the parties may be assured that in reaching all resolutions of
credibility, findings, and conclusions herein, the record as a whole has been carefully re-
viewed, been duly weighed, even though not specifically discussed
Due to the "timing" of the incidents we are primarily concerned with herein the Trial
Examiner will not set forth his "conclusions and findings" to the separate allegations in
the complaint as he disposes of the facts, as he finds them in the order of their occurrence,
but in his final summation thereof in that section of the report herein styled " Concluding
and Overall Findings."
*Cingle is referred to in the record as "Joe," and at times "Joe Singleton" ; James
Rickenbacker is referred to by practically all of the witnesses as "Junior." In the circum-
stances and to avoid confusion the Trial Examiner shall refer to Clarence J. Cingle, as
"Cingle" and at times as "Joe," particularly where quoted portions of the record are
referred to. As to Rickenbacker, he will refer to him as either "Junior Rickenbacker" or
"Rickenbacker," depending upon the circumstances at times it is necessary to refer to him.
6At the hearing herein the witnesses referred to the document in question (General
Counsel's Exhibit No 2) as the paper. An examination thereof shows that it contains
only the names of the Respondent's employees who signed it. The first name thereon is
Ishmal Harwell,
c Quotes from Cingle's credible testimony.
I Harwell's version of the incident will be discussed below.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,discharge of Cingle stems from their day-to-day association, the Trial Examiner
.feels compelled to devote a portion of his report to the impression they made upon
him at the hearing herein, both as regards their demeanor while testifying before
him and their conduct while in his presence during the course of the proceedings
herein. Since a considerable portion of the testimony elicited by counsel for the
parties at the hearing herein relates to specific incidents regarding Cingle's attitude
toward Harwell, the Trial Examiner will not elaborate on such incidents at this stage
of the report, but will dispose of them below as they fit into the overall picture of
the issues herein. Suffice it to say at this point that Cingle impressed the Trial
Examiner as a very nervous and belligerent person. His conduct while seated at
counsel table as a party to the proceedings herein quite frankly caused the Trial
Examiner grave concern. Since all parties involved herein witnessed the incidents
referred to, the Trial Examiner will refrain from further comment in this regard,
except to point out that he also impressed the Trial Examiner as a sickly and frus-
trated person who was unconscious of the effect of his belligerency upon either
those toward whom it was directed or the public in generals
Before proceeding further the Trial Examiner is convinced that at this stage of
the report he should set forth a resume of Cingle's employment record both before
and after he entered the Respondent's services on or about October 12, 1961. At the
time of the hearing herein he was 31 years old. Before entering the Respondent's
service he had worked for three or four other employers in the Akron, Ohio, area,
.as a mechanic. As indicated above he was a veteran of the Korean war and was in
the service for approximately 3 years.
The record clearly shows that the Respondent considered him a better than aver-
age mechanic. This is amply illustrated in Fairhurst's testimony, wherein at one
point he said that he was not only a good worker, but the best that the Respondent
had in its employ at times material herein. Further evidence in this regard is
illustrated by the fact that his starting salary was $75 per week, but was raised
to $85 a week or two after he was employed. When this factor is considered in the
light of the fact that it was the Respondent's normal practice to pay its mechanics
$75 per week through the first "90-day" period, and to then grant them a raise of
$5 per week if their work was satisfactory, the Trial Examiner is convinced that
there is no issue herein as regards Cingle's ability gas a mechanic. Consequently he
sees no necessity for further comment in this regard.
As indicated above Cingle returned to his working place about 1.30 p.m. which
was the end of his lunch period. About 20 minutes later, Fairhurst came into the
motor room and grabbed Harwell by the arm and took him back to the parts room.
According to Cingle's credible testimony they were gone several minutes. After
their return to the motor room, Fairhurst left and he asked "Ish" what happened .9
Harwell told him, in substance, that it was about the "paper" that he had signed.
About 20 minutes later Fairhurst returned to the motor room and ". . . took Ish
Harwell by the arm again and to the office." 10 They were gone about an hour.
According to the record, Fairhurst stood around the motor room for a few minutes
and then turned to Cingle and said, ". . . as of 3 p m., you are fired." At the time
he had a check in his pocket which he later gave to Cingle. Since the Trial Examiner
considers Cingle's account of what transpired at this time of considerable importance
he inserts the following excerpt from his testimony in this regard herein below:
I said, "What do you mean fired?" He said, "You are fired. That is all."
I said, "You mean you are laying me off or firing me or what? I would like
to know." He said, "Well, it comes from the head office." I said. "Well, there
is no excuse to fire me without a reason is there?" He said, "We have got
reasons." I said, "What are they?" He said, "We heard you were circulating
8 According to Cingle's credible testimony he was a disabled infantry veteran of the
Korean war To the Trial Examiner at least this alone would be a contributing factor to
'his physical and mental condition
8 At this point the Trial Examiner desires to point out that the witnesses herein used
various descriptive phrases when referring to Ishmal Harwell, such as, "Old Ish," "Ish,"
and "that poor old man." As lie Trial Examiner sees it, Fairhurst, who was a most
loquacious witness, used not only the foregoing appelations but others as well when re-
ferring to Harwell. From his testimony in particular the Trial Examiner visualized
Harwell as a "tottering old man" in his dotage. Consequently when the Respondent called
him as a witness in its behalf , the Trial Examiner was pleasantly surprised to observe
that "Old Ish" not only belied the "twaddling publicity" he had been subjected to by previ-
ous witnesses but appeared and acted like a normal person despite his age, which he ad-
mitted was 61 years at the time he testified at the hearing herein. Moreover, he impressed
the Trial Examiner as an intelligent and, in the main, an honest witness.
is Quotes from Cingle's credible testimony.
SAM WINER MOTORS, INC. 203
a -paper around for people that wanted to join a union. Is that right or is it
wrong?" I said, "I don't have a paper on me. If you want to search me, go
ahead." He said, "I don't have to search you. Ishmal Harwell said you passed
the paper around."
Q. Anything else?
A. He said, "I never done this .to a guy. You are a darn good worker and
I like you and everything. I can't understand why you want to go union."
He said, "You know these stupid hillbillies and Ishmal Harwell is feeble-minded.
I warned him several times in front of you for his conduct and his work is no
good. He does things he don't remember doing. He says things he don't
remember doing, and besides you told me onetime you were going to quit and
go to school."
I said, "Anybody can tell you they are going to go to school. If I said I was
going to go to school it may be 10 years from to date and I can tell you any-
thing about school."
Shortly after his discharge Cingle went over to Rickenbacker's working place
and picked up the "paper" containing the signatures of the employees who were
interested in an "outside" union.
As indicated above one of the major defenses of the Respondent is that Cingle
was belligerent and abusive toward one of his coworkers, "Old Ish" Harwell. In
view of its position in this regard and the further fact that Harwell was the first
person to sign the "paper," and was interrogated privately by Fairhurst on two
different occasions immediately prior to Cingle's discharge, the Trial Examiner feels
that he should insert Harwell's account of what transpired on these occasions. The
importance of Harwell's testimony in this regard will be apparent below. Suffice
it to say at this stage of the report that Harwell testified as a witness for the Re-
spondent herein in support of its case-in-chief.
Q. Can you tell the Court what the substance of that conversation was?
A. Well, he told me that he understood Joe Cingle was passing a paper
around to organize a union and that I signed it. I told him, "Yes, I signed
it." He said that the boss had said ,they was going to discharge everybody
that was connected with it. Well, I said, "I didn't think it amounted to any-
things." That is about all I can recall at the time.
Q. Did you give any reason why you had signed it?
A. No.
Q. Did you tell Mr. Harry Fairhurst?
A. No.
Despite the fact that Cingle had had an argument with Harwell a week or so
prior to his discharge, the Trial Examiner is convinced and finds that Harwell
signed the "paper" in question of his own free will and without compulsion from
Cingle or anybody else, and was merely exercising his rights under the Act. This
is likewise evidenced below by another excerpt from Harwell's testimony on direct
examination which follows below:
Q. On this day, 8th day of January, you did sign your name, did you not,
to this paper? It has been marked as "Exhibit No. 2," do you recognize this
paper with your name at the top?
A. Yes.
Q. Is that your signature?
A. That is.
Q. Can you tell the Court where you were when you signed that?
A. In the engine room working.
Q. Was it during your noon hour?
A. I was working, yes.
Q. I beg your pardon.
A. I was on the job, yes.
Q. Was that before or after your lunch hour?
A. Well, as far as I can recall it was before.
Q. Before?
A. Yes.
Q. Did Mr. Cingle bring this paper to you to sign?
A. Yes.
Q. Can you tell us how he gave it, the paper, to you, or how he showed you,
the paper for you to sign?
A. He just passed it in front of me and asked me if I wanted to sign it_
That's all he did, yes.
Q. Did you say anything to him?
A. I just said, "Yes, I will sign it."
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. And you signed it just as it is here?
A. Just as it is here.
TRIAL EXAMINER: Just a blank piece of paper? No reason or anything?
The WITNESS: He told me or asked me-told me that he was going to form
a union around here. That is what he said.
Q. Will you say that again?
A. That he was going to organize a union. As far as I could remember,
that is exactly what he said.
TRIAL EXAMINER: Was that the reason that you signed it?
The WITNESS: Yes. [Emphasis supplied.]
Though the Respondent denies that Cingle's connection with the "paper" had
anything to do with his discharge, nevertheless the record contains some very
interesting testimony in this regard by witnesses for both the General Counsel and
the Respondent. For example, let us look at the following excerpt from Fairhurst's
testimony, which to the Trial Examiner at least is most informative when considered
in the light of the record as a whole:
Q. Now, to direct your attention, if I may, to your testimony in regard to
your conversation with Mr. Winer relative to Joe Cingle on January 8, when
was the first time that you talked to Mr. Cingle on January 8 relative to the
paper or any other matter relating to his conduct as an employee?
A. I just walked in and I said, "Joe, I hear you are passing a petition around."
He said, "Hell, no, I ain't passing no petition around here. Try to find it.
Look, I ain't got it. I ain't passing it around."
Q. Is that when he was discharged?
A. Nope, not right then, no.
Q. Then what happened, that is when you talked to Mr. Harwell?
A. That is when I talked to Mr. Harwell.
Q. And to Mr. Winer and from Mr. Winer's office you came back and dis-
charged Mr. Cingle?
A. That is right.
When the foregoing is considered in the light of Harwell's testimony as regards
Cingle's role in the passing around of the "paper," and that of other witnesses who
were queried by Fairhurst in this regard, such as Tracy Warden, the Trial Examiner
is convinced that this incident was the primary reason for Cingle's discharge.
Among the employees queried by Fairhurst as regards Cingle's role in the "paper"
passing in addition to Harwell, were the following, Rickenbacker, Hollinger, Spence,
and Warden. An examination of their testimony in this regard shows but little
variance in their separate accounts of their interviews by Fairhurst on January
8, 1962, shortly after Cingle was discharged.I" Typical of their testimony in this
regard is found in the following excerpt from the credible and uncontradicted testi-
mony of Tracy Warden, Jr.:
Q. Did any supervisors have any occasion to discuss the circulation of the
paper with you on that day?
A. Yes, he did.
Q. Who was it?
A. Harry Fairhurst.
Q. Who was he?
A. He is my foreman out there at Sam Winer Motors.
Q. What time was this in the day?
A. The latter part of the day, probably around 3:00 o'clock or so.
Q. Was anyone else present on this occasion?
A. No, there wasn't.
Q. Where did the conversation take place?
A. Where I was working, at my working area.
Q. What did he say to you?
A. He asked me, "Did anyone approach you with a paper to get a union in
the shop." I said, "Yes." He said, "Who was it?" and I said, "It was Joe
Cingle." He said Joe Cingle had been canned and gotten rid of.
Fairhurst's account of his interview with "Old Ish" in the motor room is important
for several reasons, first, and, most interesting, is his testimony as to how he
broached the subject of the "paper" incident to "Ish," and, secondly, his testimony
as regards his knowledge of the "paper" being "passed around" before he went
11 See infra In re Fairhurst's testimony that he was first informed of Cingle's circulation
of the "paper" by one Michael McCullough
SAM WINER MOTORS, INC. 205
back to interrogate Ish as to why he signed it. Consequently the following excerpt
from,Fairhurst's testimony in this regard follows below: 12
Q. What was the occasion for your having some conversation with Joe
Cingle on that day?
A. Well, one of the fellows came to me and told me that Joe Cingle was
passing around a petition.
TRIAL EXAMINER: What?
The WITNESS: A petition to be signed. What the deal was there-do you
want me to tell them?
TRIAL EXAMINER: Go right ahead, tell what happened.
Q. (By Mr. BELDEN.) Tell what happened.
A. What happened was I walked in there and asked Joe if he was passing
around a petition and he said no, he was not. So, I knew something was
going on because then another fellow told me. Then Ishmal Harwell worked
in the same room with Joe. I got Ishmal and took him back in the parts
room. I didn't ask him or anything I said, "Ish, why did you sign that peti-
tion?" At the time, I didn't even know he signed it.
He said, "Harry, Joe brought that petition around and I am scared to death
of Joe. I signed that petition because I am afraid of what he might do to me."
Now, do you want me to explain why that situation came up?
TRIAL' EXAMINER: What was the petition for? What did he tell you?
The WITNESS: The petition was taken around to have guys sign . Actually,
I never seen the petition.
TRIAL EXAMINER: That was not my question.
The WITNESS: All I know was his say on the deal.
TRIAL EXAMINER: What was the hearsay?
The WITNESS: The hearsay was that he was passing the petition around to
get names to contact the union.
Fairhurst further testified that the reason he said to "Old Ish," "Why did you
sign that petition?" when in fact he hadn't the slightest idea who had signed it, was
for "psychological" purposes. His explanation as to why he made such an approach
is couched in language unfathomable to the Trial Examiner who admittedly is not
versed or learned in the field of "Psychology," and consequently not a "psycholo-
gist," who alone could unravel his testimony in this regard. Consequently the Trial
Examiner has no further comment, except to say that he is convinced and finds
that Fairhurst had been informed by someone who had seen the "paper" that the
first name thereon was that of "Ishmal Harwell." This to the Trial Examiner, at
least, explains Fairhurst's taking "Old Ish" aside to interrogate him about the
"paper."
The Trial Examiner has pointed out above that one of the major defenses of the
Respondent herein to its discharge of Cingle is that he was belligerent toward other
employees, particularly "Old Ish.", In support of its position in this regard it
offered the testimony of Fairhurst and Harwell regarding an incident which Fair-
hurst testified occurred 3 or 4 weeks before Cingle was discharged on January 8,
1962.13 According to the record the incident arose during Cingle's lunch period in
the motor room. After long and careful consideration the Trial Examiner is con-
vinced that here again the best account of the incident is found in the testimony of
those involved therein. In the circumstances let us first look at the following excerpt
from Cingle's testimony in this regard:
Q. Did you ever threaten Mr. Ishmal Harwell with bodily injury?
A. No, I have not. We had an argument one time, yes.
Q. When was that with reference to January 8?
A. It was about a month before then when we had a row when he was
running the engine in the engine room with monoxide gas and not heat. I was
trying to eat lunch and the monoxide gas got into my lunch. I told him if
he can wait until I go somewhere else and eat, do so, or until I get through
eating. He said, "I am tired of Harry Fairhurst around here saying that I
am stupid and everything else." I told him about running the engine to get
heat, that was the only way we could get heat. I didn't care which way he
got mad. If there is monoxide gas, I don't believe you or anybody can stand it.
i TRIAL EXAMINER: Is that the only heat?
The WITNESS: Yes.
0
12 It Is to be noted that In the above excerpt, Fairhurts refers to the "paper" as the
"petition ." At all times he has reference to General Counsel's Exhibit No. 2.
is For the importance of this incident see infra.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harwell's testimony in this regard is summed up in the following excerpt from
his testimony:
Q. Had you had some trouble with Mr. Joe Cingle yourself?
A. Yes.
Q. When?
A. It was about a week before that they fired him.
Q. And the trouble that you had pertained to your being on the job working?
A. Yes.
Q. What happened on that occasion?
A. Well, I had an engine that I was required, they told me to run it four
hours, put it on the test stand. He wanted me to shut it down. He didn't like
to hear it run. I said, "No, I wasn't going to shut it down," Well, he said
he was going to shut it down at noon. I said, "No I am not." He looked at
it and says, "Do you want to fight? Do you want to go outside and fight?"
I said, "No, I have no reason to fight. I want to get along with you, if I can."
About at that time Harry walked in, the foreman, and said, "What is going on
here?" Well, I said, "This fellow is going to shut this motor down. I told
him he could not and he said, `Nobody is foreman around here but me."' He
said, "What is the matter that you can't go outside and eat?" Well, I don't
recall Joe saying anything. That is about all there was to it. Then he said,
"You lay a hand on this old man and l will kick your butt."
Q. Fairhurst said that?
A. Yes.
TRIAL EXAMINER: Kick his behind?
The WITNESS: Yes, sir. That is about as much as I can remember.
Q. Did you have any trouble with Joe Cingle any other time?
A. Yes, continual trouble with him.
Q. From that particular occasion?
A. It seems to be better after that. I got along with him better after that.
Q. But, you had trouble with him before that occasion?
A. Yes. [Emphasis supplied.]
Further evidence that .the Respondent relies on this incident as a major defense
to its discharge of Cingle is found in Fairhurst's testimony on cross-examination
where he testified that ". . . Joe Cingle wasn't fired for soliciting. It was for start-
ing a commotion with the man. This was the second commotion and I didn't want
no more truoble." 14
In passing the Trial Examiner desires to call attention to the fact that Harwell
testified that Cingle treated him "better" after the motor room incident.
The second major defense of the Respondent to the charge that it discharged Cingle
for the reasons alleged in the complaint is that he had "quit" his job as of January
20, 1962, "to go back to school" and, that in order to forestall any "commotion"
between Cingle and Harwell, it decided to move his resignation up to January 8.
1962, to avoid another incident similar to that which had occurred in the motor room
a few weeks before; and that business was "slack" in the department in which Cingle
worked, and it saw no point in keeping him on the payroll until January 20, 1962,
the date he was to leave their services to "go back to school."
The foregoing is the Trial Examiner's summation of the many reasons advanced
by Fairhurst in his testimony at the hearing herein in justification of its discharge of
Cingle on January 8, 1962. Though Fairhurst's testimony is most confusing, the
Trial Examiner is convinced that after he interrogated "Old Ish" about signing the
"paper" the first time, that he went back to the office and told Winer about the
incident. Since Fairhurst's testimony in this regard illustrates the confusion the
Trial Examiner is faced with herein, and in addition refers to Cingle's "quitting on
the 20th" of January, to return to school, the following excerpt therefrom follows
below: 15
I went in to the old man and told him that Joe got the old man scared like a
leaf out there. I told him the next time that happened I was going to fire him.
The next time, January 8, he had already turned his resignation to me that he
14 By the phrase "the man" Fairhurst has reference to Harwell, and by "second commo-
tion" to his version of what transpired at the time Harwell signed the "paper." See
supra In re the Trial Examiner's disposition of the latter
zs In the excerpt from Fairhurst's testimony he refers to "the old man" In the first line
thereof ; the Trial Examiner is convinced and finds that at this point he was referring to
Sam Winer, the Respondent's vice president, and in the next line the phrase "old man" has
reference to Harwell.
SAM WINER MOTORS, INC. 207
was quitting on the 20th, so more or less, he was working out his notice and
I thought if I was going to have all of this trouble with him, I might as well get
rid of the trouble then and there. So, I talked to Sam and Sam said, "If he is
causing trouble, get rid of hum." [Emphasis supplied.]
I said, "Joe, you are causing trouble and we are not going to have it any
more." He said, "Who told you that I am done?"
"Besides Sam, I am firing you with Sam's orders, too."
He repeatedly denied he ever took a petition around. I don't mean we ever
proved he was, the fact he had taken that petition around had nothing to do
with me firing him. What had me getting rid of him was the fact that he was
having Ish in an uproar and Ish had just come back from having a heart attack.
He was off for two months and I wasn't going to have him do that any more.
The fact was I wasn't going to have this.
Q. What did you tell him about the reason for his being discharged?
A. Well, at the time I told him at the time that one of the reasons was for
fighting with Ish all the time. The other reason was at the time I thought it was
true. We had a 90-day trial basis. I hired him on the 12th and it was only the
8th of the month. I figured I would fire him before the 90 days were up. On
top of that, I never hired nobody in his place. We no longer needed him. He
was the youngest man we had and we still had engines sitting in the rack.
So, we didn't need him there either. I had drinking problems with other
fellows and I can't approve of this. I told him I wasn't going to have a fight
problem start. It was not just Ish, but other fellows.
It is to be noted that Fairhurst refers to at least four reasons for discharging
Cingle, (1) abuse of "Old Ish" to the point where he ". . . got the old man scared
like a loaf out there"; (2) was "working out his notice" that he was to quit on
January 20, 1962; (3) that he was still on his 90-day trial period, and "I figured
I would fire him before the 90 days were up"; and, (4) "we no longer needed him.
He was the youngest man we had and we still had engines sitting in the rack. So we
didn't need him there either," that is, for economic reasons.16
Despite all of the reasons advanced by Fairhurst, Sam Winer mentioned only one
in his testimony as regards his conversation with Fairhurst shortly before Cingle
was fired. Pertinent excerpts from his testimony in this regard is set forth below:
Q. What did Mr. Fairhurst say to you and what did you say to him?
A Mr. Fairhurst came into my office and told me he had trouble with one
of the men in the place. He was a fellow by the name of Joe Cingle, which
I vaguely knew. I said, "What sort of trouble?" He said, "Belligerent and
started a fight with another fellow in the motor room, a fellow by the name of
Ish." I don't know Ish nor Joe either. I saw them once or twice and I said,
"If he started a fight in the place, discharge him right now." He said, "Do
you want me to give him his check?" I said, "Tell him to pick up his paycheck."
that is as far as it went with me. [Emphasis supplied.]
Winer further testified that he had been warned prior to Cingle's discharge by
some of his former employers, such as his brother Art Winer, that he should watch
Cingle very carefully because he was a "trouble maker." 17 From all of the fore-
going the Trial Examiner is convinced and finds that the Respondent was well aware
of Cingle's shortcomings for quite some time before it discharged him on January
8, 1962
A most disturbing issue herein is the Respondent's contention that one of the
major reasons for its discharge of Cingle was his purported resignation on a date
uncertain, in the record, to return to school on January 20, 1962. According to
the record this issue arose under the following circumstances. According to Fair-
hurst he received a telephone call from Cingle at 11 p.m. on or about the Saturday
before Christmas 1961. His first account of what transpired is found in the follow-
ing excerpt from his testimony on direct examination:
Q (By Mr. BELDEN) Will you tell the Court what was said by you and
Mr. Cingle on that occasion9
A. Well, that night he called me about 11:00 o'clock. He called me and told
me that he was quitting. Then he said that he was a veteran and he had some
time coming and he was quitting on the 20th so he would have time to get into the
winter semester of Akron U. Like I told you, we had company there.
Q. All right. What happened then when you next saw Mr. Cingle?
A. Well, at the time I didn't know for sure if he meant it. So, on the follow-
ing Monday morning I talked to Joe and we was pretty friendly. I asked him
16 Quotes from Fairhurst's testimony set forth in the above excerpt.
17 See antra for further comment in this regard
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if he was really quitting and he said definitely he was. I told him I hate to see
him go at that time, but I was glad to see him go to college to better himself.
So, I went and told Simon Kloner. He was the guy I deal with mostly. He does
most of the administration business.
TRIAL EXAMINER: Simon who?
The WITNESS: Kloner. That was the fellow I talked to and I told him
about Joe. I asked him at that time if he wanted me to get somebody to
replace him. I told him I didn't think we needed anybody to replace him
because for the first time we were way ahead on the engines and didn't need
the amount of surplus that we had. Up to that time Joe was a pretty good
worker. After that time he slowly slacked off.
As the Trial Examiner interprets Fairhurst's testimony in this regard, it was to
the effect that Cingle called him the Saturday night before Christmas, which would
be December 23, 1961, consequently if he talked to Cmgle the following Monday
morning, that would have been December 25, or Christmas day. Since the record
indicates that the plant was closed on holidays, and that the Respondent had given
the employees "Holiday Pay" up until Labor Day 1961,18 then considerable doubt
arises as to the truth of Fairhurst's testimony in this regard. When this factor is
further considered in the light of his testimony on cross-examination to the effect that
the "telephone call" could have been a "week or two weeks before that, before
Christmas," 19 then obviously, to the Trial Examiner at least, confusion is con-
founded almost to the point "of no return." And, finally when Fairhurst's testimony
is considered in the light of Cingle's flat denial that he had made the "telephone
call" at issue in this troublesome credibility question, the Trial Examiner after long
and careful consideration discredits Fairhurst's account of the incident. Even so, he
does find upon the record considered as a whole that Cingle had on occasion dis-
cussed with some of his coworkers the possibility that he might at some time in
the future take advantage of his rights under the "G.I. Bill of Rights." 20 For reasons
set forth below the Trial Examiner rejects the Respondent's contention that the "back
to school, January 20, 1962" incident was a motivating factor for its discharge of
Cingle on January 8, 1962.
After Cingle was fired he went home and called George Able, business representa-
tive for the Charging Union herein. In the course of their conversation he told
Able about his discharge and that the employees in the plant wanted to "organize a
union ," and meet with him at "Wright's." 21 The upshot of their conversation was
that Cingle agreed to meet with Able the next day, January 9, 1962, at the Union's
offices, which he did.
As a result of this meeting Cingle contacted several employees at the Respondent's
plant and they met with Able that same evening, after working hours. During the
course of the meeting Able answered questions regarding the Union and handed
out applications for membership cards. According to Able's credible testimony there
were around 12 employees present, and that all of them signed application cards
for membership in the Union. The meeting lasted about an hour.
On the morning of January 11, 1962, Abel and George Offaus, another business
representative of the Union, called at the Respondent's office and talked to Kloner
and Fairhurst. What transpired at their meeting is, in the Trial Examiner's opinion,
of the utmost importance for the following reasons. In the first place the meeting
was held the day after several of the Respondent's employees had signed union ap-
plication for membership cards at the meeting at "Wright's place," and 2 days after
Cingle was discharged. Secondly, the testimony of Able and Offaus regarding what
was said by President Kloner at the meeting stands uncontradicted and undenied
in the record, and is fully credited by the Trial Examiner; and from their testimony,
when considered in the light of what transpired on the days that followed, a "picture,"
so to speak, is presented of the Respondent's overall attitude toward the concerted
activities of its employees. Let us first look at an excerpt from Offaus' testimony:
Q. Was anything said that day that had to do with the discharge of Joe
Cingle?
A. Yes. George Able asked why Cingle was discharged and Mr. Kloner said
Mr. Fairhurst had discharged him. Mr. Fairhurst agreed that he had discharged
him and said he had discharged him because he said he was going to quit.
1B See supra In re the meeting on the balcony on January 8, 1962, during the "lunch
hour" period, and the discussion of those present about the Respondent's "Holiday pay
policy."
19 Quotes from Fairhurst's testimony.
2a The phrase commonly used by most of us in discussing veterans' rights
21 According to the record "Wright's" is a "truck stop" or restaurant near the Respond-
ent's plant, and Is located on a main highway in the Akron, Ohio, area.
SAM WINER MOTORS, INC. 209
George Able immediately said because somebody said he was going to quit is
no reason for a man to be fired. Then, he stated that he was passing a paper
around for the union. I said, "Did you see the paper?" He said, "No." Mr.
Kloner spoke up and said that he didn't see why a union wanted to organize a
place such as they had out there. They had no mechanics in the place and also
said that, "I don't intend to travel all over the world and buy different machinery
and items and not make money on them. And before we have a union here
and pay more money out to these people, we will close the place down."
As indicated above Offfaus' testimony regarding what transpired at the meeting in
question was corroborated by that of Able. However Able's testimony is more
detailed as to what President Kloner said about the "kind of people" that worked
for the Respondent. As the Trial Examiner sees it Kloner's statements in this regard
were for the purpose of persuading the Union to abandon its organizational efforts
among the Respondent's employees. Since this testimony likewise goes to the Trial
Examiner's ultimate findings regarding the issues herein the following pertinent ex-
cerpt from Able's testimony is likewise inserted hereinbelow:
Q. Was there any discussion that took place on this occasion about unions
in general?
A. Yes.
Q. And would you relate what was said and who said it, please?
A. Well, it was more of a discussion. I know that Mr. Kloner said we didn't
want, or that he could see why we wanted to represent the kind of people
he had in the shops. They were floaters.
Mr. BELDEN: Floaters?
The WITNESS: Floaters. They were not mechanics and they just weren't the
type of people we would be interested in. We said, well, that would be up to
us to decide that. He said that if he had to have a union in there he would just
close up that part of the operation. He wasn't going to fly all of the way
around the world and spend all of his time to hand out the money to other
people. He had saw other businesses put out of business by unions and he
guessed that is what would happen there.
That the Respondent was perturbed by the possibilities of its employees selecting
an "outside union" as their representative for the purposes of collective bargaining,
is clearly evidenced by what happened on Thursday afternoon, January 11, 1962,
The record clearly shows that Foreman Fairhurst went around the plant and
instructed the employees to attend a meeting in Vice President Winer's office "upstairs
at 4:45 p.m." What transpired at the meeting is found in the testimony of several
of the witnesses who testified at the hearing herein. Their testimony in this regard
stands uncontradicted and undenied in the record. After considering the entire record,
the Trial Examiner is convinced that the best account of what transpired at this
important meeting is found in the following excerpt from the testimony of the witness
Tracy Warden, Jr.,22 which is fully credited:
Q. What did he say?
A. He said that when he started in the business out there that they didn't
have a union then. He didn't need a union to tell him how to run his business.
He said he would cut down the work three days a week to keep the men from
drawing unemployment and sell everything for scrap to sell for junk. He cited
an example of a company that the people tried to get a union in. The people
locked the doors and never opened up since. He gave that as an example of
what would happen to us.
Q. Did he say why he would cut it up to scrap?
A. He said he would cut it up to scrap to keep from getting a union in there.
A few days after the above meeting, certain employees of the Respondent includ'^
ing "Junior" Rickenbacker, with the knowledge of and "acquiesence" of the Respond-
ent, circulated a petition among the employees. The purpose of the petition and
the circumstances surrounding its circulation is set forth in the following stipula-
tion of the parties at the hearing herein:
Mr. HUNSAKER: Mr. Examiner, I would like to propose the following stipu-
lation. The following stipulation was discussed between the parties during
the off-the-record conversation and is as follows: It is hereby stipulated and
agreed to by all parties to this proceeding as follows. During the month of
January, 1962, an employee or employees of the Respondent in this case on
the company premises and during working hours circulated and obtained sig-
22 See supra . In passing the Trial Examiner desires to point out that Warden refused,
to sign the "paper" referred to herein.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
natures for and on a document or documents for the purpose of eliciting support
for a company union of Sam Winer Motors , Inc. Further, such solicitation
or circulation was done with the full knowledge and acquiescence of the
Respondent.
Mr. BELDEN : On or about January 21.
TRIAL EXAMINER: Is that satisfactory?
Mr. HUNSAKER' That is satisfactory.
TRIAL EXAMINER: Do you join?
Mr. BELDEN: Yes.
TRIAL EXAMINER : So stipulated.
At the hearing herein the parties also stipulated concerning a representation
petition filed by the Charging Union herein on January 15, 1962.
On January 15, 1962, International Association of Machinists , Lodge 762,
AFL-CIO filed a representation petition in Case No. 8-RC-4593 in which it
sought representation of the mechanics , bodymen, painters , welders and
apprentices of the Employer , Sam Winer Motors, Inc., on March 9, 1962,
pursuant to a stipulation for certification upon consent election entered into
by the Employer , the International Association of Machinists , Lodge 762,
AFL-CIO, and Company Union of Sam Winer Motors, Inc., the Intervenor
therein, on February 27, 1962, a representation election was conducted. On
March 16, 1962 the Regional Director of the Eighth Regional Office of National
Labor Relations Board certified the Intervenor, Company Union of Sam Winer
Motors, Inc., as bargaining representative of the Employer 's employees. As
a result of said election , wherein the vote was as follows: 10 for the Company
Union of Sam Winer Motors; 9 for International Association of Machinists,
Lodge 762, AFL-CIO.
Mr. BELDEN: I have no objection.
TRIAL EXAMINER: Do you join in the stipulation as stated?
Mr. BELDEN : 3 will agree to it, yes.
TRIAL EXAMINER: Very well, how about you Mr. Able?
Mr. ABLE: I agree, yes.
TRIAL EXAMINER : Very well. So stipulated.
Insofar as the Trial Examiner is concerned the foregoing constitute the relevant
facts regarding the issues herein.
Conclusions and Overall Findings of Facts
From all of the foregoing the Trial Examiner is convinced and finds that the
Respondent discharged Clarence J. Cingle on January 8 , 1962, because he had
engaged in union and /or concerted activities for the purposes of collective bargain-
ing or mutual aid and protection , in violation of Section 8(a)(3) and ( 1) of the
Act. His reasoning in this regard will be discussed below.
Here, as in all cases of this nature , the primary issue before us is this , what was
the true motive for the Respondent 's discharge of Clarence J. Cingle on January
8, 1962? In the Trial Examiner 's opinion , the answer to this question lies in the
record itself when considered as a whole Let us first consider the following facts
that are indisputable, and which have been most persuasive to the Trial Examiner
in reaching his ultimate findings as to Cingle The record clearly shows that
Fairhurst. within less than an hour after he was informed by McCullough that
Cingle was passing around a "paper" for an "outside union," went among the
Respondent 's employees and queried them about it. Typical of his conduct in
this regard is found, not only in his own testimony, but in that of "Old Ish" Harwell,
and other employees as well all of which has been discussed and disposed of at great
length above. Then, his remarks to Cingle at the time he discharged him, to the
effect that it was the passing of the "paper" that was the primary reason for his
discharge "as of 3:00 o'clock" on January 8, 1962 A further persuasive incident
is found in the uncontradicted, undemed, and credible testimony of Able and Offaus
as regards Kloner's and Fairhurst 's statements about Cingle during the course of
their conversation on January 9, 1962. Such as their ieference to Fairhurst's
remarks concerning the reasons for discharging Cingle, that ". . he was passing
the paper around to get signatures to see who wanted to join the union, on company
property. I can't let him use company time to do this " 23 Other persuasive testi-
mony is found in that of several employees who were interrogated by Fairhurst
after Cingle was fired. Particularly Hollinger, Spence, and Rickenbacker. Typical
of his remarks to the employees is found in the testimony of Hollinger, which was
''a See tinfia In re the Trial Examiner's findings as to the purported " no-solicitation"
rule.
SAM WINER MOTORS, INC. 211
to the effect that Fairhurst told him that Cingle had "gone down the road" for
passing around the "paper," which phrase the Trial Examiner infers and finds
meant "discharge "; and that Hollinger likewise so interpreted it. Similar phrase-
ology was also used by Fairhurst in his interrogation of Rickenbacker about Cingle's
role in the "paper" incident whom he informed in the course of his interrogation
that "we just fired Joe (Singleton ) Cingle you know. Sam said anybody that had
anything to do with the passing of that paper around to pass them , too," 24 which the
Trial Examiner likewise infers and finds meant that Cingle was discharged for
passing the "paper" around , and that the phrase to "pass them too" referred to those
like Rickenbacker who had been engaged in the same concerted activities clearly
such statements by Fairhurst were coercive on their face , and violative of Section
8(a) (1) of the Act, and the Trial Examiner so finds.
When all of the above are considered in the light of the Respondent 's conduct
after Cingle was fired, such as its promulgation of a "Company Union" to forestall
any further efforts of its employees to concertedly exercise their rights under the
Act; the threats of Kloner and Winer to their employees that they would either
reduce their workweek to 3 days so that they would be ineligible for "unemploy-
ment compensation " or in the alternative close the plant up and sell it for scrap,
if they were successful in their efforts to exercise their rights under the Act, are
so obviously violative of Section 8 (a) (1) of the Act that the Trial Examiner deems
further comment unnecessary.
When the issue as to Cingle is considered in the light of the incidents discussed
and disposed of above the Trial Examiner is thoroughly convinced that the numerous
defenses raised by the Respondent to justify its discharge of Cingle are mere pre-
text and that the sole reason for his discharge was because he had the effrontery
to exercise his rights under the Act and engage in "concerted" activities among
its employees , and he so finds.
The Trial Examiner has considered the fact that Cingle was of a "belligerent"
nature,25 but it must be borne in mind that the Respondent was well aware of his
shortcomings in this regard for several weeks before they discharged him, and
took no action , disciplinary or otherwise , to correct the situation , which it could
have done , by discharging him either at the time of the motor room incident or
after it became aware of his tendency to be "belligerent ." It must be borne in
mind that both Fairhurst and Sam Winer testified on direct examination that they
were warned of Cingle's tendencies to be "belligerent" by some of his former
employers , such as Art Winer, and others who saw Cingle on their visits to the
Respondent 's plant during times material herein . In the circumstances , the Trial
Examiner is convinced that the Respondent 's contentions in this regard are not
only pretentious but meaningless when considered in the light of the fact that the
Respondent considered him an excellent mechanic at all times material herein
That is, the Respondent by the testimony of its own witnesses , particularly Fairhurst,
has convinced the Trial Examiner that absent the "paper" incident, Cingle despite
his shortcomings would not only still be in the Respondent 's employ, but that it
would consider it a boon to have him in its service , when considered in the light
of the testimony of Fairhurst and Kloner as to the "type" of "floaters " it had in its
shop at times material herein 26 and, finally, the Trial Examiner is convinced that
Fairhurst summed it up when he admitted in substance to the Trial Examiner that
the "paper incident" was the "straw that broke the camel's back," which the Trial
Examiner also infers and finds that absent Cingle 's distribution of the "paper" he
would never have been discharged.
Now as to the Respondent 's contention that it " . did not discharge Cingle, it
merely accelerated a future resignation date set by Cingle himself ." 27 To the
Trial Examiner the phrase "accelerated" has a peculiar ring about it, because it
sums up what Fairhurst was trying to say in his testimony as regards Cingle's "back
to school" resignation The Trial Examiner has devoted considerable time to this
defense of the Respondent , and has discussed it at considerable length above, and
though he sees no necessity for reiterating his reasons for rejecting the Respond-
ent's contentions in this regard , he does feel that it merits further comment below
After all the folderol of Fairhurst 's loquacious testimony in this regard, the fact
remains that the decision to "accelerate" Cingle's so-called resignation to "go back
to school," was made within an hour after Fairhurst learned that he had been
passing around the paper. The record contains no evidence that either Fairhurst
ri "Srim" refers to the Respondent's vice president, Sam Winer.
26 See supra for the Trial Examiner's comments in this regard
See supra in re Fairhurst and Kloner 's remarks to Offaus and Able on January 9, 1962
Quotes from Respondent 's brief
662358-63-vol 138-15
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or any other member of management discussed the "acceleration" idea with Cingle
before he was discharged. To the Trial Examiner at least, the Respondent's con-
tentions in this regard is mere nonsense. Though the Trial Examiner has found
above that Cingle had discussed with his coworkers the possibility that he might
take advantage of his rights under the Veterans' Act in this regard, the Trial
Examiner is convinced and reaffirms his findings above that he at no time tendered
his resignation to Fairhurst for that purpose. Further evidence that Cingle had no
intention of "going to school" is his testimony on cross-examination that he was
working as a mechanic at the time of the hearing herein.
Assuming arguendo that Cingle did formally tender his resignation as of January
20, 1962, then why did the Respondent "move it up," so to speak, to 3 p.m., January
8, 1962, without previous warning or discussion with Cingle as to its intentions in
this regard? The answer of course lies in the record as a whole. In the circum-
stances, the Trial Examiner would still find that the "acceleration," upon this assumed
factual situation; was likewise violative of the Act for the same reasons he has
set forth above as regards its other defenses, to wit, pretext, and that the real motive
for its discharge, accelerated or otherwise, of Cingle was because he engaged in
"concerted and/or union activities," and hence its conduct on the assumed set of
facts in this regard was violative of Section 8(a)(3) and (1) of the Act.
There yet remains the final disposition of the independent 8(a)( I) allegations in
the complaint.
The Trial Examiner has discussed and disposed of some few above, and will not
specifically refer to them in this section of the report. For the most part they stem
from the activities of Winer and Kloner in "setting up" the company union, and
in particular their remarks and warnings to the employees at the meeting in Winer's
office on the afternoon of January 12, 1962. Since the remarks, which for the
most part are outright threats of reprisal against the employees, individually and
collectively if they attempted to exercise their rights under the Act, the Trial
Examiner sees no necessity to reiterate them in this section of the report. Suffice
it to say at this time that such threats of reprisal against one's employees for
exercising their rights under the Act constitute interference, restraint, and coercion,
and hence are violative of Section 8(a)(1) of the Act, and the Trial Examiner so
finds.
Though the Trial Examiner sees no necessity for further comment herein, he does
feel that he should point out to all concerned that the threats of reprisal we are
concerned with herein are not merely words and phrases, when considered in the
light of the record as a whole. Here we have the actual discharge of an employee,
Cingle, as an example of what the Respondent meant to convey to its employees
if they to attempted to exercise their rights under the Act. In other words there is
more at issue herein than Cingle, it is the rights of other employees as well to
exercise their statutory rights without fear of reprisal, such as was meted out to Cingle.
Though the record shows that Cingle passed around the "paper" to some of the
employees while they were working, the Trial Examiner is convinced that his ac-
tivities in this regard caused no interruption or by any stretch of the imagination
interfered with its production schedule. Since there is some reference in the record
as to "passing the paper" around to the employees on company time and property
the Trial Examiner feels that he should dispose of the Respondent's contention as
regards its so-called "no-solicitation" rule, as a further defense to the discharge of
Cingle. Quite frankly the testimony in the record in this regard is most meager.
According to the record, the rule in this regard, if any, applied Ito solicitation for funds
among its employees during working hours for the "Red Cross," "Community Chest"
drives, and similar organizations. There is no substantial evidence in this record that
the Respondent had any posted notices as regards its employees engaging in solicita-
tion among themselves. Quite frankly the Trial Examiner is convinced that the
Respondent never thought of the no-solicitation rule as a defense until after it had
discharged Cingle. The phrases "company time and property" and the like, such as
Fairhurst used in the course of his testimony at the hearing herein are "legalistic"
in origin and usage, where he picked them up, so to speak, is of no concern to the
Trial Examiner and he deems further comment in this regard unnecessary. Suffice
it to say that he is convinced that this defense of the Respondent is without merit,
and he so finds.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations 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 commerce
and the free flow of commerce.
SAM WINER MOTORS, INC. 213
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, it
will be recommended that the Respondent cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent unlawfully discruninated with regard to the
hire and tenure of employment of Clarence J. Cingle. It will therefore be recom-
mended that the Respondent offer him immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of pay he may have suffered
by reason of such discrimination, by payment to him of a sum of money equal to
that which he normally would have earned as wages from the date of his discharge
to the date of the Respondent's offer of reinstatement, less his net earnings during
that period, such sum to be computed in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289-294.
As the unfair labor practices found above evince a studied intent to thwart the
rights of employees in freely selecting their collective-bargaining representative, a
broad 8(a) (1) cease-and-desist order will be recommended.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Clarence
J. Cingle, thereby discouraging membership in the Union, the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, the Respondent has engaged 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 affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is
recommended that the Respondent, Sam Winer Motors, Inc., its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or in any other labor organization of
its employees, by discharging its employees or by discriminating in any other man-
ner in regard to their hire or tenure of employment or any term or condition of
employment.
(b) Threatening employees with discharge or other economic reprisal if they
join, retain membership in, or engage in activity on behalf of the Union, or any
other labor organization of its employees; and/or interrogating employees as to their
union membership, activities, or desires, or as to the union membership and ac-
tivities of other employees, in a manner constituting interference, restraint, or coercion
in violation of Section 8 (a) (1) of the Act.
(c) In any other manner interfering with, restraining , or coercing its employees
in their right to self-organization, to form labor organizations, to join or assist the
Union, or any other labor organization, to bargain collectively through representatives
of their own choosing , and to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as authorized in Section 8(a)(3) of
the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer Clarence J. Cingle immediate and full reinstatement to the position he
held at the time he was discharged, or an equivalent position, without prejudice to
his seniority and other rights and privileges, and make him whole for any loss of
pay he may have suffered as a result of the discrimination against him in the manner
set forth above in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Recommended Order.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its plant at Akron, Ohio, copies of the notice attached hereto marked
"Appendix." 28 Copies of said notice, to be furnished by the Regional Director for
the Eighth Region, Cleveland, Ohio, shall, after being duly signed by a representative
of the Respondent, be posted by the Respondent immediately upon receipt thereof,
and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Eighth Region, in writing, within 20 days
from the date of the receipt of this Intermediate Report and Recommended Order,
what steps the Respondent has taken to comply herewith.29
21 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice . In the further event that the Board ' s Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
ra In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act , we hereby notify our employees that:
WE WILL NOT discourage membership in International Association of Ma-
chinists , Lodge 762, AFL-CIO, or any other labor organization of our em-
ployees, by discharging or otherwise discriminating against any employee
in regard to his hire, tenure of employment , or any term or condition of
employment.
WE WILL NOT threaten our employees with discharge or other economic
reprisal if they join , retain membership in, or engage in activity on behalf of
the Union , or any other labor organization of our employees.
WE WILL NOT interrogate our employees as to their union membership, ac-
tivities , or desires , or as to the union membership and activities of other em-
ployees, in a manner constituting inference , restraint , or coercion in violation of
Section 8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of the right to self-organization , to form labor or-
ganizations , to join or assist the above -named Union or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, and
to engage in collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities , except to the extent that such right may
be affected by an agreement requiring membership in a labor organization as
authorized by the National Labor Relations Act.
WE WILL offer Clarence J. Cingle immediate and full reinstatement to the
position he formerly held, or its equivalent , without prejudice to his seniority or
other rights and privileges , and make him whole for any loss of pay he may
have suffered as a result of the discrimination against him.
SAM WINER MOTORS, INC.,
Employer.
Dated------------------- By--------- ---------------------------------(Representative ) ( Title)
NOTE: We will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 720
Bulkley Building , 1501 Euclid Avenue, Cleveland, Ohio, Telephone Number, Main
1-4465, if they have questions concerning this notice or compliance with its pro-
visions.