Victory Retreaders & Vulcanizers, Inc.

National Labor Relations Board - Board Decisions

Jul 10, 1944

57 N.L.R.B. 147 (N.L.R.B. 1944)

In the Matter of VICTORY RETREADERS &- VULCA NIZERS, INC. dnd'TIRE, ,
BAYIERY, AuzoirorIvE PARTS & ACCESSORIES EMPLOYEES UNION
LOCAL 21082, AFL
Case No. 9-C--Z186.-Decided July 10, 1944
DECISION
AND
ORDER
On February 29, 1944, the Trial Examiner issued his Intermediate
Report in the, above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of'Section 8 (1) of the Act and recommending that
it cease and desist.therefrom and take certain affirmative action, as set
forth in the copy of•th e Intermediate Report anne^.ed hereto. The
Trial Examiner' also found that the respondent had,not engaged in
unfair labor practices within the meaning of Section 8 (3) and (5)
of the Act, as alleged in the complaint,'and recommended that the
complaint be dismissed with respect. thereto. Thereafter, the respond-
ent and counsel for the Board each filed exceptions to the Intermediate
Report and,briefs. Oral argument was not requested," and was not
held. The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was conmmitted. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
briefs and exceptions of the respondent and of- counsel for the Board:
and the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10' (c) of
the National Labor Relations Act, the National Labor Relations Board
hereby orders that the respondent, Victory Retreaders & Vulcanizers,
Inc., New York City, its officers, agents, successors, and assigns shall :
1. Cease and desist from :
In any maner -interfering with, restraining, or coercing its eniployeess
in the exercise of the right to self-organization , to form , labor organ-
izations ,'to join or assist Tire, Battery, Automotive Parts &Accessories•
Employees Union, Local 21082, AFL, or any other' labor organization?
57 N L. R B, No: 28
1 47
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection as guaranteed in Section 7 of
the Act.
2. Take the following affirmative action which the'Board finds will
effectuate the policies of the Act:
'(a) Post immediately in conspicuous places in its plant in New York
City and maintain for a period of at least sixty (60) consecutive days
from the date of posting, notices to all employees stating that the re-
spondent will not engage in the conduct from which it is ordered to
cease and desist in paragraph 1 of this Order;
(b) Notify the Regional Director for the Second Region, in writing
within ten' (10) days from the date of this ,Order what steps the re-
spondent has taken to comply herewith.
IT IS FURTHER ORDE11FD that the complaint be, and it hereby is, dis-
missed insofar as it alleges (1) that the respondent discriminated with
respect to hire or tenure of employment or 'any term or condition of
employment within the meaning of Section 8 (3) of the Act; and (2)
that the respondent refused to bargain collectively within the meaning
of Section 8 (5) of the Act. ,
INTERMEDIATE REPORT
Richard J. Hickey, Esq, of New York City, for the Board.
Robert H. Stanlea, 160 Fifth Ave., New York City; for the Union.
Aaron Solomon, Esq., of Solomon, Schein & Sheldon, 1450 Broadway, New York
City, for the respondent.
` STATEMENT OF THE CASE
Upon a second amended charge filed January 7, 1944, by Tire, Battery, Auto-
motive Parts and Accessories Employees Union, Local,21082, A. F. of L., herein
cal ed the Union, the National Labor Relations Board, herein called the Board,
by its Regional Director for the Second Region (New York City, New York)',
issued, its complaint dated January 10,' 1944 against Victory Retreaders and
Vulcanizers , Inc., herein called the respondent , alleging that the respondent at
its plant in the City of New York, State of New York, had engaged in and is
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (1), (3) and (5) and Section 2 (6) and (7) of the National Labor Re-
lations Act, 49 Stat. 449, herein called ,the Act. Copies of the complaint and
amended,charge accompanied by notice of hearing thereon were duly served upon
the, respondent and the Union.
With respect to unfair labor practices , the complaint alleges: ( 1) that on or'
about May 28, 1943, the respondent discharged Michael Lovett, Thomas Brennan, _
and John Lander, and since that date has failed and refused to reinstate them
to their former or substantially equivalent employments , for the reason that
,they joined or assisted the Union or engaged in other concerted activities for the
purposes of collective bargaining or other mutual aid or protection ; ( 2) that all
the employees of the respondent employed at its plant in New York City, exclusive
of clerical and • supervisory employees , constitute a unit appropriate for the
purposes of collective bargaining , that on or about May 26, 1943, a majority of
VICTORY RETREADERS &- VULCANIZERS' INC. 149
1 ,
the employees in such unit designated the Union as their representative for
purposes of collective bargaining, and that on or about May 28, 1943, the Union
requested the respondent to bargain with it with respect to rates of pay, wages,
hours of employment, ,or other conditions of employment, as the exclusive, repre-
sentative of all the, employees in the unit above described, but that on such date
and at all times thereafter the respondent has refused and continues to refuse
to bargain collectively with the Union as such representative; (3) that from on
or about May 26, 1943; up to the date of the complaint, the respondent has vilified,
disparaged, and expressed its disapproval of the Union ; has interrogated its
employees concerning their union affiliation ; has' urged, persuaded and warned
its employees to refrain-from assisting or becoming members of the Union; and
has threatened its employees with discharge or other reprisals if they joined or
assisted the Union.
The answer of the respondent denies all the allegations with respect to the
alleged unfair labor practices but admits the discharge of Michael Lovett, Thomas
Brannon, and John Lander on May 28, 1943, and states that these employees
were discharged for just cause.
Pursuant to due notice a heating was held on February 10 and 11, 1944, at
New York City, New York, before R. N. Denham, the undersigned Trial Examiner
duly, designated by the Chief Trial Examiner. At the hearing the Board and the
respondent were represented by counsel and the Union by its SecretaryTreas-
urer. All parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses and to introduce evidence bearing upon the issues. At
the conclusion of the presentation of evidence on behalf of the Board, a motion
by counsel for the Board to conform the pleadings to the proof was granted with-
out objection and made applicable to all pleadings for the correction of names,
dates and other minor matters not affecting the issues involved. At the con-
clusion of- the respondent's testimony, the motion of the respondent to conform
the pleadings to the proof was granted without objection and with the same limi-
tations. At the close of the taking of all testimony, counsel for the respondent
moved for the dismissal of the complaint for failure of proof. The motion was
taken under advisement and except as otherwise indicated in this report, is now
denied. Formal oral argument at the close of the hearing was waived by all
parties although there was an informal discussion between 'counsel for the Board,
counsel for the respondent and the Trial Examiner, covering certain matters
within the issues. This discussion is part of the record. Counsel for the •respond-
ent was allowed 7 days within which to file a brief with the Trial Examiner.
No brief has been received.
Upon the basis of the foregoing and after having heard and observed all the
witnesses and considered the exhibits admitted in evidence, and upon the entire
record made herein, the undersigned now makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Victory Retreaders and Vulcanizers, Inc., is and has been a New York corpora-
tion since February 1942. It maintains its principal place of business and sole
plant in New York City, where it engages in the business of vulcanizing, retread-
ing, and the sale and distribution of automobile tires. , In connection with, the
operation of its business , the respondent utilizes rubber and; other incidental
materials which in the past 18 months it has purchased to an amount in excess
of $75 ,000, of which more than 15 percent has been shipped to it from points out-
side the State of New York . During the same period the respondent has re-
:3450 DECISIONS-OF =NATIONAL LABOR RELATIONS -.BOARD
treaded automobile tires and performed other similar services of total value of,
more'than $75,000 and has transported tires so-processecl'to points outside ' 'the
State of New York to the extent of more than 25 percent of its total production.
The respondent admits that it is engaged in commerce within the meaning of the',
Act.
i
II.`THR LABOR ORGANIZATION INVOLVED
Tire, Battery, Automotive Parts & Accessories ;Employees Union, Local 21082,
A. F., of L., is a' labor organization admitting to membership the employees of
-the respondent. .
The respondent engages in a wholesale and- retail business of retreading,
recapping, and vulcanizing used automobile tires for truck and passenger car
service This process involves vulcanizing tires where the fabric or carcass is
broken and thereafter grinding down the surface of the tire to be retieaded or
recapped, applying the material which is to make up the new tread or cap and
then placing the tire in a hot mold where it is kept for an hour, after which it is
removed This completes the process There are some five or six steps in the
process of thus reconditioning an automobile tire The work is arduous. and is
carried on under high temperatures. It is also integrated so that an interruption
in one step interfers with the entire line of production Normal employment
is about 12 persons, of whom 2 are the superintendent and foreman, respectively,
the others being ordinary production workers or truckdrivers who pick up and
deliver the tires upon which the respondent performs its service On May 26,
1943, there were nine persons employed in the production, maintenance and
delivery work of the respondent, other than the superintendent and the foreman.
On or about May 24, 1943, Theodore Bernard, a mold operator, got in touch
with a representative of the Union and obtained a number of membership applica-
tion cards from him. These were distributed among the employees who showed
an interest in the union organization and as a result, by the morning of May 26,
1943, five signed cards, including his own, were in Bernard's possession.
During the morning of May 26, Bernard got word to Robert 1\I Stanlea,,the
Union's secretary and organizer, that he had the cards and requested him to come
and get them during the lunch period. At noon he delivered the cards to Stanlea
at a nearby lunch room and bar' Within the next 24 hours Bernard obtained
2 more signatures and on May 27 turned those over to Stanlea. Of the seven -
cards, four bore dates May 25 or May 26 in the handwriting of the applicants
and three bore no,date originally Each of these had the date, "May 26" inserted
in' Stanlea's handwriting. Stanlea 'stated he made these entries upon receiving
the cards on that date. Although the authenticity of the signatures is not
questioned, there is conflict in-the testimony as to whether all the cards were
placed in the hands of Stanlea, on or before May 26. He testified that he received
them all on the occasion of his first call on Bernard at noon on May 26. On the
other hand Bernard testified that he gave Stanlea only five of the cards on May 26
and that on the following day he obtained the two -remaining cards, signed
respectively by John Tracy and Steve Yernieny. All the cards, however, were
identified by credible testimony as having been in existence and in the possession
of Stanlea not later than May 28, and it is now found that they were' in fact
executed by the persons whose names appear thereon and placed in Stanlea's,
possession on or before May 28, 1943.
ILI THE ALLEGED UNFAIR LABOR PRACI.ICFS
'The lunch room and bar is next door tothe plant and hereafter will be referred to as
the bar.
VICTORY RETREADERS & VULCANIZERS, INC. 151
in May 1943, the operations of the respondent were being carried on by two
shifts, each of which worked 12 hours, beginning at 8 o'clock it. in. and 8 o'clock
p. in. respectively. John Tracy, a mold operator, and two others' constituted
the night shift, working without direct supervision. Bernard, with Michael
Lovett as'helper, operated the molds in the day shift. John Lander and Meyer
Alper operated the two trucks of the respondent during the day shift hours,
picking up tires to be retreaded and delivering the finished tires, and also did
'odd jobs in the plant when they were not actually engaged on their trucks. Louis
Mushlin acted as watchman and also did numerous odd jobs around the plant.
He usually came to the plant an hour or so before the day shift carne on duty
at 8 o'clock, opened up the office which is on the ground floor and remained on
duty in the office or at the front door until 9 o'clock when he took up his production
work on the second floor of the plant Alper and llushlin were the only employees
who did not sign application cards authorizing the Union to represent them 2
When Stanlea received the application cards from Bernard on May 26, he went
Immediately to the plant, and met Morris Libman, the plant superintendent,
who-is one of the stockholders in the respondent corporation. Stanlea introduced
himself to Libman and asked to see "the boss " He was told that the member
of the firm who would handle matters pertaining to labor relations was Jack
Nelson ; that Nelson came to the plant every Tuesday and Friday afternoon and
that if he wanted to see Nelson he could do so by calling at the plant the following
Friday, May 28 at about 2 • 30 p. in
`Early in the after noon of May 26, after Bernard had given Stanlea the cards
and had returned to his work, Emanuel Graniaglia, the shop foreman, who is
generally referred to throughout the record as "Al," approached Bernard and
asked him 'Who it was he had been talking to during the lunch hour, referring to
the person as a "racketeer." Bernard told him it was a union representative.
Gramaglia then questioned Bernard about the union activities in the shop and
particularly about his own membership in the Union. A little later Graniaglia
approached Thomas Brennan who was working on the other side of the room
and asked him about the Union. After Brennan had told him that he had joined
the Union, they engaged in a discussion concerning the costs and possible benefits
of union membership. Gramaglia continued his inquiries among most of the
men,'but there is no evidence that he threatened auy of them or did anything
more than to inquire whether they had joined Most of them answered him in
the aflirniatiNe
On the morning of MaN 28, 1943, Gr:unaglia arrived at about 7:'30 and began
laying 'out plans for a rather heavy day's work Bernard came in before 8
o'clock, as did John Lander. the track driver When Lovett, Bernard's helper,
did not show up at 8 o'clock, Graniaglia helped Bernard get his molds in opera-
tion and also assisted Lander in getting a large delivery ready to take out.
Although the tardiness of Lovett and Brennan discommoded Graniaglia in get-
ting the p'-ant in operation, he did no more than comment critically on it since
these two men, who lived near each other, frequently were a few minutes late'
At about 8: 10, Lander took a large tire down stairs and placed it in the truck,
2 There was some testimony to indicate that possibly Yernieny's signature was obtained
by coercion or duress The Trial Examiner invited counsel for the Company to pursue this
subject but his suggestions were not followed, and in view of other testimony indicating
that Yernieny's signature was obtained in regular course and without coercion, his applica-
tion is herein regarded as one which was executed in regular course and represented his
free choice of a collective bargaining representative
"Concerning tatdiness, Gramaglia testified without contradiction, that the amen were not
docked for tardiness unless they came in after about 8 20 On such occasions, lie started
their time as at 8 : 30, but for shorter periods of lateness made no deductions.
152 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
after which he went to the nearby bar to buy a cigar. There he found Brennan
and Lovett who-had been in the bar since before 8 o'clock. In getting to the
place, they- had passed by the office and were seen doing- so by Mushlin. Lander,
joined Brennan,and Lovett who explained to him that since they were already
late, they intended to wait until 8:'30 before reporting for work because they
expected to be docked for 30 minutes of time,in any event. By 8: 30,-Lander had
not returned and Gramaglia went in search of him He inquired of Mushlin
whether he had seen Lander and was told that after Lander put the tire in the
truck, he had gone into the bar and was still there. Mushlin also volunteered
the information that Brennan and Lovett had walked past the office at about
8 o'clock and gone into the bar. Gramaglia, followed by Mushlin, went to, the,
front door of the bar,'found Lovett, Brennan and Lander standing at the end of
the counter near- the open door drinking beer, and beckoned to them to come
to the door. Lovett responded. When he reached the door, Gramaglia, in a
voice loud enough to be heard by-all three of the men, asked why they were
,in there drinking beer at that time of day instead of being in on the job. To this
Lovett replied, "Aw, don't get your bowels upset." , The others said nothing.
Gramaglia, who admitted that he was "burned up" by this conduct, told the
men that this was no time to be there drinking beer and directed them to get
into the shop and at work. To this, Lovett replied, "Go to hell !" and turned
around to rejoin his companions who still said nothing nor made any move to
leave the bar.' Gramaglia, whose working schedule had been disrupted by the
absence of the men, replied, in effect, "If you fellow$ feel that way about it, you're
through; you can stay here and drink all the beer you want and wait until Moe
(Morris Libman) comes." Gramaglia regarded this as a discharge and returned
to the plant office.
When Libman came to the plant at about 9: 30 a. in. Gramaglia reported that
he had discharged Brennan, Lovett and Lander because of their unauthorized
absence from the plant and the attitude they took when he asked them to come .
into work. Libman approved his actions although, both expressed regret that
-Lander had not returned. Shortly after this conversation Lander appeared at
the office, demanded his pay, and announced that the Union would take care of
them. Libman told him to come back at about 2 :00 or 2: 30 in the afternoon -
when Jack Nelson,•would be at the shop with the regular Friday pay roll and
would liay him off. In the meantime Lander, Brennan and Lovett had, telephoned
Stanlea about their discharge. Stanlea and one LaGuardia, also a union rep-
resentative, immediately came to the bar where they met the discharged men
and, after discussing the, discharges, went to the plant office, demanded' of
Libman'to know why the men had been discharged, and accused Libman of having
discharged them because of union activities Libman stated that he did not dis-
charge the men but that they had been discharged by the foreman Al Gramaglia.
During this conversation, Gramaglia was either called or came into the office -
and was asked by Stanlea to put the men back to work. His reply, in effect, was
"I wouldn't hire those rummies if they were the last men on ea:rth.]' A little
later,Stanlea and LaGuardia returned to the office and asked Libman to have
Gramaglia go with them to the saloon and 'discuss the discharges face to fate
'* There is sharp conflict in the testimony as to whether the men were drinking beer or
coffee. Without analyzing this conflict, it is found that they were, in fact, standing at the
bar with partially filled beer glasses before them when the above conversations took place„
,And that testimony of Lander and' Lovett 'to the contrary is not to be credited. It is also
to be noted that on two or three other occasions , Gramaglia- had discharged Brennan for
reporting at work in an intoxicated condition and that each time Libman had rehired him
on pleas of Brennan's wife. ,
VICTORY RETREADERS & VULCANIZERS, INC. 153
with the men.- Gramaglia did as requested and met with, Stanlea, -LaGuardia,
Brennan, Lovett, and Lander.
The conversation was a general one, sometimes rather heated Stanlea asked
whether the men had been discharged because of their union activities. Gramaglia
assured him they had not. Stanlea also risked Gramaglia whether he would take,
them back to work and was told thdt the matter was entirely up to Libman.
Gramaglia reviewed the incident, told them of his anger at Brennan and Lovett
for, going by the shop without reporting for work and criticized all of them
for neglecting the work when there was a heavy day of operations scheduled.
He expressed regret that Lander had participated but stated he could do nothing
further about it.' During the conversation, the men then demanded 'their,pay
but were told that during the. afternoon Nelson would be in and would settle with
them. That afternoon all three of the men were paid in full and have not been
since rehired at the plant. Lander obtained employment the next working day,
lost no time, and stated on the witness stand that he did not pare to return to
his former employment. Brennan is in the armed service of the United States
Lovett stated that he was without employment between May 28; 1943 and about
June 10, and that he I desires to return to his, former employment at the plant
of the respondent.
Although LaGuardia and Stanlea were advised that Nelson was, really the
last authority in the plant on matters pertaining to industrial relations, they
did not attempt to see him on the afternoon of Friday, May, 28, when, according
to the information they had received both from Libman and Gramaglia, he paid
his customary semi-weekly visit to the plant.
It was well known to Gramaglia that the,discharged men were members of,
the Union. At no time did he conceal the fact that he did not approve of the
Union and during his conversation with the dischargees and Stanlea and La-
Guardia on the morning of the 28th, stated that he did not care to have anything
to do with the Union and did not like it. ,
At the plant there is an unwritten law which forbids the individual workers
to leave their work during working hours to go out to the bar, or to other places
' for refreshments Instead, the respondent allows one of the men to take orders
twice a day for such refreshments as the men wish. He then goes out, gets what-
ever has been requested and delivers it to, the men in the plant. For this purpose,
a 15-minute rest period is allowed all employees each morning and afternoon. In
short, the men are expected to report at 8 o'clock and stay on the job at all times
except during the lunch period. This rule is recognized throughout the plant
and in the past has been observed' by all employees except Brennan who had
been caught several times by Gramaglia sneaking over the back way to visit
the bar during working hours. The presence of Brennan, Lovett and Lander in
the bar at 8: 30 was in conflict with the known working rules of the plant. The
work history of Brennan was especially unsatisfactory. That of Lovett, a
friend of Brennan for whom the latter had obtained employment at the plant,
was brief and also not wholly satisfactory. Lander's work history was not
criticized. Gramaglia and Libman admittedly regretted the necessity for dis-
charging him. But the failure of all three to indicate any affirmative response to
'Gramaglia's direction that they get to work and their apparent approval of
Lovett's,insol'ence was inexcusable. Whether they were drinking coffee or beer is
not material. Whether they were sober or intoxicated does not change the
issue. They 'were off duty without permission and contrary to the rules. They
were neglecting their work and must be said to have participated in- Lovett's
insolence and insubordination. There is•no' evidence that their union affilia-
tions or activities in any manner affected Gramaglia's decision to discharge them
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or his refusal to rehire them. It is accordingly found that such discharges
were for good and proper cause and without intent-to discriminate because of the
union activities of the discharged persons. -
The alleged refusal to bargain
The appropriate unit
It was agreed by all parties and is,heie found that all the employees at the re
-spondent's plant, exclusive of supervisory and clerical, constitute a unit that is
appropriate 'for collective bargaining purposes.
The Union's representation of a majority in the unit
On May 27, 1943, the Unit consisted of nine employees of whom seven were
represented by the Union. No additions were made to the unit at any of the
times that are pertinent herein. At no time between May 27, 1943 and June 1,
1943, inclusive, was the unit reduced to less than five persons and at no time were
there more than two persons employed who had not designated the Union for
purposes of collective bargaining It is therefore found that at :ill times pertinent
herein, the 'Union was the duly designated representative for purposes, of col-,
lective bargaining with respect to wages, hours, rates of pay and other conditions
of employment, of a majority of all the employees of the respondent in, the,,unit
heretofore found to be appropriate for purposes of collective bargaining
The alleged refusal to bargain
The complaint alleges a refusal by the respondent on May 28, to bargain with
the Union. The evidence discloses no support for this., On May 2b, Stanlea
called on Libman and was referred to Nelson who was available only on Tues-
days and Fridays. At that time, no demand was made for recognition or for
bargaining. On May 28, the deniands or conversations of Stanlea NNith Libman
had to do only with the reinstatement of Brennan, Lovett and Lander. If there
ever was a refusal to bargain, it occurred on Julie 1, when Stanlea and LaGuar-
dia called on Nelson. Stanlea, Libman and Nelson all testified concerning this
meeting and there is little conflict in their testimony The composite of the
recollections of these three witnesses is substantially the following:
Stanlea and LaGuardia called at the plant in the afternoon of Tuesday,, June
1st. Stanlea was the union's spr,kesman. After-introducing himself, he stated
that he was there to discuss a, union agreement and tire reinstatement-of the
three discharged employees. Nelson stated he would be glad to negotiate with
him if they would poll a vote of the employees any place-other than in' a beer
garden but that no matter what was done, the there discharged men would, not
be allowed to vote or in any other manner be regarded as employees He 'ex-
plained that the men had gone off the premises on company time, had disrupted
the schedules and had cost the company money by so doing; that they had been
properly discharged and would not be rehired.
There is no question but that the matter uppermost in the minds of all was
the question of the reinstatement of Brennan, Lovett and Lander At no time
did the union representative demand recognition or Nelson refinse it When,
during the early stages of the conversation, Stanlea stated that-the Union repre-
sented a majority of the emphiyees. Nelson neither agreed with this nor denied
it. When Stanlea threatened, to take the entire controversy to the Board, Nelson
stated he did not-know what the Union's rights were but if,the Board ordered
VICTORY- RETREADERS & VULCANIZERS, INC. 155
him to take any kind of action, lie would abide by the Board's order The conver-
sation rather quickly veered off into, the possibility of a strike and what each
side could or would do if a strike should take place and at that point, after telling
Nelson that they could paralyze the business with it strike. the union repre-
sentatives left. There were no subsequent conferences.- -
The record leaves the clear impression that the main objective of all con-
ferences by Stanlea with any representative of the respondent after,-the dis-
charges of May 28, was the reinstatement of the discharged employees. There
was no demand for recognition of the Union. -There was no proposal made by the
Union at any. stage,, and there was some sketchy conversation concerning an
election Under such circumstances, there having been no demand by the Union
that the respondent engage in collective, bargaining with it, there could have
been no refusal., We can only speculate on what Nelson would have done had
such a demand been clearly made. It is therefore found that the respondent
has not, at any time, on demand from the Union, refused to collectively bargain
with it as the representative of the employees in the appropriate unit in regard
to wages, hours, rates of pay or any other conditions of employment of the
employees in such unit.
Interference. restraint, and coercion
There is no credible evidence of interference, restraint, and coercion of any
of the employees by,-either Libman or Nelson. John Tracey, the mold operator
oh the night shift testified that on the evening of the 28th, he received,a telephone
message not to report for work that night but to come in at 8 o'clock the next
morning, Saturday a On reporting Saturday morning, Gramaglia told Tracey
he had discharged Brennan. Lovett and Lander the day before. He also men-
tioned that they were all members of the Union and asked Tracey whether he
belonged. Tracey avoided the question. Gramaglia then indicated that if
Tracey belonged to the Union. lie might waiit to join his discharged union brothers
but that otherwise he could go upstairs and to work. Tracey told Gramaglia that
he had once got into trouble with a Union by not going along with the others
and that now lie would "stick" with the men who had been discharged. 4U-
though Gramaglia then asked him to stay and work, Tracey refused to do so
but'got his current pay from Libman and joined Brennan, Lovett and Lander
who were again assembled at the nearby bar. When Libman paid Tracey, he
asked him not to leave the work but Tracey again, refused to return. The follow-
6 During-the meeting with Nelson-, according to Stanlea, Nelson referred to the existence
of a shop 'union. Gramaglia testified that there had been a shop organization which was
of the nature of a union, starting early in 1942 and continuing up to March 1943 when it
ceased to function because of loss of men to the armed forces ' Gramaglia was the shop
steward or "go-between" who conveyed to Nelson or Libman, such matters coining from
the employees as required attention These usually were wage increases which Gramaglia
recommended and obtained This case does not involve Section 8 (2) of the Act and appar-
ently the organization referred to is no longer in existence Gramaglia had entirely for-
gotten about it when talking to Stanlea and did not recall the subject until lie was called
Into the June 1'conference by Nelson and reminded of it. • This latter action was taken by
Nelson when Stanlea mentioned that Cramagha had denied all knowledge of, or belief in
unions in general
*Gramaglia testified, and his testimony is ciedited, that when the three men were dis-
charged on the 28th, it became necessary to discontinue the night shift for lack of per-
sonnel , that Bernard. the mold operator on the day shift had been laid off the afternoon
of the 2Sth, because he required a helper while Tracey could handle the molds alone and
they decided to put Tracey on the day shift mold operation and lay Bernard off until con-
ditions got better On' June 18, 1943, the respondent sent for, Bernard and put hint back
on his old job on June 14 These Is no charge that Bernard's layoff was discriminatory
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing week, when Tracey returned for the balance of his pay, Libman again asked
him to come back: He again refused. On June 13, Libman telegraphed Tracey,
requesting him to report for work. Tracey telephoned that he had a 'job' but
would call him later on He never did so and ,In the witness stand stated that he
is not a complainant and does not desire either reinstatement or back pay.'
-It was admitted by Gramaglia that he interrogated practically 'every than
in the shop with reference,to union membership and that he discussed the benefits
of the Union-with several of them and on occasion expressed disapproval of it
Aside from this and the Tracey incident, there is no substantial evidence of
anyone, acting on behalf of the respondent, having threatened, coerced, or ' at-
tempted to intimidate any of the employees s It is found, however, that by
interrogating' the various employees with respect to their membership in the
Union and by inviting Tracey to join his brothers in the Union who had been
discharged,, the respondent through its foreman Gramaglia' has interfered with,
restrained and coerced its employees in the exercise-of the iights guaranteed
them under Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, which have `
been found to have interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed them in Section 7 of the'Act, occurring
in connection 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 thereof.
V. THE REMEDY
It having been found that the respondent has engaged in certain unfair labor
practices it will be recommended that it cease and desist therefrom and take
affirmative action in order to effectuate the policies of the Act, by posting appro-
priate notices in its plant that it will not engage in the conduct from which it will'
be recommended that it cease and desist.
On the basis of the foregoing findings of fact and upon the entire record in the
case, the undersigned makes the following : '
CONCLUSIONS OF LAw
1. Tire, Battery, Automotive Parts and Accessories Employees Union, Local
21082, A. F. of L., is a labor 'organization within the ' meaning of Section, 2
(5) of the Act. ,
' Tracey testified that he considered himself discharged by Gramaglia's conversation.
The testimony of Gramaglia and Tracey covering. this incident differs only' in detail, 'but
it is found that while Tracey was not discharged, the effect of the conversation was-to im-
press Tracey with the fact that the discharged men were standing together- as union men ;
that Tracey might be impelled to join them;' and that If he were so inclined, he should
do so. Under such circumstances, Gramaglia's comments were coercive in character. -
s Witness Ramsey, a deaf mute, testified that, in an interchange of notes, Gramaglia
asked him whether he belonged to the Union and told him that if he joined he would' be
discharged.' This was specifically denied by Gramaglia The testimony was not' impressive
and is not credited. Similarly, testimony by Lander that, on May 27, Libman was riding
with him in his truck and asked him,whether he belonged to the Union, which was denied
Qiy Libman , is not credited. ' . '
VICTORY RETREADERS & VUhCANIZERS, INC. 157
2. By, discharging Thomas Brennan , Michael Lovett and Johh Lander on May
28, 1943, the respondent has engaged in no unfair labor practices within the mean-
ing of the Act.
3. Respondent has'not refused.to bargain collectively with Tire, Battery,'Auto-
motive Parts and Accessories Employees' Union, Local 21082, A. F. of L. 'as the
exclusive representative of all the employees within an appropriate unit of the
employees of the respondent, with regard to wages, hours, rates of pay, or other
conditions of employment, and has engaged in no unfair labor practice within the'
meaning of Section 8'(5) of the Act. 11
4. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
,5. The iafoi'esaid unfair labor practices are unfair labor practices affecting
comitierce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
On the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record, the undersigned recommends that the respondent, its officers.,
supervisors , representatives and assigns shall:
1. Cease and desist from :
Interfering with, restraining, or coercing its employees in the exercise of the
right to self-organization, to for"m,, join, or assist labor organ,z itions, to bargain
collectively through representatives of their own choosing and to engage in con-
certed activities for the purposes'of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the Act.
2. Take the ' following affirmative action which will effectuate the policies of
the Act : '
(a) Post immediately in conspicuous places in its plant in New York City and
maintain for a period of at least sixty (60) consecutive days from the date of post-
ing, notices to all employees that the respondent will not engage in the conduct
from which it is recommended that it cease and desist in paragraph 1 of these
recommendations ; _
(b) Notify the Regional Director for the Second Region in writing within ten
(10) days from the receipt of this Intermediate Report what steps the respondent
has taken to comply therewith.
It is also recommended that, unless on or before ten (10) days from the receipt
of this Intermediate Report the respondent notifies the Regional Director for the
Second Region in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respondent
to take such action:
It is further recommended that the complaint be dismissed insofar as it alleges,
(1) that any of the respondent's' employees have been discriminated against with
regard to their hire or tenure of employment or conditions of employment; (2)
that the respondent has refused to bargain with the Union as the exclusive repre-
sentative of any unit of its employees, and, (3) that the respondent has threatened
Its employees with discharge or other reprisals , if they joined or assisted the?
Union.
,As provided in Section '33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 26, 1943, any party
or counsel for the Board may within fifteen (15) days from the date of the entry
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the order transferring the case to the Board, pursuant to Section 32 of Article'
II of said Rules and Regulations, file with the Board, Rochambeau Budding,
Washington, D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon,•together with the original and four copies of a brief in,support thereof.
Immediately upon the filing of such statement or exceptions and/or brief, the
party or counsel for the Board filing the sane shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. As
further provided in said Section 33, should any party desire permission to argue
orally before the Board request therefor trust he made in writing to the Board
within ten (10) days from the date of the order transferring the case to the
Board.
R N DENHAM,
Trial Examiner
Dated February 25, 1944.
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