Albany Garage, Inc.

National Labor Relations Board - Board Decisions

Feb 3, 1960

126 N.L.R.B. 417 (N.L.R.B. 1960)

ALBANY GARAGE, INC. AND ALBANY MOTOR PARTS, INC. 417
Albany Garage , Inc. and Albany Motor Parts , Inc. and Lodge
No. 838, International Association of Machinists , AFL-CIO
and Local No . 895, International Brotherhood of Teamsters.
Case No. 2-CA-5777. Febmiary 3, 1960
DECISION AND ORDER
On March 4, 1959, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions
to the Intermediate Report and a supporting brief. The Charging
Unions filed exceptions to the Trial Examiner's Intermediate Report,
and the Respondents filed a brief to support the findings of the Inter-
mediate Report.
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 In-
termediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications.'
The Trial Examiner found, and we agree, that the Respondents did
not violate Section 8(a) (5) of the Act by their failure to furnish the
specific financial information which the Unions requested 2
Unlike the Trial Examiner we do not find it necessary to decide
whether the Respondents pleaded inadvisability or inability to pay
the wage increase which the Union was demanding. This is so be-
i We correct the following inadvertent and minor factual errors in the Intermediate
Report : (1) In the discussion entitled "Background," immediately before the heading
entitled "Bargaining and Strike," the facts should read : In 1955, Teamsters Local 294
was certified with Machinists Lodge 838 as joint representatives for the purposes of
collective bargaining of all the employees of Albany Garage In 1956 the jurisdiction of
Local 294 was transferred to Local 895 of the Teamsters, and in January 1957, Albany
Garage signed a joint collective-bargaining agreement with Local 838 of the Machinists
and Local 895 of the Teamsters Negotiations for a new contract between Albany Garage
and the Unions commenced during November 1957, and as of the early part of February
1958, the parties had engaged in several conferences regarding the negotiation of a
contract to cover the employees of Albany Garage and of Albany Motor Parts, (2) in the
discussion of the negotiating meeting of December 9, 1957, "a new corporation" should
read "a newly activated corporation "
2 The General Counsel contends that the strike would not have occurred except for the
Respondent,' refusal to give the information demanded or to grant the requested audit
of company records The Trial Examiner disposed of this contention on the ground that
to force the employers to submit to an audit was "too close to compulsory arbitration "
We do not adopt his remarks in this regard, nor do we find it necessary in the context
of the instant case to pass upon the issue of ichether a union may demand, or whether
an employer must submit to, an audit of its books, in view of our finding herein that
the Respondents in fact furnished sufficient information
126 NLRB No. 52.
554461-66-vol . 126-28
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause, in view of all the circumstances herein, we find that even if
the Respondents did assert inability to pay, the financial information 3
furnished by them was adequate to support their claim of such in-
ability' In this connection, we note especially that as soon as they
closed their books for the year ending December 31, 1957, the Respond-
ents voluntarily furnished the Unions with a financial statement for
that year, together with a comparative sales and profit statement for
the years 1956 and 1957; that no question was ever raised regarding
the actual accuracy of the financial information submitted to the
Unions; that the statements furnished were accepted as adequate by
the banks with which the Respondents did business, by the Bureau of
Internal Revenue, and by the Respondents' stockholders; that the
Respondents had furnished the Unions with the same type of infor-
mation during negotiations in preceding years, and there is no evi-
dence that the Unions had ever before rejected the information as
inadequate; that the Respondents, in refusing to grant the wage in-
crease, were relying to some extent on a forecast of a 30 percent
decrease in business in the automobile industry (which prediction
proved to be correct) ; and that the Respondents offered to include a
6-month wage reopener in a new contract in order to permit an early
review of wages and to determine if the picture at that time justified
an increase.
Accordingly, in the circumstances of this case, we find that the
information that was given the Unions was sufficient to establish that
the Respondents were bargaining in good faith 5
3 General Counsel 's Exhibit No 7.
4 N L R B. v Truitt Mfg Co., 351 U S. 149, 152-153.
5 NLRB v Truitt Mfg Co, supra
The Board in Truitt Mfg Co , 110 NLRB 856, defined the type of information to be
furnished as follows "On the other hand, it is settled law , that when an employer seeks
to justify the refusal of a wage increase upon an economic basis, as did the Respondent
herein , good faith bargaining under the Act requires that upon request the employer
attempt to substantiate its economic position by reasonable proof " [Emphasis supplied ]
The Fourth Circuit Court in N L R.B. v. Truitt Mfg Co., 224 F. 2d 869 , 874, in revers-
ing the Board , stated • "And we do not think that merely because the company has
objected to a proposed wage rate on the ground that it cannot afford to pay it, good
faith bargaining requires it to open up its books to the union in an effort to sustain the
ground that it has taken . If such were held to be the law, demand for examination of
books could be used as a club to force employers to agree to an unjustified wage rate
rather than disclose their financial condition with such confidential matters as manufac-
turing costs , which could conceivably be used to their great damage . To bargain in good
faith does not mean that the bargainer must substantiate by proof statements made by
him in the course of the bargaining . It means merely that he bargain with a sincere
desire to reach an agreement "
The Supreme Court in reversing the court of appeals and in affirming the Board
declared : "Good faith bargaining necessarily requires that claims made by either bar-
gainer should be honest claims This is true about an asserted inability to pay an increase
in wages. If such an argument is important enough to present in the give and take of
bargaining , it is important enough to require some sort of proof of its accuracy And it
would certainly not be farfetched for a trier of fact to reach the conclusion that bargaining
,lacks good faith when an employer mechanically repeats a claim of inability to pay
without making the slightest effort to substantiate the claim . . We do not hold,
however, that in every case in which economic inability is raised as an argument against
increased wages it automatically follows that the employees are entitled to substantiating
ALBANY GARAGE, INC. AND ALBANY MOTOR PARTS, INC. 419
We agree with the Trial Examiner that the Respondents' refusal,
subsequent to the strike, to accept the Unions' unconditional offer to
renew the prior collective-bargaining contract was not violative of
Section 8(a) (5).
In this connection, we note that the Respondents had bargained in
good faith prior to the strike. Thus, as hereinabove related, at the
fifth negotiating meeting on February 4, 1958, they demonstrated
their good faith by voluntarily offering financial information to sup-
port their denial of the proposed wage increase, which information
we have found adequate to substantiate a claim of inability to pay.
Also, at this meeting, the Respondent offered to renew the prior con-
tract with a wage reopener within 6 months in order to permit a
further review of the wage picture to see what could be done at that
time towards increasing wages. Despite the Respondents' inability
to pay the wage increase, as evidenced by their financial statement,
and their willingness to continue negotiations, the Unions nevertheless
struck on February 11.
Thereafter, on February 13, the Respondents and the Unions met
again. The Respondents repeated their offer of a 1-year renewal of
the contract with the 6 months' wage reopener, and suggested that
the strikers return to work pending a settlement of the issues. The
Respondents also suggested that the parties should continue to try
to resolve their differences through negotiations. However, officials
of the Teamsters answered that there would be money to carry on
the strike as long as necessary, and that they saw no sense in going
on with the negotiations. Hunt, a Teamsters official, further stated
that all offers the Union had made up to that point were withdrawn.
The Respondents' counsel, Murphy, answered that in such case all
the offers the Company had made were also withdrawn. The meeting
was thereupon adjourned.
The parties met on February 27 before the State mediator, at which
time Carlson, a Machinists official, offered, unconditionally,6 to termi-
nate the strike by renewing the contract. Respondents, however, re-
jected the renewal offer.
In these circumstances, especially in view of the Respondents' pre-
strike concessions and demonstrated good-faith bargaining; their
continuing offers subsequent to the strike to renew the expired con-
tract; their expressed desire to take back the strikers and continue
negotiations during the strike period; and their withdrawal of former
e^ idimce Each case must turn upon its particular facts The inquiry must always
be whether or not under the circumstances of the particular case the statutory obligation
to bargain in good faith has been met" 351 U S 149, 152-153
a Between February 20 and 26, the Unions on several occasions offered to renew the
contract, which the Respondents rejected iWhile the evidence as to whether these offers
were unconditional is conflicting, we find it unnecessary to resolve such conflicts as the
Februaiy 27 offer was, in fact, unconditional
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,offers only after the Unions themselves made it clear that they were
withdrawing all prior union proposals, we do not find that the Re-
spondents failed to bargain in good faith when they ultimately re-
fused to continue their offer to renew the prior contract. We hold,
in the foregoing circumstances, that the Respondents were relieved
of any duty they might have been under to adhere to previously made
bargaining concessions, and were free, to withdraw prior proposals
and to renounce the terms of the old, expired contract, to which they
had sought to adhere despite the Unions' strike activity.'
Accordingly, we conclude that the record does not establish that
the Respondents failed to bargain in good faith." We shall therefore
order that the complaint heroin be dismissed.
[The Board dismissed the complaint.]
MEMBERS BEAN and JENKINS, dissenting :
In our opinion this case has been incorrectly decided. On Febru-
ary 4, and again on February 13, 1958, the Unions requested a more
informative breakdown and substantiation of expenditures than was
shown in the financial statement offered by the Respondents on
February 4. The comparative sales and profit statement offered by
the Respondents failed to disclose such items as cost of goods sold or
labor costs. Apart from showing that increased sales were accom-
panied by a decrease in profits, the figures presented amounted to
scarcely more than a bare assertion of inability to pays The Unions
were attempting to obtain wage increases . Although this financial
statement may have suited the needs of the Bureau of Internal Reve-
nue, creditors, and stockholders, it did not answer the unique require-
ments of intelligent, collective bargaining . The withholding of
clarifying data had the natural effect of at least arousing the
suspicions of the Unions toward the genuineness of Respondents'
claimed inability to grant a wage increase . It compelled the Unions
to negotiate in the dark without regard to the economic realities, and
7 See The Great Falls Employers' Council , Inc, et al , 123 NLRB 974, Stoner Rubber
Company, Inc, 123 NLRB 1440
N We cannot agree with our dissenting colleagues that the letters, advertisements, and
solicitations of strikers to return to work and the meetings and ensuing activities of the
employees were violative of Section 8(a) (1) In this connection , we are unable to find
on this record that (1) The requests to the strikers to return to work were anything
more than lawful notifications to economic strikers of the possibility of their replacement
if they did not return to work by a certain date ( The Texas Company , 93 NLRB 1358;
Webb Wheel Division , American Steel & Pump Corp , 121 NLRB 1410, 1411, footnote 3) ;
and (2 ) the meetings and ensuing activities of the employees were at the instigation of
the Respondents Moreover, we find , in agreement with the Trial Examiner, that the
meetings , having been called by the employees , were merely utilized by the Respondents
to inform their employees of their rights following a period of confusion arising from the
strike and the subsequent lawful replacement of strikers
s The record is replete with, teatunony that the Respondents claimed inabihtl to pay
any wage increase However, the Trial Examiner relied upon the self-serving. eanehi-
sionaiy statement of Reapondent^,' counsel to the contrary In this the Trial Examiner
cleanly erred
ALBANY GARAGE, INC. AND ALBANY MOTOR PARTS, INC. 421
without being able intelligently to decide whether to continue to press
for a wage increase.
Were anything further needed to dispel doubt as to the Respondents'
failure to bargain in good faith, the following surrounding and re-
vealing circumstances answer that need. As early as December 9,
1957, the Unions offered to reduce their wage demand by 2 cents an
hour. At that point the Respondents would agree only to a 1-year
-extension of the expired contract. On February 13, 1958, Andrews,
the Machinists' representative, pointed out to Murphy, the Respond-
ents' attorney, that the Respondents apparently did not wish to settle,
in view of their failure to offer an increase of 1 or 2 cents per hour.
Murphy replied that he had thought such an offer would not satisfy
the Unions. Andrews countered with the proposal that Murphy try
the Unions out. Murphy did not reply and no such offer was made.
On February 20, Andrews offered to renew the expired contract for 1
year without any wage increase. Craig, a vice president of both
Respondents, replied that he would consult with Murphy. Although
Andrews requested an answer, Craig did not comply. On February
21, Carlson, a grand lodge representative of the Machinists, obtained
Murphy's agreement to meet with him during the following week and
discuss possible settlement of the strike which had begun on February
11, and the underlying dispute. During this conversation Murphy
stated that it was to late for a settlement and added that the Re-
spondents had enough employees for their operations. At his meet-
ing with Murphy on February 26, Carlson offered a renewal of the
expired contract for 1 year or for whatever term was mutually agree-
able. Despite the Union's capitulation to the Respondents' original
conditions, Murphy rejected the offer. Carlson's renewal of his offer
on the next day met with the same lack of success.
On the fourth day of the strike, the Respondents notified their
-employees by letter that if they did not indicate willingness to return
to work by 9 p.m., on February 18, they would be permanently re-
placed. On the Sunday preceding February 18, the Respondents
placed advertisements in a local newspaper soliciting applicants for
the positions of the striking employees. In addition, the Respondents
solicited the return of individual strikers to work. For example,
Jarrett, a vice president, telephoned employee Mahar on or about
February 20 and advised him that but two men remained to be re-
placed, and that unless he returned by 9 a.m. the following day he
would lose his job. Craig asked employee Amill to return to work
"in defiance of the union." Craig also urged employee Ennis to show
some willingness to cross the picket line.
On February 26, the Respondents' management met with their em-
ployees at each of the former's three business locations. The an-
nounced purpose of the meetings, requested by employee Donnelly,
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was to tell the returned employees "where they stood with the Com-
pany." Notice of the meetings was, for the most part, conveyed by
word of mouth. However, at least one employee was told to attend by
his supervisor. The meetings were held during working hours with-
out loss of pay to the employees. Murphy, Craig, and other members
of management attended the meetings. At each meeting, Craig ad-
vised his listeners that wages, hours, and working conditions would
remain as they had been under the expired contract. In passing, it is
recalled that the Respondents rejected a similar proposal by the
Unions on the very day of the meetings. At each meeting, employee
Donnelly conducted the proceedings for 15 or 20 minutes after man-
agement had concluded its discussion and departed. During these
interludes Donnelly sought and obtained the formation of an em-
ployees' committee with himself as its chairman. It does not appear
that the employees were ordered back to work at the close of the
management portion of each meeting. Early in March 1958, Donnelly
led the committee in the solicitation of contributions to a committee
fund. The money was to defray the cost of counsel retained in con-
nection with a decertification petition. Solicitation was accom-
plished openly on the Respondents' premises during working hours.
Upon our view of the foregoing circumstances, we would find that
the General Counsel has fully established all the allegations of his
complaint.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act,
as amended ( 61 Stat. 136 , 29 U.S.C., Sec. 151, et seq ., herein called the Act).
The General Counsel of the National Labor Relations Board, on behalf of the
Board , by the Regional Director for the Second Region , on June 30, 1958, issued
a complaint and notice of hearing against Al bany Garage, Inc., and Albany Motor
Parts, Inc., the Respondents herein, alleging violations of Section 7, Section 8(a)(1),
( 3), and ( 5), and Section 2(6) and'(7) of the Act.
Prior to the issuance of the complaint , a charge dated March 10, 1958, was
filed on behalf of Lodge No. 838 , International Association of Machinists, AFL-CIO,
and Local No . 895, International Brotherhood of Teamsters , alleging that Albany
Garage, Inc., and Albany Motor Parts, Inc., as employers , had engaged in and were
engaging in unfair labor practices within the meaning of the above-mentioned pro-
visions of the Act. A first amended charge was served June 19, 1958, on behalf of
the original Charging Parties, alleging violations of the same provisions of the Act.'
The Respondents interposed timely answers to the allegations of the complaint,
effectively denying violations of the Act in general terms and setting up further,
separate , and partial defenses . On October 24, 1958, the Regional Director entered
an order amending the complaint and thereafter on November 3, 1958, issued and
served an amended complaint.
'Albany Garage , Inc., may sometimes hereinafter be referred to as Albany Garage ;
Albany Motor Parts as Motor Parts ; Lodge No. 838, International Association of Ma-
chinists , AFL-CIO, as Lodge No. 838 or the Machinists ; Local 89 15, International
Brotherhood of Teamsters as Local No. 895 or the Teamsters ; and the General Counsel
of the National Labor Relations Board or his counsel, in appropriate case, as the
General Counsel
ALBANY GARAGE, INC. AND ALBANY MOTOR PARTS, INC. 423
Amendments offered at the hearing (November 5 session) to the amended com-
plaint so issued on November 3, 1958, aver in substantial respect that prior to the
issuance of the original complaint and until on or about January 1, 1958,
... all garage and service employees of Respondent Company [meaning the
two Respondents herein], including elevator operators, warehousemen, pickup
and delivery drivers, porters, parts department employees, appliance depart-
ment employees, apprentice mechanics and working foremen at the places of
business of Albany Garage and Motor Parts, exclusive of office clerical em-
ployees, professional employees , watchmen and guards , salesmen and all
supervisors as defined in Section 2(11) of the Act, constituted a unit appropriate
for the purpose of collective bargaining within the meaning of Section 9(b)
of the Act.
and that from on or about January 1, 1958,
all garage and service employees of Albany [meaning Albany Garage] at the
places of business of Albany, including elevator operators, warehousemen,
pickup and delivery drivers, porters, appliance department employees, ap-
prentice mechanics and working foremen, exclusive of office clerical employees,
professional employees , watchmen and guards , salesmen and all supervisors as
defined in Section 2(11) of the Act, constituted a separate unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
and that from on or about January 1, 1958,
all employees of Motor Parts at the place of business of Motor Parts, exclusive
of office clerical , professional employees , watchmen and guards , salesmen and
all supervisors as defined in Section 2(11) of the Act, constituted a separate
unit appropriate for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
The complaint alleges that from November 10, 1955, and until some time during
the year 1956, Lodge 838 and Local 294 of the International Brotherhood of
Teamsters,2
were the joint representative for the purposes of collective bargaining of
a majority of the employees at the places of business of Albany in the [above-
described ] unit . . Sometime during 1956 , it is alleged , the International
Brotherhood of Teamsters transferred the organizational jurisdiction of Local
294 over automobile dealers, services and garages to Local 895, and the em-
ployees in the unit described above . who had previously designated Local
294. . as joint representative with Lodge 838 . .. for the purposes of
collective bargaining, thereupon transferred such designation to Local 895 .
in substitution of Local 294 . . . as the joint representative with Lodge 838
for the purposes of collective bargaining.
It is alleged by amendment to the amended complaint, allowed at hearing, that
at all times after some period of time during the year 1956, and until on or about
January 1, 1958, Lodge 838 and Local 895 were the joint representative for the
purposes of collective bargaining of a majority of the employees at the places of
business of Albany Garage in the above-described unit under Section 9(a) of the
Act. Further, it is alleged that from on or about January 1, 1958, Lodge 838 and
Local 895 were the joint representative of the employees at the places of business
of Albany Garage; that, by virtue of the provisions of Section 9(a) of the Act they
were, and still are, the exclusive representative of all the employees ,in the unit for
the purposes of collective bargaining; and that during these same times were the
joint representative of a majority of the employees at the place of business of Motor
Parts in the unit above described, and have been and now are the exclusive joint
bargaining representative of the employees in that unit. In short, the General
Counsel contends that prior to January 1, 1958, one unit was the recognized and
certified bargaining unit for Albany Garage, and that thereafter, when Motor Parts
began active operations on or about that date, the same joint representative of
employees for the purposes of collective bargaining was entitled to be recognized
2 On November 10, 1955, after a consent election agreed to by Albany Garage, Inc.,
Lodge 838 and Local 294 of the Teamsters (not to be confused with Local No. 895 of the
Teamsters), the Unions were certified as joint representative of the employees in the unit
first described above.
424 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and to bargain for and on behalf of all employees of Albany Garage and all em-
ployees of Motor Parts.
Further, in connection with the allegations of the amended complaint as amended,
the General Counsel asserts that on or about February 4, 1958; and thereafter, the
Respondents "as a Company" refused and continued to refuse to bargain with the
exclusive joint bargaining representative, particularly in that on or about February 4,
and at various times thereafter, the Respondents refused to furnish and make avail-
able to the joint bargaining representative relevant record information and other
data to substantiate the position of the Respondents concerning their assertion of
inability to pay wage increases; and on or about February 5 the employers withdrew
their previous contract proposals and refused to sign a written agreement or agree-
ments embodying rates of pay, wages, hours of employment, and other conditions
of employment previously offered after acceptance of such proposal by the joint bar-
gaining representative. The affirmative pleadings set forth that on or about February
11 the employees of the Respondent ceased work concertedly and went out on strike,
and have been on strike since that day; that the strike was caused and prolonged
by the alleged unfair labor practices of the employers; that on or about certain
dates mentioned in the complaint (February 20 and 21, April 19, and May 8, after
having applied for reinstatement to their former or substantially equivalent positions
or employment, these employees were refused reinstatement; and that since February
14, the respondent employers have interfered with, restrained, and coerced, and
continue so to do, the exercise of the rights of employees guaranteed in Section 7
of the Act, by threatening employees with loss of their employee status for engaging
in unlawful strike activity; solicited individual strikers to return to work in deroga-
tion of the Union's authority as their bargaining representative; permitted employees
to meet on the time and the premises of the employers for the purpose of soliciting
support for a "decertification petition"; permitted employees to collect money on
the time and premises of the employers for the purpose of financing said "decertifica-
tion petition"; and permitted employees to use the bulletin boards of the "Respondent
Company" to publicize the decertification petition.
After the filing of the answer on behalf of the Respondents and the filing and
issuance of the amended complaint and amendments made to the complaint at the
hearing herein, the general denials set up in the answer were allowed to stand as
general denials to all amendments made to the first complaint. Special defenses
in the way of further, separate, and partial defenses to the alleged causes of action
stated in the first complaint and its amendments set forth,
(a) That with respect to Albany Garage, Inc., on or about June 20, 1958, it en-
tered into an agreement with Local No. 895, to run to December 8, 1959, for those
employees in the job classifications represented by that local under the previous
contract; (b) that on or about June 1, 1958, Albany Garage offered to enter into
a similar agreement with Lodge No. 838, which was refused, and that all times
mentioned in the complaint Lodge No. 838 and Local 294 were and still are the only
certified Unions for its employees; (c) that Local 895 was never certified as the
exclusive representative of the employees of Albany Garage in an appropriate unit;
and (d) further, that Local 895 "has requested the withdrawal of its charges." The
answer further sets up that Motor Parts had no employees and did no business
prior to January 1, 1958; that it was agreed between the parties that a separate
agreement would be negotiated between Motor Parts and Local No. 895; that
"demand was not made by Local 895" until on or about June 1, 1958, and "as a
result thereof an agreement covering employees in an agreed unit . . . was signed
by said parties on June 11, 1958"; and that neither Union was ever certified as ex-
clusive representative or representative of the employees of Motor Parts.
This case came on to be heard before the duly designated Trial Examiner at
Albany, New York, on November 5, 1958. At the hearing the General Counsel
and the Respondents were represented by counsel, and Lodge No. 83,8 and Local
No. 895, the Charging Parties, were represented by a Grand Lodge representative of
the International Association of Machinists. Sessions of the hearing were held after
that day on November 6, 7, 17, 18, 19, and 20, the hearing being closed on the 20th.
At the hearing, full opportunity to be heard, to examine and cross-examine witnesses,
to introduce evidence bearing on the issues, to argue orally upon the record, to file
proposed findings of fact and conclusions of law, and to file briefs was afforded
each party. On the opening day of the hearing certain amendments to the amended
complaint were offered (as noted above) by the General Counsel and were accepted,
and the Respondents orally amended the answers theretofore filed on their behalf
to encompass a general denial of all of the allegations of the amended complaint
as amended , with opportunity to file further written answer if so advised.
ALBANY GARAGE, INC. AND ALBANY MOTOR PARTS, INC. 425
The several issues of fact drawn by the original complaint , the amended com-
plaint and the several amendments made at hearing, and the answers of the Re-
spondents are discussed below. Motions made on behalf of Respondents to dismiss
the complaint are disposed of by the findings of fact and conclusions of law and
recommendation set forth below.
Upon the entire record of the case, from his observation of the witnesses, and
after careful consideration, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF ALBANY GARAGE, INC., AND ALBANY MOTOR PARTS, INC.
Albany Garage, Inc., and Albany Motor Parts, Inc., are, and at all times material
hereto have been, corporations duly organized under and existing by virtue of the
laws of the State of New York. During these times Albany Motor Parts, Inc., was
and has been a wholly owned subsidiary of Albany Garage, Inc.
During such times, Albany Garage, Inc., has maintained its principal office and
place of business at 28 Howard Street, in the city of Albany, State of New York,
and a used-car lot and truck shop in the city of Menands, State of New York, and
is now and has been continuously engaged at said places of business in the sale and
distribution of automobiles, automobile parts, home appliances, appliance parts, and
related products, and in the servicing of automobiles and appliances. Since on or
about January 1, 1958, and from February 20, 1958, Albany Motor Parts, Inc.,
maintained its place of business at Railroad Avenue, in the city of Albany, State
of New York, and is now and has been continuously engaged at said place of busi-
ness in the sale and distribution of automobile parts and related products. Between
January 1 and February 20, 1958, this corporation also had a principal place of
business at 28 Howard Street, in the city of Albany, New York. During these times,
Albany Garage, Inc., and Albany Motor Parts, Inc., were and are a single integrated
enterprise, the business operations of each of the corporations being controlled and
directed by common officers, directors, and management representatives. During
the year next preceding the issuance of the amended complaint herein, in the course
and conduct of their business operations, said Respondents caused the purchase,
transfer, and delivery to their places of business automobiles, automobile parts,
appliances and appliance parts, and other goods and materials, valued at more than
$2,000,000, of which goods and materials valued at more than $1,000,000 were
transported to said places of business in interstate commerce directly from States
of the United States other than the State of New York.
Each of the Respondent corporations is and during the times material hereto has
been engaged in commerce within the meaning of Section 2(6) and (7) of the Act
II. THE LABOR ORGANIZATIONS INVOLVED
Lodge No. 838, International Association of Machinists, AFL-CIO, and Local
No. 895, International Brotherhood of Teamsters, each is and during all times men-
tioned herein has been a labor organization within the meaning of Section 2(5) of
the Act.
III. FINDINGS OF FACT
A. Background
The Respondent, Albany Garage, is engaged in the sale and service of automobiles
as a franchised Dodge and Plymouth automobile dealer, and had been so engaged
for a considerable period of time prior to the beginning of the controversy herein.
This corporation operates a garage for the storage of cars at 28 Howard Street in
Albany, New York, and also is a wholesale distributor of television sets, radios, gas
and electric stoves, and refrigerators. Before January 1, 1958, Albany Garage
for a number of years was engaged in business as a wholesaler of Chrysler parts
at the same address. Chrysler Corporation, from which Albany Garage held a
franchise agreement, required Albany Garage to disassociate itself from the whole-
sale parts business so that on January 1, 1958, it turned over to its wholly owned
subsidiary, Motor Parts, its wholesale parts business. Each employee of Albany
Garage theretofore engaged in this particular operation became an employee of
Motor Parts. Motor Parts was set up in a place of business on Railroad Avenue
in Albany and the moving of the business to this address was completed on or before
February 20, 1958.3 Albany Garage also operates a truck shop as well as a used-car
lot in other locations in Albany.
a Unless particularly noted, all dates hereinafter mentioned are for the year 1958.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As noted above, Teamsters Local 294 was certified jointly with Machinists Lodge
No. 838 as a representative for the purposes of collective bargaining of all the
employees of Albany Garage. Negotiations for a new contract between that Com-
pany and the Union commenced during November 1957. Later the International
Brotherhood of Teamsters (the parent body) transferred the jurisdiction of Local
294 to Local No. 895. Sometime later, Albany Garage signed a joint collective
agreement with Lodge No. 838 of the Machinists and Local No. 895 of the Team-
sters. Sometime in advance of January 1, it was agreed by the parties that a sep-
arate contract or collective agreement for Motor Parts would be executed only
with the Teamsters as representative of the employees of that Corporation .4
As of the early part of February, representatives of the Respondents and repre-
sentatives of the Unions had engaged in several conferences regarding the execution
of a contract to cover the employees of Motor Parts. Having disagreed on the
provisions of an agreement, the Unions chose to strike on February 11. A picket
line was established on or about this date and was continued until about the latter
part of June. During this time, the employer hired about 25 replacements; most
of the employees returned to or applied for work on or about February 20; of those
not returned to work, some were later reinstated, others not.
Negotiations between the Company and the Teamsters resumed in May and on
June 11, Motor Parts company signed a contract with Local No. 895. On June 9
and 10, Albany Garage representatives conferred with representatives of Local No.
895 and Lodge No. 838; agreement was reached between representatives of the
Teamsters Union, but the Machinists (Lodge No. 838) refused to execute the con-
tract. A collective agreement was signed on June 20 between Albany Garage and
Local No. 895 for all of the members of the Union employed by Albany Garage.
Each of the collective agreements entered into between Albany Garage and Local
No. 895 are to expire in December 1959.5
B. Bargaining and strike
It should be remembered that Lodge No. 838 and Local 294 were first certified
as joint representative for the purposes of collective bargaining with Albany Garage
on November 10, 1955; and that thereafter and in the year 1956 Local No. 895 was
substituted for Local 294 as joint representative with Lodge No. 838. There seems
to be no question but that just prior to and on January 1, 1958, Lodge No. 838 and
Local No. 895 were the joint representative of the employees employed by Albany
Garage.
On January 29, 1957, Albany Garage and the Unions entered into a collective
agreement covering the employees of the Company, the agreement to be effective
as of December 8, 1956, and to remain in force and effect for a period of 1 year.
On or about October 1, 1957, the Employer was given notice by the joint repre-
sentative of their desire to meet for the purpose of negotiating a new contract.
Thereafter, on November 21, 1957, representatives of the Company met with repre-
sentatives of the Unions (the joint bargaining representative). Arthur Hunt, presi-
dent and business agent of Local No. 895, and William F. Andrews, local Lodge
organizer for Lodge No. 838, acted as chief spokesmen for the Unions and R. Harold
Craig, vice president of Albany Garage, and Vernon F. Murphy, attorney for the
Company, acted as spokesmen on behalf of the Employer. Hunt and Andrews
were assisted by a committee, and Craig and Murphy were accompanied by several
department heads
At the first meeting the Unions requested that the then current contract be
extended for an additional year with a change in the wage schedule, a change in the
vacation provisions, and other modifications. Representatives of the Company ex-
amined the written proposals submitted covering vacations and wages and com-
mented that the rates seemed high, to which the Union replied that the new rates
set forth would represent the elimination of a piecework or incentive plan, and
would represent hourly rates for employees; the Company set forth the Company's
financial position orally and said that the Company was then losing money, had lost
money, and in conclusion said that the Company was willing to renew the old con-
The word "Teamsters" refers now to Local No. 895.
A decertification petition was filed on March 3, 1958, by one Lawrence Donnelly, as
"Chairman, Employees' Committee," an employee of Albany Garage, and was withdrawn
in June of that year In June, and again in October, the Teamsters requested the with-
drawal of changes of unfair labor practices theretofore filed by the Teamsters The
requests for withdrawal were refused by the Regional Director. Case No. 2-RD-398
(unpublished)
ALBANY GARAGE, INC. AND ALBANY MOTOR PARTS, INC. 427
tract for a period of 1 year without change. Attorney Murphy then informed the
union representatives that Chrysler Corporation had requested Albany Garage to
disassociate its parts business from the dealer end of its operation , and discussion
ensued as to what would happen if such a separation of the business of Albany
Garage would mean insofar as union representation was concerned . According to
Andrews, Murphy and Craig said then that it might be that if the parts operation
were to be separated from the dealer part of the Company 's operations there might
have to be a new election to decide whether the employees of the parts section
wanted a union or not. Thereupon there was discussion concerning a successor
clause to be presented to the Company to take care of its employees who might
eventually be transferred into a new corporation to administer or take care of the
parts end . The company representatives , toward the end of this meeting, requested
time to study the Union 's proposals.
The same representatives met again on December 9, 1957, at which time Andrews
furnished the Company with a proposed "successor clause," as follows:
COVERAGE
The provisions of this Agreement shall be binding upon the Company and
its successors and assigns and all of the terms and obligations herein contained
shall not be affected or changed in any respect by the consolidation , merger,
sale, transfer , or assignment of the Company of any, or all, of its property or
affected or changed in any respect by any change in the legal status , ownership,
or management of the Company.
This Agreement shall cover all future plants which the Company may operate
during the terms of this Agreement or any extension thereof , including all
plants operated as a result of expansion or change.
Attorney Murphy, after having examined the successor clause, informed the union
representatives that he felt it was too restrictive upon the Company, that it could
not be incorporated into a new contract , and said that he felt he could come up with
some sort of a clause which would be acceptable to both parties ; to this, Hunt
replied that the Union would be glad to examine any clause Mr. Murphy might
draw. Craig stated that the Company was definitely of the opinion then that the
parts section of its business would be transferred to a new location . Craig and
Murphy again told the union representatives during this meting that , upon the
removal to new premises of the parts division , it might become necessary to have
a new election to determine whether the employees in that part of the business (a new
corporation ) did or did not desire union representation ; they also said , upon inquiry,
that the then employees of the parts department of Albany Garage would be
offered employment at the new location. The company representatives reiterated
their position that the employer was in no position to give any increase in wages and
did not want to change the provisions of the contract which expired December 8
except to agree to a 1-year extension of that agreement. The Union offer, accord-
ing to Andrews, ". . . would, for the sake of the record, cut our proposals down
2 cents per hour " No agreement was reached between the parties at that meeting.
On December 20, 1957, Hunt and Andrews reported to the membership the course
of negotiations up to then; by secret ballot the membership decided, according to
Andrews, "that the people were in favor of strike if the negotiating committee could
not, in more negotiating sessions with the Company , change the Company's position
from their stand that they would not give any change in the contract except the
renewal as such for a year."
Under date of December 24, 1957, over the signature of the president of Albany
Garage, the following letter or notice was furnished to the parts department
employees:
TO ALL PARTS DEPARTMENT EMPLOYEES:
On December 31, 1957 Albany Garage Inc. will discontinue the distribution
of automobile parts, accessories , and supplies . This is being done at the request
of Chrysler Motors Corporation, who insist that all wholesale outlets be com-
pletely separated from an automobile dealership such as ours.
Consequently, effective on that date, we find it necessary to terminate your
employment with this company.
We appreciate your loyalty and faithfulness , and trust that the future will
bring you much success.
Under the same date, Motor Parts , by its vice president , notified by letter or
notice the parts department employees as follows:
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TO ALL PARTS DEPARTMENT EMPLOYEES:
Effective January 1, 1958 Albany Motor Parts Inc. will commence the busi-
ness of distributing automotive parts, accessories, and supplies at wholesale.
We are hopeful that you will wish to continue at your job in the Parts
Department.
Please let us know as soon as possible.
The parties again conferred on December 28, 1957. According to Andrews, the
Company again said it was in no position to grant an increase in wages and that
the best offer the Company was able to make was a renewal of the old contract for
a year. At the suggestion of the union representatives, the Company agreed that
they would be willing for a mediator from the New York State Board of Mediation
to be brought in to assist the parties in a resolution of their differences.
The next meeting of the parties occurred on January 2, at the offices of the New
York State Mediation Board, the Board being represented by Commissioner Stephen
Davis as mediator. At this meeting the Company maintained its position that it
could not grant increases in wages or make other concessions, but was willing to
extend the collective agreement which had expired on December 8 for another year;
the Union refused the offer of the Company. Another meeting was held at the
offices of the State mediation board on February 4, with all parties represented, at
which time Attorney Murphy presented the committee and the mediator with a
financial statement which the union representatives considered, as stated by Andrews
to the mediator, to be insufficient in the sense that he felt that the Unions were
entitled to a more detailed breakdown of expenditures including the expenses of the
Company. Hunt said that it did not appear to him that the expenditures and
expenses as shown on the statement presented by the company representatives were
broken down enough to show them (the union representatives), "just where the
money did go." The Union demanded a more detailed breakdown of the financial
status of the Company. Thus, the company representatives refused, stating that the
statement was sufficient for the banks they did business with, for the Internal Revenue
Service, for stockholders, and that it should be sufficient on its face to meet the
objections of the Unions. Hunt suggested that the Company choose an auditing
firm and that the audit taken by it be given to an impartial arbitrator, the arbitrator
to give his report to the Union as to whether he felt the Company could or could
not give any increases. Attorney Murphy denied this request. According to An-
drews, Hunt told the company representatives that if the impartial auditor gave a
report to the Unions to the effect that the Company could not pay wage increases
"we would go back to our membership and strongly recommend that they accept the
contract for an additional year." Later, during the course of this meeting, repre-
sentatives of the Company again offered a 1-year extension of the agreement which
had expired on December 8 with a wage reopening clause for July 8, 1958. The
Union countered with a proposal of a 6-month extension of the agreement, with
a successor clause, which company representatives refused.
Andrews, Hunt, and members of their negotiating committee reported to a joint
membership meeting of the Unions on February 10, at which time a strike vote was
taken. A strike was called and picket lines were set up on February 11. On
February 13 the parties, fully represented, met at the offices of the State mediation
board. As reported by Andrews, the Company retained its position that it could not
do anything better than offer the Unions a contract in the same terms as the one
which had expired on December 8, 1957, for an additional year with a clause pro-
viding for a reopening on the question of wages on July 8; .the Union asserted that it
wanted a further breakdown of the financial statement previously submitted to it by
the Company. The union representatives took the position that it was necessary for
them to be furnished with further financial data by the Company so that the Unions
could properly proceed to negotiate the wage issue; and that the Unions' representa-
tives could not properly go back to their membership with an incomplete report and
inform the members of the Unions concerning losses claimed by the Company during
prior periods of time as set forth in the financial statement furnished by the Com-
pany. Hunt and Andrews took the position, it would seem, that their mere request
for additional financial data made it incumbent upon the Company to produce This
meeting, with Commissioner Davis present, ended in an apparent impasse.
On February 20, Andrews telephoned Craig. In his telephone conversation, ac-
cording to Andrews, he told Craig that-
Some of the boys have advised me that they wish to go back to work, that I
had Mr. Donnelly, Mr. Hacker, and Mr. Simpson with me while I was making
this phone call, and would he, Mr. Craig, put all of the people back to work at
this time if I assured him that he would go along with the old contract for an
ALBANY GARAGE, INC. AND ALBANY MOTOR PARTS, INC. 429
additional year. Mr. Craig's reply to that was that he couldn't give me that
answer, that he would have to go through Mr. Murphy. I asked him how long
it would take approximately for him, for Mr. Craig, to reach Mr. Murphy. Mr.
Craig told me that he had been unable to get ahold of Mr. Murphy for the few
days previous, that it would probably take a couple of days Mr. Craig also
told me during that telephone conversation that he had hired 25 replacements
and that, in any case, they would remain and the people whose jobs they had
taken from the strike line would not be reemployed on those jobs.
Albany Garage and Motor Parts, on February 14, had sent identical letters to their
employees, as follow:
In good faith, we asked your union representatives at a meeting conducted at
the New York State Labor Mediation Board on Thursday, February 13, if it
were possible for all Albany Garage Workers [in the Motor Parts the letter
reads "all Albany Motor Parts"] workers represented by them to return to work
immediately while a new contract is being negotiated. This would have pro-
vided a safe and dignified way for you, as a group, to return to work so that
your regular pay checks and our business could continue without further inter-
ruption. Their answer was that it was possible but implied that it would not
be done.
Now, we must ask you to make your decision on this matter, because it is
our duty to restore the Company to full production without further delay.
If you do not indicate to the writer either in person, by letter, or by telephone
on or before Tuesday, February 18, your willingness to return to work, we will
be compelled to fill your job with a permanent replacement.
We can give assurance that your job status will be protected only until 9
p in. on Tuesday, February 18.
On February 21, Carl S. Carlson, heretofore mentioned as Grand Lodge repre-
sentative of the Machinists, received a telephone call from Andrews and as a con-
sequence Carlson telephoned Attorney Murphy and arranged an appointment to
discuss a possible settlement of the strike and the return to work of the strikers.
The two met in Albany on February 26 and after a short discussion arranged to call
on Commissioner Davis at the New York State Mediation Board on the following
morning. Such a call was made. During the course of their conversations on the
evening of February 26, and with Davis on the morning of February 27, Carlson
offered a renewal of the prior collective agreement, with no conditions attached to
the offer. To ,this offer by Carlson, Murphy is quoted as saying, "Craig won't go for
that," although Carlson tried to point out to Murphy that it would be advantageous
to both parties to terminate the controversy and to "get back to normal by renewing
the old contract for another year."
At this time, it was clearly apparent that the union representatives had conceded
that the strike was lost, and were in the position of attempting to get the strikers still
out back to their jobs without loss of prior status. It was equally clear that Albany
Garage, but more particularly Motor Parts, had taken the position that the strike
was an economic strike which the Union had lost, and that the Employer or Em-
ployers would protect the rights of those men who had been employed to replace the
strikers The course of negotiations between the parties looking forward to the
consummation of a new collective-bargaining agreement prior to the execution of
the agreement with the Teamsters in June, does not show bad faith in bargaining on
either side On the contrary, it appears that each of the parties to these negotiations
were dealing seriously in regard to proposals and counterproposals in an effort to
reach the best possible agreement mutually satisfactory to each side.
Under date of May 8, Lodge No. 838 sent a letter signed by Andrews, also
signed by Hunt as representative of Local No. 895, to Craig as vice president
of Albany Garage:
Lodge No. 838, International Association of Machinists, AFL-CIO, and
Local No. 895, International Brotherhood of Teamsters, hereby are requesting
that all of the Albany Garage, Inc. employees who walked out on strike on
February 11, 1958, and who have not yet returned to work be reinstated on
their jobs immediately.
This offer to have the above referred to employees return to work is entirely
unconditional 6
6 The complaint and the amended complaint set forth certain names of employees which,
it is alleged, "Respondent Company refused to reinstate . . . to their former or substan-
tially equivalent positions of employment " The names and dates set forth are as follows :
Philip Rudolph, February 20, 1958; Bruce Aiton, February 21, 1958; W. D. Ennis,
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These letters were sent to each employee on strike on the date mentioned. The
strike, which had begun on February 11, continued , and while the strike was being
conducted by the Unions, the employers started a recruitment program to enable
them to replace striking employees . On Sunday , February 16 , the following adver-
tisement appeared in The Albany Times-Union, a newspaper of general circulation:
Albany Motor Parts is now accepting
applications for the following jobs:
4-parts warehousemen 5-parts counter men
2-parts shippers 1-lead counter man
2-parts receivers 3-truckdrivers
I-parts receiver leadman 1-lead truckdriver
It is our intention to permanently replace our employees who have not indi-
cated by Tuesday, February 14, their willingness to return to work.
Make application to
ALBANY MOTOR PARTS
Albany 4-8121 Troy AS. 2-3900
28 Howard St., Albany, N.Y.
A companion advertisement was run by Albany Garage , the only substantial differ-
ence being the listing of jobs.
C. Alleged acts of interference , restraint, and coercion
The allegations of the complaint to the effect that the Employers threatened their
employees with loss of employee status for engaging in lawful strike activity,
that they solicited individual strikers to return to work in derogation of the Unions'
authority as their bargaining representative, permitted employees to meet on the
Respondents' time and premises for the purpose of soliciting support for a decerti-
fication petition, and permitted employees to collect money on the Respondents'
time and premises for the purpose of financing said decertification petition and
further, permitted employees to use the Respondent Company's bulletin board to
publicize the decertification petition, have been carefully considered on the evidence
in whole context.
Approximately 10 days after the beginning of the strike or about February 20
or 21, some 25 strikers appeared at the premises of Motor Parts and requested
replacement. Andrews was aware that these men intended to apply for reinstate-
ment (having been so advised by Donnelly, and Andrews on that day' having
talked to Craig over the telephone). When the men called at the premises of
the Company, Craig informed the men that he was glad to see them come back,
that there would be no reprisals of any kind and that their status would be the
same, and according to Donnelly, "as if we were with the Union; as far as he was
concerned, everything was the same, pay-wise and benefits and anything else "
Donnelly then arranged a general meeting between management and the employees,
including the strikers, this meeting being held on February 26, at the 28 Howard
Street premises. Craig, Huntington, general manager of Albany Garage, and
Vice President Jarrett of Motor iParts, with Attorney Murphy, were present to
represent management . At this meeting, in response to questions from the men,
management advised them that the strikers already returned to work had the
same rights as they previously had held and that replacements at work had the
same rights as if they had been employed previously; the employees were assured
that vacation pay, sick leave, and other conditions of employment would be con-
tinued by the Company; it appears that management representatives were asked
what the status of employees presently was with the Union, to which Attorney
Murphy replied that he could not furnish legal advice since he represented the
Employer and suggested that if the employees wanted to find out what their legal
rights were, they should employ counsel of their own. Management representatives
then left the meeting. That meeting adjourned at about 4 p.m. Later in the day,
Donnelly, together with another employee, went to the place of business of Motor
April 19, 1958 Others listed under date of May 8, 1958, are these: Warren Simpson,
Frank Hillenbrandt, Arthur, Miller, Rudolph Mostek, Frank Thomson, John Kramer,
Emmet Jefferies, Andrew Davis, John Ryan, Robert Blair, Richard Carroll, Clint Strock,
Oscar Barrett, Mel Vartigan, Ray Turtin, Rocco Guilianelli, William Overbaugb, Charles
Wendland, and Francis Dennis Some of these men were offered reinstatement and ac-
cepted it, others refused work, and the remaining striking employees were put on a
preferential list
ALBANY GARAGE, INC. AND ALBANY MOTOR PARTS, INC. 431
Parts on Railroad Avenue. The same representatives of the Company appeared
there; Craig told the employees there that he had met just with employees at Albany
Garage and reported briefly what had transpired at that meeting; Donnelly testified
that Craig, in answer to one question among others, explained that where a striker
had been replaced according to law the replacement had a permanent job. This
was a brief meeting. Thereafter Donnelly and several other employees went to the
truck shop in Menands where, at about 5 o'clock that afternoon, another meeting
was conducted, the same representatives of management being present. Again,
after withdrawal of management representatives, the men employed at the truck shop
conducted a meeting; subsequently, 12 men were elected to act as a committee for
the purpose of retaining counsel to advise them concerning their rights; thereafter,
after receiving advice of counsel, it was decided that the employees would request
the National Labor Relations Board to hold an election.? The letter, referred to
in the first preceding footnote was posted on a bulletin board on the employers'
premises by Donnelly, without permission from management.
The Trial Examiner can find nothing reported to have been said by management
representatives at the three meetings of February 26 which would constitute viola-
tions of the Act. Nor does he find within the testimony of employees Ennis, Aiten,
Mahar, or other witnesses a solid ground on which to find that the Company through
Murphy, Craig, Jarrett, or any other management representative solicited the return
of the strikers to work "in derogation of the Union's authority as their bargaining
representative." If anything, it seems clear enough that company representatives,
in the climate of the Union's admission of defeat so far as the strike was concerned,
management was doing nothing more than to advise a few strikers of availability or
nonavailability of work, and as to those of them who had not yet been reinstated,
what company policy was. They also made it clear that new employees hired during
the strike would be retained.
The General Counsel would have the Trial Examiner infer, from the fact that
Donnelly was so active in setting up the meetings on February 26, that Craig and
Murphy were the instigators; that it was because of them that Donnelly and some of
his friends caused Andrews to talk to Craig on February 20, and for Andrews to
talk to Carlson on February 21; and that they supported the idea that counsel be
retained and consulted by the so-called employee committee to result in the filing
of a decertification petition. On the basis of the facts disclosed by the record herein,
the Trial Examiner cannot go so far.
Under date of June 21, Vice President Craig addressed a letter to W. D. Ennis as
follows:
We hereby unconditionally offer to re-employ you on the job that you formerly
held on the same terms and conditions.
If you are interested in returning to work for us at this time, will you please
contact the writer immediately by letter, telephone, or in person?
This form of letter was sent to others of the strikers mentioned in footnote 6
Philip Rudolph returned to work July 28; Bruce Aiten returned to work June 12;
William D. Ennis returned to work June 24; Arthur Miller, June 26; John Kramer,
June 23; Andrew Davis, July 10; John Ryan, October 22; Melic Vartigan, June 26;
and Francis Dennis, August 18.
D. Alleged refusal to furnish financial data
The question of the ability of Albany Garage to grant wage increases as requested
by the Unions was brought into direct focus at the first meeting after the parties had
invoked the services of the New York State Board of Mediation. The Company
furnished to representatives of the Unions the financial statement of Albany Garage
as of December 31, 1957, together with a comparative sales and profit report for the
period January i to December 31, 1957, which, the Company asserted without con-
tradiction, satisfied its bank, its mortgagee, and Federal and State tax authorities.
7 A fiim of attorneys on March 10, addressed a letter to "Each Albany Garage, Inc
Employee." in-which they undertook to advise the employees concerning their rights with
respect to negotiation of a new contract. This same firm had furnished a receipt dated
March 8, as follows :
This will acknowledge receipt of $746 cash paid us today by Lawrence Donnelly,
Michael Evanchick, Roy Fiackard, E J Mahar, William Moro and Stanley
VanDenburgli on account of the retainer agreement, dated March 1, 1958, with
Albany Garage Inc 'a employees
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Representatives of the Unions , without being too definite , asserted the need for
further financial information to prove to them the validity of the position taken by
the Employers . Further, it was suggested or requested on behalf of the Unions that
auditors , whose services would be compensated for by the Union , be given access
to company books and records, and that their findings be submitted to an impartial
arbitrator to determine the question of whether or not the Company was in a position
to grant increases in wages and other kindred benefits. The union demands in this
respect were denied by company representatives.
The Respondents say, and the evidence herein goes to establish , that they never
claimed "inability to pay." They say that their position was, at all times , that it
would not be good business practice at the particular time negotiations were in
progress to increase their payrolls.
A naked demand, without particulars , for further information to be acquired by
outside auditors and then their findings to be submitted and passed upon by an
arbitrator , would seem to be an unreasonable request , in view of the prior negotia-
tions between the parties . Management representatives had taken firm position
concerning over-the-board wage increases and with respect to increases in job
classifications . The Unions were just as positive in pressing their requests. So far
as can be determined from the record , though, the Unions ' representatives did not
know what could or would be determined by an examination of cost and expense
or profit and loss records kept. As emphasized by counsel for the Respondents, at
hearing and in brief, the same form of financial statement had been accepted during
negotiations in prior years without question , and with no request for supplemental
financial data to come from the current records of Albany Garage. In substance, it
would seem that in the last negotiations between the parties , the chief representatives
of each Union decided it might be best to engage in a sort of fishing expedition to
determine , if they could , what relative financial position existed as between Albany
Garage and Motor Parts.
The General Counsel asserts that the evidence herein establishes conclusively
that the strike would not have occurred except for the refusal of the Employers to
give the information demanded or grant the Unions the right to an independent audit
of company records to determine the correctness of the Companies ' position. This
goes too far ; it is too close to compulsory arbitration , absent a request for specific
information . Under the National Labor Relations Act, no party can demand as of
right and as a part of the collective -bargaining process, that another party yield its
rights to a third party.
Concluding Findings
The gravamen of this case is whether the refusal of the Respondents to furnish
further financial data or to open its records to an auditor or accountant furnished by
the Unions constituted a refusal to bargain . Once this is decided , it would seem
that all other questions are susceptible to correct answer.
In N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, 153-154, the Supreme Court held
that each case must turn upon its particular facts, and the inquiring must always be
whether or not under the circumstances of the particular case the statutory obliga-
tion to bargain in good faith has been met ; that the Act does not require in every
case where economic inability is raised as an argument against increased wages, it
automatically follows that the employees are entitled to substantiating evidence.
The Board, in B. L. Montague Company, 116 NLRB 554, following the principle set
forth in N L.R B. v. Truitt Mfg. Co., supra, agreed that it has a right to consider an
employer's refusal to give information about its financial status, and that a refusal
to substantiate a claim of "inability to pay" may support a finding of a failure to
bargain in good faith.
As pointed out above , the Respondents in the instant case do not claim inability
to pay; they say that under the circumstances existing as of the month of February,
it was not feasible to meet the demand for a general wage increase . Further, as
has been pointed out by the Trial Examiner , representatives of the Union did not
specify what information they wanted other than that furnished-it seems they felt
justified in a request to go on a fishing expedition . But such a demand as this cannot
be considered to be a reasonable one.
In Pine Industrial Workers, et al., 118 NLRB 1055 , the Unions filed unfair labor
practices charges asserting that certain employers had violated the Act by refusing
to supply, first , information relating to wages paid employees and second, informa-
tion relating to production and sales . It was alleged further that by such refusal
and thereafter refusing to agree to changes in employment conditions, there was a
refusal to bargain in good faith . The Board found that the employers had violated
ALBANY GARAGE, INC. AND ALBANY MOTOR PARTS, INC. 433
the Act by refusing to supply the information relating to wages, but dismissed the
complaint insofar as the refusal to supply records regarding production and sales
were involved.
The right of union representatives, during negotiations, to be furnished with wage
data, seems to be fully established .8 Here, the Unions' representatives did not ask
for wage data-they knew all they wanted to know in that regard, having had prior
experience in dealing with Albany Garage-all they wanted was a general across-
the-board wage increase.
Without saying that such further data as requested by the Unions' representatives
should never be furnished, the Trial Examiner says here, in the circumstances of
this case as disclosed by the record, the refusal of the Respondents to furnish gen-
erally figures in the form of all business records was justified, and did not violate
the duty to bargain in good faith. He so finds. Compare N.L.R.B. v. Truitt Mfg.
Co., supra, with N.L.R.B. v. F. W. Woolworth Co., 352 U.S. 938.
The Trial Examiner has expressly found that the strike of February 11 was an
economic strike. He now expressly finds that the representatives of the Respondents,
after being approached by Donnelly and others, as set forth above, did not engage
in any act in contravention of Section 7 or Section 8 (a) (3) or (1) of the Act. The
meetings of February 26, and subsequent events, including retention of counsel by
certain of the strikers or employees, on the whole record, cannot be attributed to
employer activity, interference, encouragement, or support. Inferences may be
drawn in these respects, but they in whole case cannot support a finding of violations
of the Act .9
On the basis of the foregoing findings of fact, the Trial Examiner makes the
following:
CONCLUSIONS OF LAW
1. The Respondents, Albany Garage, Inc., and Albany Motor Parts, Inc., are,
and at all times material hereto have been, engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Lodge No. 838, International Association of Machinists, AFL-CIO, and Local
No. 895, International Brotherhood of Teamsters, are, and during the times material
hereto were, labor organizations within the meaning of Section 2(5) of the Act.
3. The Respondents above named have not been and are not now in violation
of the National Labor Relations Act, asamended, as alleged in the complaint herein.
[Recommendations omitted from publication.]
8 E g, N L R B. v. F. W. Woolworth Co., 352 U.S. 938, reversing 235 F. 2d 319 (C.A. 9,
1956) ; N.L.R.B. v. Whitin Machine Works, 217 F. 2d 593 (C.A. 4, 1954), cert. denied
349 U.S 905 (19'55) ; Taylor Forge & Pipe Works v. N.L R B., 234 F. 2d 227 (CA. 7,
1956) ; N.L R.B. v. Yawman & Erbe Manufacturing Co,, 187 F. 2d 947 (C.A. 2, 1951)
Boston-Herald Traveler Corporation v. N.L.R.B., 223 F. 2d 58 (C.A. 1, 1955).
9 The Trial Examiner adopts the proposed findings furnished to him at his request by
counsel for the General Counsel, defining the appropriate bargaining units :
(a) Heretofore and until on or about January 1, 1958, all garage and service
employees, including elevator operators, warehousemen, pickup and delivery drivers,
porters, parts department employees, appliance department employees, apprentice
mechanics and working foreman at the places of business of Albany Garage Inc. and
Albany Motor Parts Inc., exclusive of office clerical employees, professional employees,
watchmen and guards, salesmen and all supervisors as defined in Section 2(11) of
the Act, constituted a unit appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
(b) From on or about January 1, 1958, all garage and service employees of Albany
Garage, Inc., at the places of business of Albany Garage, including elevator operators,
warehousemen, pickup and delivery drivers, porters, appliance department employees,
apprentice mechanics and working foremen, exclusive of office clerical employees,
professional employees, watchmen and guards, salesmen and all supervisors as defined
in Section 2(11) of the Act, constituted a separate unit appropriate for the purposes
of collective bargaining within the meaning of Section 9('b) of the Act.
(c) From on or about January 1, 1958, all employees of Albany Motor Parts, Inc.,
at the place of business of Motor Parts, exclusive of office clericals, professional
employees, watchmen and guards, salesmen and all supervisors as defined in Section
2(11) of the Act, constituted a separate 'unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
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