Kingsford Motor Car Co.

National Labor Relations Board - Board Decisions

Jan 30, 1962

135 N.L.R.B. 711 (N.L.R.B. 1962)

KINGSFORD MOTOR CAR COMPANY
Balbino Santiago ( social security No. 580-24-2949)
711
Year and quarter Gross back-
pay
Interim
earnings
Net backpay
1956-I1I----------------------------------------------------- $79.99 -------------- $79 99
IV------------------------------------------------------ 312 85 $42 57 270 28
1957-1-------------------------------------------------------- 385 88 100 45 285 43"
II------------------------------------------------------- 94 34 17 99 76 35
III------------------------------------------------------ 382 87 139 12 243 75
IV----------------------------------------------------- 185 46 94 12 91 34
1958-1------------------------------------------------------ 209 85 64 27 145 58
II------------------------------------------------------- 173 92 125 43 70 78
Total net backpay----------------------------------- 1,263 50'
CONCLUSION AND RECOMMENDATION
Upon the foregoing findings, I find and conclude that the employees listed here-
under are entitled to payment by Respondents of the sums listed opposite their names:
Enrique Gallego------------------------------------------------ $851.56
Hermenegildo Luna--------------------------------------------- 1,344.78
Eusebio Mercado----------------------------------------------- 1,343.24
Rafael Renta--------------------------------------------------- 1,225.23
Pablo Retamar------------------------------------------------- 1,196.64
Balbino Santiago------------------------------------------------ 1, 263.50'
Francisco Alcala------------------------------------------------ --------
Domingo Belmonte---------------------------------------------- 95.24
Luis Felipe Dessus---------------------------------------------- 17.21
Manuel Jimenez------------------------------------------------ 49.02
Juan Oliveras--------------------------------------------------- 15.70,
Eduardo Luis Renta----- ---------------------------------------- --------
Luis Guillermo Rios --------------------------------------------- 49.81
Rufino Rosaly-------------------------------------------------- 87.06
Alfredo Ruiz Puig---------------------------------------------- 83.95
Arsenio Salaman------------------------------------------------ 48.22
Enrique Soto--------------------------------------------------- 3.90,
Jesus Vazquez------------ -------------------------------------- 19.58
Bernardo Velazquez--------------------------------------------- 7.79
Rafael Velez--------------------------------------------------- 218.28
Total---------------------------------------------------- 7,920.71
It is recommended that the Board adopt the foregoing findings and conclusions.
E. S. Kingsford , doing business as Kingsford Motor Car Com-
pany and Teamsters , Chauffeurs , Warehousemen & Helpers
of America, Local No. 328, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America. Cases
Nos. 18-CA-1253 and 18-RC-4580. January 30, 1962
DECISION AND ORDER
On October 16,1961, Trial Examiner Owsley Vose issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
135 NLRB No. 76.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case , and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.'
DIRECTION
In accordance with the recommendations of the Trial Examiner
which it adopts; the Board hereby directs the Regional Director to
count the ballots of Phillip L. Peterson, Evan Larson, Michael Ber-
gagnini, Robert L. Valerio, and Joseph Selle; the individuals whose
ballots were challenged in the election in Case No. 18-RC-4580, and
thereafter to prepare and cause to be served on the parties a revised
tally of ballots, and to take such further action as is appropriate in
the circumstances.
ORDER .
The Board adopts the Recommended Order of the Trial Examiner
with the following modifications : (1) that provision 2 read : "Take
the following affirmative action which the Board finds will effectuate
the policies of the Act." (2) That provision 2(e) read: "Notify the
Regional Director for the Eighteenth Region, in writing, within 10
days from the date of this, Order, what steps the Respondent has taken
to comply herewith." 2
1 The Respondent excepted to the Trial Examiner 's recommended order that the Respond-
ent reopen its body shop to provide substantially equivalent employment for the former
body shop employees , because there is no provision in the Act which gives the Board
authority to compel an employer to engage in any particular kind of business enterprise.
Contrary to the Respondent' s contention , our mandate in the Act as expressed by the
Supreme Court is that a remedy is an appropriate one "adapted to the situation which
calls for redress" only if it remedies the discriminatory discharges . N L R.B. v Mackay
Radio & Telegraph Co., 304 U.S. 333. It should be noted that the Trial Examiner's
recommended order provides for the reopening of the Respondent 's body shop only if there
are not equivalent positions available in his other operations . We do not believe that
such a requirement is unfairly imposed in the event Respondent is unable to remedy the
discriminatory discharges by reinstating the employees.to positions in his other opera
tions But for the Respondent's violations of the Act, his employees would have remaineda
in his employ S
IIn the notice attached to the Intermediate Report marked "Appendix," the words
"Decision and Order" are hereby substituted for the words "A Recommended Order of a
Trial Examiner " In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and
Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing
an Order"
KINGSFORD MOTOR CAR COMPANY 713
INTERMEDIATE REPORT AND RECOMMENDED ORDER
AND REPORT ON CHALLENGED BALLOTS
STATEMENT OF. THE CASE
Upon a petition filed by Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Local No. 328, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, herein called the Union, on January 10, 1961,
requesting an investigation and certification of bargaining representatives for the shop
and parts department employees employed by E. S. Kingsford, doing business as
Kingsford Motor Car Company, herein called Respondent, Edward C. Knapp, the
Regional Director for the Eighteenth Region, Minneapolis, Minnesota, on Janu-
ary 16, 1961, scheduled a hearing on the matters raised by the petition for January 24,
1961. This proceeding is known as Case No. 18-RC-4580. After the hearing, the
Board on March 21, 1961, issued its Decision and Direction of Election among the
employees in an agreed appropriate unit.
After the election had been scheduled by the Regional Director for April 5, 1961,
the Union, on April 4, 1961, filed unfair labor practice charges with the Regional
Director in Case No. 18-CA-1253. These charges, as amended on May 18, 1961,
alleged that: (1) on or about January 21, 1961, Respondent closed his body shop,
contracted out the work, and discharged employees Phillip Peterson, Joseph Tripp,
and Evan Larson because of their membership in, support of, and activities on
behalf of the Union; (2) between the dates of January 27 and February 11, 1961,
inclusive, the Respondent laid off, discharged, or otherwise terminated the employ-
ment of Michael Bergagnini, Joseph Selle, and Robert Valerio because of their
membership in, support of, and activities on behalf of the Union; and (3) on various
occasions since on or about February 6, 1961, Respondent and his general manager,
Carl Minella, have interfered with, restrained, and coerced employees by threatening
to close down and cease operations if the employees continued to support the Union.
The election was held as scheduled on April 5, 1961. The tally of the ballots shows
that 5 of the 14 ballots cast were challenged by the Company, which were sufficient in
number to affect the outcome of the election. Thereafter, the Regional Director
having reported that the challenged ballots were the ballots of Phillip L. Peterson,
Evan Larson, Michael Bergagnini, Joseph Selle, and Robert Valerio, five of the six
employees named in the charges filed in Case No. 18-CA-1253, the Board on May 25,
1961, directed that a hearing be held to resolve the issues raised by the challenged
ballots. In its order of May 25, 1961, the Board specifically directed the Trial Ex-
aminer conducting the hearing to "prepare and cause to be served upon the parties
a report containing resolutions of- the credibility of witnesses, findings of fact, and
recommendations to the Board as to the disposition of said issues."
On May 31, 1961, the General Counsel, by the aforesaid Regional Director, issued
his complaint , order consolidating cases, and notice of hearing, alleging in substance
the matters contained in the Union's amended charge filed on May 18, 1961, and
directing that the issues raised by the allegations of unfair labor practices and by the
challenged ballots in the representation proceeding .be heard and determined together.
On June 9, 1961, the Respondent filed his answer denying the commission of any
unfair labor practices and setting forth certain affirmative defenses to the violations
alleged.
Thereafter, pursuant to-due notice, a hearing was held in the above-consolidated
cases before Owsley Vose, the duly' designated Trial Examiner, at Iron Mountain,
Michigan, on June 13 and 14, 1961. All parties appeared and were represented at
the hearing and were afforded a full opportunity to be heard, to examine and cross-
examine witnesses, and to present oral argument. Subsequent to the hearing both
the General Counsel and Respondent filed briefs which have been fully considered.'
1 After the close of the hearing I requested of counsel for the General Counsel and
counsel for Respondent a clarification of certain entries appearing on General Counsel's
Exhibit No 10, and thereafter sent a notice of my request to counsel for the Charging
Party. Pursuant to this request, clarification was received in the form of a letter from
Respondent which counsel for the General Counsel has consented may be considered by
me in lieu of a stipulation from the parties A copy of my request for clarification, a
photostatic copy of Respondent's letter of clarification together with the covering letter
-from Respondent's counsel , and counsel for the General Counsel's letter accepting Re-
spondent 's clarification are received in evidence as 'Trial Examiner's Exhibits Nos la,
lb, Sc. and Id, respectively.
`714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record , and from my observation of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
1. JURISDICTIONAL FINDINGS
Respondent , an individual proprietor , owns and operates a Ford agency , and has
sales and service facilities at Iron Mountain and Kingsford, Michigan. During 1960
Respondent sold new and used automobiles and parts and performed services for his
customers in an amount valued in excess of $825,000, of which amount more than
$50,000 worth is attributable to sales made and services rendered to customers
situated outside of Michigan . I find , as Respondent admits, that he is engaged in com-
merce within the meaning of the Act, and that it will effectuate the policies of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local No. 328,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background; the organization of the Union ; its efforts to obtain recognition
Dissatisfaction with conditions at the Kingsford garage on December 24, 1960, led
to a decision on the part of some of the men there to organize . Contact was made
with a truckdriver, who put Kenneth Davis , the treasurer of the Union, in touch with
Phillip L. Peterson and some of the other employees at the Kingsford garage?
Davis scheduled a meeting of employees for December 30, 1960. Eleven of the
fifteen nonsupervisory shop and parts department employees signed applications
for membership in the Union on December 30. At the same time each signed a
separate certificate stating that he is an employee of Respondent , that he maintains
membership in the Union, and that he authorizes it to request recognition as his
bargaining agent and to conduct bargaining negotiations in his behalf.
On January 3, 1961 , Arnold Alsten, the secretary-treasurer of the Union , mailed
the 14 signed certificates to Respondent with a covering letter which stated that "a
majority of your employees within a bargaining unit consisting of shop employees
have designated the Teamsters Union , Local 328, to represent them in collective
bargaining negotiations for a working agreement ." Included , among others, were
the certificates of all the rank -and-file employees in the parts department and the
body shop . In reply, Respondent on January 9, 1961 , wrote the Union as follows:
.. we insist on an N.L.R.B. conducted election before recognizing any collective
bargaining agency in negotiations for a working agreement in our shops." In re-
sponse to Respondent 's letter, the Union wrote back on January 10 that it had filed
a petition for an election with the Board and requested that Respondent sign an agree-
iient for the conduct of a consent election . Respondent declined to do so.
B. The closing of the body shop ; the discharge of Phillip L . Peterson, Joseph
Tripp , and Evan Larson
1. The events of January 19 to 21
Peterson was a skilled body and fender man and acted as leadman in the body
shop which was located in the basement of Respondent 's Kingsford garage. Tripp and
Larson were apprentice bodymen who were learning the trade . According to Tripp's
testimony , on Thursday , January 19, 1961 , Edwin E . Davey, Respondent 's service
manager, gathered the three men together and said , "Well, boys I have bad news for
you. . . As of the 21st , the body shop will be discontinued ." Peterson there-
upon asked Davey "if it was because of us joining the Union ." Davey replied that
"he was in no position to answer that , he was an outcast." No explanation for the
closing of the body shop was given , as Davey admitted . The testimony of Peterson
and Larson fully corroborates that of Tripp concerning the date and the circum-
stances of their being notified about the closing of the body shop.
2 For convenience , hereinafter I will refer to Respondent 's garage at Kingsford , Michi-
gan, where Respondent maintained his main service facilities and his body shop, as the
Kingsford garage. I will refer to Respondent 's establishment at Iron Mountain where he
has his main office and showroom, and where some light service work is done, as the
downtown garage.
KINGSFORD MOTOR CAR COMPANY 715
The testimony of both Respondent and Davey concerning the timing of the deci-
sion to close the body shop and the circumstances under which such decision was
made and communicated to Davey is somewhat confused, vague, and at times incon-
sistent. Respondent was unable to recall exactly when he made his determination
to shut down the body shop. Nor was he able to remember when he conveyed his
decision to Davey, except to say that he notified Davey of his decision not more
than a day or two before the shutdown. Respondent also was unable to recollect
whether he communicated his decision to close the body shop directly to Davey, or
through Carl Minella, his general manager. Respondent did recall consulting his
attorney in Milwaukee on January 19 for advice about closing down the body shop
and otherwise reducing personnel. However, Respondent did not remember when
he returned to Iron Mountain, whether it was the same day or the next. Davey testi-
fied that he was in Respondent's office on the afternoon of January 21, that Respond-
ent at that time informed him that he was closing the body shop as of that afternoon,
that Respondent did not indicate to him any reason for his action, and that he
returned to the Kingsford garage and notified the employees of the decision about
45 minutes later. In view of the mutually corroborative testimony of the three body
shop employees concerning the circumstances of their being notified of the shutdown,
the certainty with which they recalled that they had worked lih days after their noti-
fication, and Respondent's failure to support Davey's version, 1 cannot accept Davey's
testimony in this regard and find that the employees were notified of the shutdown
as set forth in the testimony of Tripp, quoted above.
The three men worked all day Friday, January 20, and Saturday morning, January
21. On Saturday morning Tripp noticed that the timecards for the three men for
the following week had been placed in the rack beside the timeclock. When he called
this fact to Davey's attention, Davey commented, "I put them there because 1 still
have hopes that you'll be back working." Later that morning, Tripp and Peterson
again put the question to Davey whether they were going to be working next week.
Davey replied, "No, . I'm a stubborn man, I still have hopes."
Peterson went to see Respondent in his office just before closing time on Saturday
morning, January 21, and asked him whether he was going to be given his vacation
-pay. Respondent replied that he would like to know how Peterson felt that he had
earned it. When Peterson explained that Davey had promised him 1 week's paid
vacation a year, and that he had had no vacation in the past year, Respondent replied
that "he had discussed it with the men and would not pay." Respondent then turned
the discussion to the Union. In the course of this discussion Respondent cited an
instance of the Union wasting its funds by paying an excessive price when it purchased
a tract of land in Escanaba.
Respondent discontinued his body shop as of January 21, 1961. However, in a few
instances he accepted orders for bodywork and contracted the work out to Jack's
Body Shop, but Respondent billed the customer for the work. Respondent's records
show ,a gross profit from the sale of body shop labor in the months of February and
March 1961, after the closing of the body shop, in the amounts of $137 and $81,
respectively.
Prior to the closing of the shop, the men had not been given any inkling that such
a move was being considered. Davey admitted that Respondent had never discussed
-with him the closing of the shop.3
2. General Manager Minella's subsequent statement to Peterson
A week or two after the closing of the body shop, Peterson went to the downtown
garage to settle his account with Respondent. Carl Minella, Respondent's general
manager, upon observing him there engaged him in a conversation, in the course
of which he stated that "if the Union was to come in Mr. Kingsford would be unable
-to continue in business and would be forced to sell both garages." Peterson replied
that the men did not want Respondent to close down, "all they were asking was more
fringe benefits . they did not want a huge increase or anything such as that,
they were more than willing to meet him half way." Minella then informed Peterson
that if the business were sold, he was thinking about starting a used carlot, and
inquired whether Peterson was interested in becoming one of the partners in such a
venture.
3. The Respondent's need for body and paint services
Respondent, like other automobile dealers who engage in retailing of their own
used cars, requires body and paint services from time to time to put used cars which
8 Davey testified that on one occasion, 2 to 4 months prior to the shutdown, he and
Kingsford had had "a general discussion on how we could make it (the body shop
operation ) better."
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been taken in trade into a salable condition . By his own admission , during
the period beginning the latter part of January through May 1961 , Respondent con-
tracted out bodywork on his own new and used cars and on customers ' cars sent
over to him in the sum of $1 ,089.95 worth . Of this work , $ 868.45 worth went to
Jack's Body Shop in Iron Mountain , and the remainder was sent to Phil's Body Shop
in Aurora , Wisconsin . In addition , an analysis of the invoices of Jack's Body Shop,
which was received in evidence by stipulation , shows that that shop worked on
three other vehicles, insurance jobs, which were sent over by Respondent. These
jobs are listed as follows:
Miller Plumbing ------------------------------------------- $436.26
Carl Lemin ----------------------------------------------- 106.60
Kingsford-Minella ------------------------------------------ 488.12
Total ---------------------------------------------- 1,030.98
Thus, in a little over 4 months a total of $2,120.93 worth of bodywork available to
Respondent was contracted out to outside body shops.
4. The workload in the body shop in January 1961
The volume of work in the body shop was very light in the period in January 1961,
preceding the closing of the shop . Figures taken from Respondent 's payroll records
show that after January 10, Peterson and Larson performed very little normal body-
work either on customer or company cars. Tripp did almost no regular bodywork
after January 6. The men filled in their time doing cleaning and repair work around
the shop.
Work generally slackens off in the body shop in the first part of the year . In past
years, however , no layoffs had been made The decrease in the volume of work in
January 1961 , was greater than in past years and was due in part to an unusual lack
of snow in the Iron Mountain area . As a result Respondent failed to obtain the
usual local accident repair work . Also, the lack of snow also kept tourists out of
the area, which is a well-known winter resort , and as a result Respondent did not
receive his usual tourist business.
5. Respondent 's explanations for the closing of the body shop
Respondent 's principal explanation for closing the body shop is that the body
shop had not been contributing its proper share to the gross earnings of the whole
of its sale and service operations for several years, and that in view of his con-
tinuing losses in the operation of the business , the difficult financial situation in which
automobile dealers generally found themselves at that time, and the depressed eco-
nomic conditions in the Iron Mountain area, he did not feel the continued operation
of the body shop was economically warranted . Respondent also assigned other
reasons for closing, including the asserted difficulties in properly supervising the
body shop operations in its basement location , and pointed out that during 1960
leasing out the body shop was discussed with Jack Minella, a local body shop
operator.
Profit-and-loss figures furnished by Respondent for his operations as a whole show
the following annual profits and (losses ), after yearend adjustments:
1955-------------------------------------------------- $ 4,499.70
1956-------------------------------------------------- ( 3,598.99)
1957---- ---------------------------------------------- (14,742.50)
1958-------------------------------------------------- (19,107.17)
1959-------------------------------------------------- (10 ,741.35)
1960-------------------------------------------------- ( 10,870.21)
1961 (through April)----------------------------------- 4(5,349.55)
Counsel for the General Counsel introduced into evidence tabulations giving the
gross profits (or losses ) of the various departments operated by Respondent covering
the period beginning with January 1955 and running through March 1961. This
tabulation was prepared from copies of reports submitted by the Respondent to the
Ford Motor Company. These figures are broken down to show for each month
' Figures introduced into evidence by Respondent show also that he put additional
capital into the business in the following sums,
1958--------------------------------------------------------------- $15,000
1959----------- ---------------------------------------------------- 21,500
1960--------------------------------------------------------------- 3.000
KINGSFORD MOTOR CAR COMPANY 717
the Respondent's gross profit from the sale of vehicles, from the sale of parts and
accessories, from the furnishing of body shop labor, and from Respondent's total
sales of labor, i.e., from both the body shop and from Respondent's repair and
service operations. By subtracting Respondent's gross profits from the sale of body
shop labor from his gross profit from his total sales of labor, his gross profits from
the sale of labor in his repair and service operations can be ascertained.
These figures, while they do not present the complete picture of the Respondent's
operations as a whole, do show that Respondent's substantial losses year after year
were attributable to his vehicle sales, i.e., sales of new and used cars and trucks.
Thus the figures as to Respondent's yearend adjustments in the value of vehicles on
hand at the end of the year show that Respondent wrote down the value of these
cars and trucks in the years 1955 to 1960 in an amount in excess of $38,000, which
is a substantial portion of the losses suffered by the Respondent in these years.
Respondent testified that "in 1960 every single vehicle we put on the road cost [him]
$50.00 to put it out the door."
Set out below are the total gross profits earned from the sale of body shop labor
each year from 1955 to 1960, as shown by the tabulations above referred to, and
the comparative figures showing the Respondent's gross profits resulting from the
furnishing of labor for repair and service work.
Bodand paint Repair and
Gross profits- shop labor service labor
1955-------------------------------------- $1,023
$7,566
1956-------------------------------------- 2,837 5,919
1957-------------------------------------- 3,443
4,223
1958-------------------------------------- 3,906
8,987
1959-------------------------------------- 6,753
9,630
1960-------------------------------------- 5,379
9,221
From the foregoing figures it appears that Respondent's gross profits from the fur-
nishing of body shop labor have been in a rising trend, increasing from $1,023 in
1955 to $5,379 in 1960.5
An additional gross profit accrues to Respondent from the operation of the body
shop as the result of the furnishing of parts and accessories used in body shop
operations. Respondent's gross profit from the sale of these items apparently is
included in the parts and accessories total. However, this total is not broken down
to show what portion is attributable to the operation of the body shop. To the extent
that the necessary parts are available only through a franchised Ford dealer, even
with the body shop closed, Respondent would benefit from the sale of these parts to
outside body shops which were doing the body shop work formerly handled by
Respondent.
Respondent's gross profit from the sale of body shop labor compared very favorably
with that earned in furnishing repair and service labor when the number of em-
ployees engaged in the two departments is taken into consideration. As found
below, Respondent's gross profits from the two departments afford an approximate
measure of the net profitability of the two operations. Respondent had three em-
ployees engaged in body shop operations throughout 1960. Respondent had at least
12 employees a month , upon an average , engaged in repair and service operations in
1960 . This figure excludes the parts department employees . Respondent's gross
profits from the sale of body shop labor in 1960 amounted to $5,379 as compared
with $9,221 derived from labor in repair and service operations. Thus, with an
employee complement four times as large as that of the body shop, Respondent in
1960 managed to gross less than twice as much from the sale of repair and service
labor as it did from the sale of body shop labors
In 1959, Respondent managed to achieve an even higher rate of return in the body
shop, considering the number of employees engaged in each operation. Respondent
had an average of between 11 and 12 employees engaged in repair and service opera-
5 Wliile Respondent's body shop labor gross profits went to an all-time high of $6,753
in 1959 and then dropped back down to $5,379 in 1960, this figure was considerably higher
than the $3,906 figure which was the figure in 1958, and in this sense the long-term trend
of Respondent's gross profits from the sale of body shop labor was upward
0It is possible that Edgar Loper, Respondent's used car reconditioner, and Edmund
Morelli, who prepared new cars for delivery and acted as janitor also, should not be re-
garded as being engaged in service operations, even though Respondent's reports to the
Ford Motor Company include them in this category However, even if Loper and
Morelli are eliminated as service employees, Respondent still achieved a substantially
greater return, on a per-employee basis, from the sale of body shop labor than it did
from its repair and service labor.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions in 1959 , as compared with an average of less than 4 employees doing body and
paint work .7 Yet Respondent's gross profits from the sale of the labor of the less
than 4 men in the body shop amounted about 70 percent of his gross profits from,
the sale of labor of the 11 or more men performing repair and service work, amount-
ing to $6,753 for the body shop as compared with $9,630 for repair and service work.
Even if Loper and Morelli are excluded from consideration on the theory that their
labor is chargeable to other operations, Respondent grossed, upon a per employee
basis, well over half again as much from the sale of body shop labor as from the
sale of repair and service labor.
In view of the considerable extent of the disproportion between Respondent's gross
profits from his body shop operations and from his repair and service operations,
upon a per-employee basis, it is not unreasonable to accept Respondent's comparative
gross,profit figures for the sale of labor in the two departments as a rough guide to
Respondent's net profit from the two operations. These gross-profit figures do not
reflect the deduction of such overhead expenses as rent, taxes, insurance, interest,
heat, light, telephone, and clerical expenses. However, in my opinion Respondent's
overhead expenses for each employee engaged in body shop work would tend to be
proportionate to his overhead expenses in running his repair and service operations,
per employee performing such work, with the exception of rent and related items.
While Respondent's overhead expenses for these items might tend to be higher for a
body and paint shop than in repair and service operations, on a per-employee basis,
because of the possibly larger space requirements of a body and paint shop, they
would not be sufficiently higher, in view of the extent of the disproportion in favor
of the body shop, to impair the use of Respondent's gross^profit figures as a basis for
comparing the net profitability of the two operations.
The gross profit figures above discussed indicate that the body shop was contrib-
uting substantially more net profits to Respondent than was his repair and service
department, upon a per-employee basis. While the total contribution of the body
shop was less than that of the repair and service and the parts and accessories de-
partments, Respondent's other two profitable departments, the body shop contribu-
tion was nevertheless substantial, and pro tanto reduced Respondent's large losses in
his vehicle sales operations. In light of these figures, and since one who is losing
money in large sums in one phase of his operations does not normally abandon an-
other phase which is substantially curtailing his overall losses, I cannot accept Re-
spondent's testimony that he decided to close the body shop primarily because for
several years the body shop had failed to make a satisfactory contribution to the
whole of his service and sales operations.
As noted above, Respondent suggests that the difficulties of adequately supervising
his body shop operations because of its basement location and Service Manager
Davey's primary responsibility to oversee the first-floor repair and service operations
was a factor in his decision to close the body shop. The fact is, however, that this
situation had existed since Jack Minella, Respondent's last full-time supervisor in the
body shop, left in September 1958. Phillip Peterson commenced working in the
body shop early in January 1959 and had acted as leadman there . It was during
Peterson's first year in the body shop, 1959, that the gross profits of the shop reached
an all-.time high. As noted above, the longterm upward trend of the gross profits of
the body shop continued in 1960 despite a drop from the abnormally high figure
reached in 1959. In view of the fact that Respondent had tolerated this situation
for over 2 years without doing anything about it, and acted only after being informed
that all his body shop employees had designated the Union as their bargaining agent,
Respondent's suggestion that these asserted supervision difficulties were a contrib-
uting factor in Respondent's decision to close the body shop is rejected.
As noted above, Respondent stresses discussions with Jack Minella about his
leasing out the body shop, apparently in an effort to show that the decision to close
was not a spur-of-the-moment decision. The record shows that on one occasion in
October and another in November 1960, Respondent discussed with Jack Minella the
possibility of his leasing the body shop space. However, as a result of the many
complications connected with such a venture, such as the questions of how to handle
the billing and how to divide the parking space between them, no agreement was
reached by the end of the year. After that, Minella heard about the Union and lost
interest in the project . While these two discussions indicate that Respondent , before
the advent of the Union, was desirous of improving the situation in regard to the
While Respondent's reports to the Ford Motor Company indicate that it employed but
three men in the body shop throughout 1959 , I find, in accordance with the testimony of
Phillip Peterson , leadman in the body shop , that Respondent had four men in the body
shop for 7 or 8 months of 1959.
KINGSFORD MOTOR CAR COMPANY 7191
body shop, they do not show that Respondent contemplated abandoning the opera-
tions altogether. There is a considerable difference between leasing of the body shop,
and the outright discontinuance of body shop operations. Under a lease arrange-
ment, ,the Respondent would have received some return for the use of the body shop,
space in the basement of the Kingsford garage. With the elimination of body shop,
Respondent not only suffered the loss of profits formerly derived from its operations,
but at the same time continued to have to bear the burden of paying the overhead
expenses on the idle body shop.
C. The discharges in the parts department
1. The discharge of Michael Bergagnini on January 27
Bergagnini was hired in the parts department early in October 1960 to keep the-
looseleaf books and catalogues up to date, and generally to help out in the depart-
ment. At the time Bergagnini was hired he was told by Trudell, the supervisor in the
department, that it would be good experience for him and that he would have some-
thing to look forward to. Bergagnini's hiring brought the number of employees in-
the parts department to four, including the supervisor. For the past 28 months
Respondent had had only three employees altogether in the parts department.
About January 24, 1961, Bergagnini observed Respondent's wrecker tow a pickup,
truck belonging to Miller Plumbing & Heating Company to the back of Respondent's
repair shop. The front end of the truck had been damaged in an accident. Later
that day, Bergagnim saw Jack Minella, the proprietor of one of the local body shops,
apparently making out an estimate as to the cost of doing the bodywork required.
On the next day Jack Minella came and towed the Miller truck away.
On the following day, January 26, Davey, the service manager, came up to
Bergagnini at the window of the parts department, handed him an estimate covering
the repairs to the Miller truck which had been prepared on an estimate form of
Jack's Body Shop, and directed him to copy this estimate "word for word" on a
Kingsford estimate form which he handed Bergagnini at the same time. Bergagnini
replied "that it was body shop business and that [he] had no concern with the body
shop especially since we didn't have a body shop any more." Davey thereupon,
admonished Bergagnini as follows: "If you like working here, you'll do it."
The next afternoon at 4:40 p m., Trudell called Bergagnini into his office and told
him that General Manager Carl Minella "had called him up and told him to tell'
[Bergagnini] not to come to work tomorrow." Trudell did not give Bergagnini any
explanation for his termination. Trudell did say, however, that "he was sorry but
there was nothing he could do about it." Bergagnini immediately called General"
Manager Carl Minella on the telephone and asked him why he had been laid off.
Minella replied that "there were too many men in the stock room" and hastily hung
up the telephone.
2. The discharge of Robert L. Valerio on February 11, 1961
Valerio, after working in Respondent's parts department for 21/z years, quit in
May 1959, because Respondent refused to give him a wage increase. In September
1960, Valerio was rehired in the parts department. He worked until February 11,_
1961. About 5 minutes before closing time on that day Supervisor Trudell ap-
proached him and said "he was sorry he had bad news for [him]. Mr. Minella had"
told him he had to let [Valerio] go." Trudell then added that it would be a tempo-
rary layoff until business picked up.
About 10 days later Valerio went back and questioned Trudell about his chances
of being called back to work. Trudell replied that "he didn't think they would be
calling anybody back until this Union bit was settled."
The union authorization certificates of both Bergagnini and Valerio were received
by Respondent on January 6, 1961.
3. Respondent's explanation for the layoff of Bergagnini and Valero
When questioned by counsel for the General Counsel as to his reasons for the
layoffs in the parts department, Respondent testified that one of the reasons was the,
necessity of bringing the number of employees in the parts department closer to the
number required by the volume of business being done in the parts department.
The two men in question were chosen, according to Respondent, because they had
the least seniority in the department. As Respondent further testified, his attorney
had previously discussed with him the advisability of making the layoffs on the basis-
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of seniority. Another reason, as Respondent in effect testified, was that he was
facing union proposals which he felt that he could not meet.8
Respondent's records show that since the end of 1954, Respondent has regularly
had four employees in the parts department, including Supervisor Trudell, with the
exception of the 28-month period ending in September 1960, during which time
Respondent had only three employees in the department. When Bergagnini was
hired, this brought the size of the parts department staff back to the level which had
existed in 1955, 1956, 1957, and the first few months of 1958. Respondent's gross
profits from the parts department at the time Bergagnini was added to the staff
about the first of October were averaging about $3,200 per month.
At the time Bergagnini was laid off on January 27, Respondent had not yet had
an opportunity to review its records for January. As Respondent testified, these
records are not completed until the first part of the following month. Respondent's
gross profits from the parts department for December 1961, the last month for
which figures were available at the time of Bergagnini's layoff, were $3,672, one
of the highest figures recorded by Respondent since 1954. Respondent's average
monthly gross profits from his parts department for the last 3 months of 1960 were
$3,233 per month, slightly higher than the average being achieved at the time
Bergagnini was hired.
When Valerio was laid off early in February 1961, Respondent had experienced
just 1 low month in the parts department. In January 1961, Respondent's gross
profit from the operation of the parts department was $2,259 as compared with
the average in the preceding 3 months of $3,233 per month. However, Respondent
had experienced wide fluctuations in the gross profits from the parts department in
the past. Based on past experience, 1 month's drop was not decisive of a trend.
In 6 different months during the 1955-1958 period during which Respondent had
four employees in the parts department, Respondent's gross profits dropped to
below $2,300; yet Respondent did not reduce his parts department staff during any
of these months by even one man, let alone two. And it should be borne in mind
that the low levels of gross profits from the parts department in January and
February 1961, to some extent reflected the loss of profits arising out of the discon-
tinuance of the body shop in January.
Since ,the layoffs Respondent has had one of the female clerical employees come
down to the parts department to do bookwork, change catalogues, make parts and
price number changes, and add new material to the books. On each occasion on
which she would visit the parts department she would spend about 2 hours.
Customers and mechanics seeking to obtain parts from the parts department since
the layoffs have had to wait in line longer to be waited on. Whereas, before the
layoffs there would ordinarily be only one mechanic waiting in line at the
mechanics' window for parts, thereafter two, or three at times, would be waiting in
line.
D. The discharge of Joseph Selle on February 10, 1961
1. The relevant facts
Selle was hired by Respondent in March 1953 and worked steadily all during this
period, with the exception of 2 months during which he worked part time. For the
first 3i years of his employment Selle worked at the downtown garage washing and
readying new cars for delivery, cleaning up used cars, and doing the janitorial work
around the downtown garage and office.
In the latter part of 1956, Selle was transferred to the Kingsford garage and Glen
Beitel, another long-time employee of Respondent's, sent from the Kingsford garage
to take over some of Selle's duties and to take on some additional ones, including
oiling and greasing cars. Selle continued to spend a day or so a week at the Iron
Mountain garage, cleaning up the office and the garage. After March 1959, Selle
spent full time at the Kingsford garage. A new employee, Edmund Morelli, was
hired at this time to take over the janitorial duties previously performed by Selle,
to wash and prepare new cars for sale, and to assist Beitel in his lubrication and
other light servicing operations.
At the Kingsford garage Selle commenced working on the grease rack, greasing
and changing oil in cars, installing mufflers and tailpipes and universal joints, and
e Subsequently, Respondent acknowledged that he had received no union demands at
this time These were not received until he received the Union's proposed contract which
was mailed to him on March 20, 1961. However, as Respondent explained, he naturally
assumed that the Union 's wage proposals 'would be in excess of what he was paying
the men.
KINGSFORD MOTOR CAR COMPANY 721
adjusting the bands on automatic transmissions. When Selle first started working
at the Kingsford garage he did 90 percent of the undercoating work on new cars.
Toward the end of 1960, however, this work had dropped off considerably and Joe
Tripp, one of the body shop employees, was taking care of all of it. Such shifting of
employees from one duty to another was a common practice at Respndent's estab-
lishment. In addition to these duties, Selle, in effect, served as a general utility man
around the Kingsford garage, doing the necessary janitorial work, tending the fur-
nace, driving Respondent's wrecker, and running around for parts.
According to Service Manager Davey, Selle was a good worker who could be
depended upon to do work in his field without requiring undue supervision.
At 4:20 p.m. on February 10, 1961, Service Manager Davey summoned Selle to his
service booth and told him, "I'm sorry but I have to let you go." Davey did not
volunteer any explanation and Selle did not ask for one.
Earlier that afternoon Respondent had instructed Davey that Selle "was through
as of that afternoon." He did not give Davey any explanation for his action in
regard to Selle. Respondent had not previously discussed with Davey terminating
Selle.
Selle was one of those employees whose bargaining authorization certifications
was submitted to Respondent on January 3, 1961. Morelli, who subsequently took
over the duties formerly performed by Selle at the downtown garage, was not among
the employees whose certifications were furnished Respondent.
2. Respondent's contention regarding Selle's discharge
Respondent asserts that Selle was not discharged but was merely laid off for lack
of work. However, neither the testimony of Selle nor of Service Manager Davey,
who notified Selle of his termination, supports this contention. According to Selle's
credited testimony, Davey merely told him, "I'm sorry but I have to let you go."
Davey's version of this conversation, that he had told Selle that "his services were
through as of that evening," is not inconsistent with Selle's credited testimony. And
it is undisputed that Selle was given no explanation for his termination. In the
case of an able and experienced employee of 8 years' service, I find it unlikely that
Respondent, or at least Serivce Manager Davey, would not have attempted to soften
the blow by informing Selle, that he was being laid off only temporarily, if such was
the case. Accordingly, I reject Respondent's contention that Selle was merely laid
off.
In support of his contention that a lack of work was responsible for Selle's ter-
mination, Respondent testified that the undercoating work which Selle had been
doing had dropped to almost nothing, that work was slow in the lubrication depart-
ment, and that Selle was not qualified as an all-around mechanic. Respondent also
points out that due to the low volume of work in the service department, it became
necessary after Selle's layoff to reduce the hours of the mechanics from 44 to 40
per week, and to lay off one of the mechanics for 9 days.
The figures as to the gross profits from Respondent's various operations which
were introduced into evidence by the General Counsel establish that the volume of
Respondent's repair and service work dropped substantially in January 1961, and to
an even greater extent in February 1961. Respondent, however, could not have
been aware of the latter drop when he had Selle terminated on February 10, 1961.
After Selle's layoff, his janitorial duties were performed by William Pipp, a me-
chanic and wheel alignment specialist. Other mechanics handled the lubrication,
exhaust system, and universal joint work formerly done by Selle on the grease rack.
Beitel came over from the downtown garage to take care of the undercoating work
previously done by Selle. Loper, the used-car reconditioner, also did some of Selle's
grease-rack work and, in addition, did the running for parts formerly done by Selle.
As a consequence, as he credibly testified, he has not been able to spend as much
time on used cars as he previouslyhad been doing.
Respondent defended his retention of nonmember Morelli in preference to union
member Selle on the grounds that Morelli was a better man and a more versatile
workers Morelli, as found above, was the employee with 6 years less seniority than
Selle, who took over Selle's old duties at the downtown garage when he was hired
in 1959. Respondent did not give the basis for his conclusion that Morelli was the
better worker. With regard to the comparative versatility of the two men, from
6 When first questioned about his retention of Morelli, Respondent was asked, "Could
he (Selle) do all of the work that Morelli is doing now 9" Respondent's reply was, "I
think he could but perhaps not to my satisfaction."
634449-62-vol 135-47
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the testimony as to the various specific kinds of duties Selle performed at both
garages, it appears that he could perform a wider variety of more highly skilled op-
erations than Morelli. Later on, when considering the Union 's specific wage de-
mands, Respondent , in a listing of the employees and the Union 's proposed rates
for each , classified Morelli as a janitor , who would be entitled under the Union's
requested wage scale to an hourly wage of $1 .94. At the same time Respondent
allocated Selle to the $2.30 per hour bracket which is the greaser or apprentice-
mechanic rate.
Davey, who was Selle's immediate supervisor , regarded Selle as a good worker.
Davey was not consulted by Respondent in connection with the discharge of Selle,
although he apparently was in a better position than Respondent to appraise Selle's
job qualifications since Davey regularly observed Selle at work at the Kingsford
garage. Respondent , whose office was at the downtown garage , had no such op-
portunity.
E. Respondent 's preelection conduct
1. Introductory statement
On March 20 , 1961, while its representation petition was still pending before the
Board, the Union mailed Respondent a copy of a proposed contract for his considera-
tion . Appended to it was a proposed wage scale for the various categories of Re-
spondent 's employees which was considerably in excess of his wage scale at the
time. In the letter accompanying the proposed contract , the Union , protesting Re-
spondent 's asserted discriminatory treatment of seven employees , urged the immedi-
ate commencement of bargaining negotiations and suggested the possibility of strike
action to secure recognition of the Union.
As stated above, on March 21 , 1961, the Board issued its decision in the repre-
sentation case directing that the Regional Director conduct an election among all
Respondent 's shop employees at its Kingsford and downtown garages, including the
parts department employees . Pursuant thereto the Regional Director issued a
notice of election to be held at the Kingsford garage on April 5, 1961.
2. General Manager Minella 's statement to Beitel on April 1
On Saturday , April 1 , 4 days before the scheduled National Labor Relations Board
election , Glen Beitel accompanied General Manager Carl Minella on a road test of
his car . On this occasion Minella brought up the subject of the election . Minella
first referred to the State election which was to be held the first part of the following
week. Then , as Beitel credibly testified, the following conversation ensued:
We talked about the politicians that were running and which were good ones
and then he (Minella ) said , "There 's another election coming up in a
day or two after this state election," . . . and he says "I'm not telling you how
to vote ," but he said "If the Union wins we'll be all out of a job ," he says. .. .
All I said was "Yeah."
3. Respondent's talk to the employees on April 4
Respondent scheduled a meeting of his employees for 7:30 p .m. on April 4, 1961,
the evening before the election . The supervisors notified the employees of the
meeting. All the employees attended with the exception of the clerical employees,
one of the salesmen, and Loper , the used-car man . Respondent gave quite a lengthy
talk on this occasion , the purpose of which, as Respondent admitted , was to convince
his employees to vote against the Union in the election.
Respondent opened his talk by referring to the financial losses which he had
suffered in every year since 1955 . He mentioned his difficulties in raising money
to meet the payroll and described at length how he had had to liquidate various
assets and borrow from numerous sources in order to do so . Respondent then sought
graphically to demonstrate the nature of his financial problems by referring to his
"wash-out sheets ," which he had with him . These are records kept by Respondent
on which are recorded the gross profits or losses on the whole series of transactions
involving first, the sale of a new car , and then all of the sales of used cars taken in
trade not only on the sale of the original new car but also on the sale of the suc-
cessive trade-ins.lo Respondent discussed in detail various series of specific trans-
actions as shown by "wash-out" sheets , picked at random from his records of 1960
sales, pointing out the losses and profits , if any, involved.
10 It may take the sale of a series of four or more trade-ins before the "wash-out"
occurs, i.e ., when Respondent finally sells a trade-in without having to accept a lesser
valued used car as part payment.
KINGSFORD MOTOR CAR COMPANY 723
Respondent asked the men why they had picked out the Teamsters Union and
pointed to newspaper clippings relating to the doings of the Teamsters Union.
Respondent went on to say that he had sold a parcel of land to a friend for $8,000
and that the Teamsters Union had paid $40,000 for an inferior piece of property.
He added that the Union had squandered its funds buying tools with which to
improve the property, buying twice as many as were necessary. Respondent pointed
out that the source of the funds which were thus being wasted was their union dues,
and the dues from other locals also.
Respondent then mentioned that he had received a proposed contract from the
Union together with a letter suggesting the possibility of a strike. Respondent dis-
cussed various provisions of the contract. He criticized the successorship clause
which he asserted would adversely affect his chances of selling the business. With
regard to the Union's proposed wage scale, Respondent pointed out that if he paid
the employees the union scale and granted the Union's pension proposal, he would
have to raise wages 70 percent and double his charges to his customers, which his
customers would not stand for. Respondent then stated that regardless of how
the election turned out, he would "not sign a contract with the Union," that "before
he'd sign ,a contract he would move to Arizona and sell real estate." At this point
Respondent added that if he did sell the business to younger men, "they would
probably not take up some of the older men that are now employed." 11
When Respondent asked whether there were any questions, Service Manager Davey,
spoke up and said that "he thought a Union would be all right if it would be just a
Union in the shop and then if there was any benefit to be made or to be shared then it
would be shared with just the employees of the Union instead of having any of it
go out to carry on or take care of a large Union."
4. General Manager Minella's second statement to Beitel
on the morning of the election
The election was scheduled to be held between 11 and 11:30 a.m. on April 5, 1961.
Between 9 and 9 : 30 a.m. Minella approached Beitel a second time about the election.
According to Beitel's credited and uncontradicted testimony , the following occurred:
Well, first I noticed he (Minella) was pacing back and forth between his office
and the wash rack and about twice or three times and on the third time he came
to go down to the basement-way and he stopped at the basement -way doorway
and he had motioned to me to come over , which I did , and he asked me, he said
"I'm not telling you how to vote," he says , "but the old man-referring to Mr.
Kingsford-is in a bad financial state," he says , "and we'll have to close down
and be all out of a job, but I'm not telling you how to vote." I says, "O.K., Carl,"
and that's all I said to him.
"The above findings based on the credited and mutually corroborative testimony of
Glen Beitel and Alvin D. Peterson Respondent, when asked whether he had told the
employees that he would not sign any contract with the Union, answered as follows:
"I think probably I said I would not sign that contract . . . In the form in which it
was presented." The testimony of the employees is to the effect that Respondent said
that he would not sign a contract. Both Beitel and Alvin Peterson adhered to their
testimony to this effect despite vigorous cross-examination . While Respondent denied
having discussed "the business of this shop going out of business ," he admitted that he
had said, after stating that the Union 's demands would have required him to double his
charges to his customers, that the effect would be to "drive all his customers away and
[be] might as well close his doors ." With respect to the testimony about "going back to
Arizona," Respondent testified as follows:
I believe that I pointed out I might just as well have stayed in Arizona where I
was running a 36,000 -acre ranch and 15 dudes rather successfully along with 600
head of White Face, which I had a damned sight sooner run than the 15 dudes, and
it was in Arizona that I dabbled a little bit in real estate and I still have some real
estate in Arizona.
When asked why he had made the reference to going back to Arizona, Respondent replied,
"Because I thought there might be a question in the minds of some of the employees as
to what I might do " Thus the testimony of Respondent and the employees differs mainly
in the matter of emphasis . Respondent in his testimony generally exhibited a very poor
memory, even about important events. In my opinion the testimony of the two employees,
which is quite detailed and precise, contains a more accurate presentation of the above
portions of Respondent 's talk to the employees.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. Conclusions concerning the unfair labor practices
1. The sequence of events in broad outline
On January 6, 1961 , Respondent received from the Union the notification that a
majority of his employees had designated the Union to act as their collective-
bargaining agent, together with a list of the employees which it represented. On the
list were all of the nonsupervisory employees in the body shop and in the parts
department . When Respondent declined to recognize the Union without an election,
the Union filed a representation petition with the Board . On January 16, the Board's
Regional Director scheduled a hearing in the representation case for January 24,
1961. On January 19, Respondent abruptly decided to discontinue his body shop
operations, and the three union members in this department were discharged as of
January 21.
Union member Bergagnini , one of the parts department employees , was suddenly
discharged on January 27 after a minor clash with Supervisor Davey on the preceding
day over recopying an estimate for bodywork in the course of which he impliedly
questioned Respondent's action in closing the body shop and discharging the three
body shop employees. On February 10, Respondent abruptly laid off union member
Selle, a service department employee of almost 8 years ' standing, bypassing in the
process nonmember Morelli , who had taken over Selle's old job at the downtown
garage and who had been employed by Respondent less than 2 years. The day after
Selle's discharge Respondent laid off Valerio, another employee in the parts
department.
Thus, within a 2-week period ending with Valerio 's layoff on February 11, and at
a time when Respondent was aware that a National Labor Relations Board election
was in the offing, Respondent eliminated from his payroll 6 of the 11 employees whose
certificates of union membership had been furnished him on January 6.
A few days before the April election , and again less than 2 hours before the election,
General Manager Minella threatened Glen Beitel that if "the Union wins, we'll be all
out of a job ." And the night before the election Respondent summoned the employees
to the garage after working hours where he addressed them at length . In the course
of his talk Respondent disparaged the Union , questioned the employees as to why
they had selected the Teamsters Union, and warned that regardless of how the election
turned out he would not sign a contract with the Union , and that before he would do
so he would sell the business and move to Arizona and sell real estate.
Viewing this sequence of discharges and layoffs in light of Respondent 's opposition
to the representation of his employees by the Union , which is epitomized in Respond-
ent's announcement to the employees just before the election that he would sell the
business before he would sign a contract with the Union , these discharges and lay-
offs appear to be part of a common plan adopted by Respondent to avoid bargaining
with the Union . In view of this fact , Respondent's explanations for the discharges and
layoffs must be scrutinized with care.
2. The closing of the body shop
As stated above, Respondent contends that the closing of the body shop was a
routine business decision compelled by the comparatively poor showing made by that
department. However, the figures as to Respondent's gross profits from the operation
of the body shop as compared with Respondent's repair and service department-and
these figures, as found above, afford a fair basis for comparing the relative profitability
of the two departments-show that Respondent's gross profits derived from the sale
of labor in these departments, were substantially higher, per man, in the body shop
than in the repair and service department, which Respondent left intact at the time
of the closing of the body shop. Futhermore, the gross profits of the body shop have
been in an uptrend for the last 6 years, and although down in 1960 from the extra-
ordinarily high figure reached in 1959, they nevertheless still were almost 40 percent
higher in 1960 than in 1958, Respondent's next highest year In December 1960.
the last full month before the shutdown , Respondent had a very high level of gross
profits in the body shop, the December figure being $665 as compared with an average
monthly gross profit in.1960 of $448.
While business in the body shop dropped off abruptly in January 1961, Respond-
ent's records show that for years he had experienced wide fluctuations in the volume
of business and gross profits in the body shop. In earlier years when the gross
profits of the body shop were considerably less than in 1960, Respondent did nothing
about discontinuing operations. As Respondent himself testified, in making decisions
of this kind, one cannot be blinded by the difficulties of the moment; one has to view
"the overall picture over a period of years."
KINGSFORD MOTOR CAR COMPANY 725
At the same time Respondent discontinued the body shop, he did nothing to reduce
his payroll in the new and used-car sales department and in the clerical department.
Yet, as found above, it was on the sale of new and used cars that Respondent was
losing all his money. The body shop was one of three departments which was off-
setting, in part, Respondent's heavy losses on the sale of new and used cars and trucks.
Nevertheless, Respondent lopped off this one profitable department but did not reduce
the payroll in the department which was primarily responsible for his losses year
after year.
Other circumstances cast doubt on Respondent's contention that the closing of the
body shop was a routine business decision based upon economic considerations. Re-
spondent failed to discuss his decision beforehand with Service Manager Davey, who
was the supervisor over the body shop. When Respondent informed Davey of his
decision to cease operations in the body shop, he did not mention the economic factor
which was assertedly responsible for his decision. Consequently, when Davey, after
notifying the men of Respondent's decision was asked if the organization of the
Union had anything to do with their discharge, he said he did not know, that he was
an "outcast" from the deliberations leading up to the shutdown. After the shutdown
Respondent still needed the services formerly performed in the body shop, and
thereafter had to send his new and used cars needing bodywork out to local body
shops to have the work done. Respondent's customers continued to require the
services of a body shop and Respondent referred them elsewhere to have the work
done.
Under all the circumstances, I cannot accept Respondent's contention that the
decision to close the body shop was a routine business decision made after an appraisal
of the relative profitability of his various departments. I conclude, upon the basis of
Respondent's hostility to the Union, the speed with which he acted after being advised
of the Union's request for recognition, his failure to substantiate his explanation for
his action, and upon .all the circumstances of the case, that Respondent shut down
the body shop and discharged the three body shop employees as part of his efforts to
destroy the Union's majority status. By Respondent's action in this regard he has
violated Section 8(a)(3) and (1) of the Act.12
In reaching this conclusion I have considered all of the cases cited by the parties.
In all of the cases cited by Respondent in which the courts have disapproved Board
findings of violations of Section 8(a) (3) and (1) of the Act based upon a change in,
or discontinuance of certain operations, the courts have held that the change or
discontinuance was made for economic reasons and not to avoid obligations under the
National Labor Relations Act.13 This is true also of Fibreboard Paper Products
Corporation, 130 NLRB 1558, which dealt primarily with the scope of an employer's
duty to bargain collectively under Section 8(a)(5), a wholly different question. In
this case, as hereinabove found, Respondent's claim of an economic basis for the
closing of the body shop was refuted by his own records and other evidence shows
that the discontinuance of the body shop was but one of a series of steps taken by
Respondent to destroy the Union's majority status and defeat the Union in the elec-
tion. In such situations, as the Board and the courts have held, changes or discon-
tinuances of operations resulting in discrimination against employees violate Section
8(a) (3) and (1) of the Act. N.L.R.B. v. Cape County Milling Company, 140 F. 2d
543, 545-546 (C.A. 8); N.L.R.B. v. Brown-Dunkin Company, Inc., 287 F. 2d 17,
19-20 (C.A 10); Stewart Hog Ring Company, Inc., 131 NLRB 310; Unanue &
Sons, Inc., 132 NLRB,522; Fine's Nearby Egg Corporation, ;132 NLRB 1585.
12 In view of my findings as to the extent of Respondent's gross profits from the opera-
tion of the body shop, I do not credit Respondent's further testimony that he was in-
fluenced in his decision to close the body shop by his awareness of the difficult financial
situation in which automobile dealers generally found themselves at that time and the
depressed economic conditions in the Iron Mountain area. While such matters might well
have been factors in Respondent's decision had the body shop in fact not been contributing
at least its share to Respondent's gross profits, they do not have the same significance
where, as here, Respondent was operating the body shop on a steadily improving profitable
basis
18 Mount Hope Finishing Company v . N L R.B., 211 F. 2d 365, 372 (C A. 4) ; N.L R.B. v.
Houston Chronicle Publishing Company, 211 F. 2d 848, 853-855 (C A. 5) ; N L R B. v.
Adkins Transfer Company, 226 F. 2d 324, 327-328 (C.A. 6) ; N.L R B. v J. M Lassing,
et al , d/b/a Consumers Gasoline Stations, 284 F. 2d 781, 782-783 (C.A 6) ; N L R B. v.
Atlanta Coca-Cola Bottling Company, Inc., 293 F. 2d 300 (C.A. 5) ; Jays Foods, Inc., an
Illinois Corporation v. N.L.R B., 292 F. 2d 317 (C.A. 7).
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The layoffs in the parts department
As found above, the day after Bergagnini 's argument with Davey over the copying
of a bodywork estimate in the course of which he impliedly questioned Respondent's
good faith in closing the body shop, Bergagnini was abruptly laid off. This was
on January 27, 1961. Two weeks later Valero was also laid off. With the layoff of
Valerio, Respondent accomplished a 50-percent reduction in the parts department
staff, cutting it to an unprecedented level.
Respondent contends that he was overstaffed in the parts department at the time
of the layoffs and that they were necessary in order to bring the staff down to the
level the current volume of business required. The latest complete figures as to
Respondent's profit position in the parts department at the time of Bargagnim's
layoff on January 27, 1961, were those covering December 1960. The December
figure shows that the department was operating at a very high level that month.
Comparing the figures as to Respondent's gross profits in the parts department for
the last 3 months of 1960 with those for the preceding months, upon which Respondent
presumably based his decision to increase the staff from three to four employees, it
appears that Respondent was still operating at the same high level at the end of
1960 as existed several months before when Respondent added Bergagnini as the
fourth man to the parts department staff. Although, as found above, January was a
low month in the parts department, fluctuations in the volume of Respondent's parts
department business were not unusual, and Respondent's gross profits in the depart-
ment had on various occasions dropped to about the January 1961 levels without
Respondent reducing the staff by even one man, let alone two.
In view of the drastic nature of Respondent's cut in the parts department staff,
Respondent's antipathy to the representation of his employees by the Union, his knowl-
edge that both Bergagnini and Valerio were union members, the timing of their
layoffs and the almost simultaneous layoff of Selle discussed below, and all the
other circumstances of the case, I conclude that the layoffs in the parts department
were of a piece with the closing of the body shop and were aimed at further impairing
the Union's majority status at Respondent's garages. Accordingly, the layoffs of
Bergagnini and Valerio were violative of Section 8 (a) (3) and (1) of the Act.
4 The discharge of Selle
As found above, Selle was discharged on February 10 and Valerio was laid
off from the parts department on February 11. This brought the number of union
members terminated to a total of 6 out of 11 whose membership certifications had
been received by Respondent on February 6.
Selle's discharge, like the termination of all the other whose cases are here involved,
was effected very abruptly upon orders from Respondent himself. Despite Selle's 8
years of loyal service and despite Respondent's subsequent claim that Selle was
merely laid off for lack of work, this was not mentioned to him at the time of his
termination and Selle was not given a word of explanation for the action Respond-
ent had taken against him. Respondent decided upon Selle's discharge without
consulting Service Manager Davey, who was Selle's immediate superior at the
Kingsford garage, and who was therefore in a better position to appraise his job
qualifications and to compare him with other employees. Davey admittedly regarded
Seale as a good worker.
Although Respondent professed to be guided by seniority in selecting parts de-
partment employees for layoff, at the same time Selle was discharged nonmember
Morelli, who had taken over Selle's old job at the downtown garage when he was
hired 2 years earlier, was retained in Respondent's employ. As the record discloses,
it was Respondent's practice to transfer employees from one duty to another, and
from one garage to another when necessary.
Respondent's claim that Morelli was a better worker is supported only by Re-
spondent's own general testimony to this effect, and is unsupported by any clarifying
details. As to Respondent's contention that Morelli was a more versatile man, the
testimony as to the various specific tasks performed by each, in my opinion, rebuts
this contention. Furthermore Respondent's subsequent classification of Morelli as
a janitor compared with his classification of Selle as a greaser or an apprentice me-
chanic, tends to refute his testimony that Morelli was a more versatile man. More-
over, in appraising Respondent's explanation for his preferment of Morelli over Selle
it is relevant to consider the fact that the figures as to the gross profits from the sale
of labor in the body shop thoroughly refute Respondent's explanation for his dis-
continuance of body shop operations. The impeachment of Respondent's explana-
tion on the body shop phase of the case tends to cast doubt on Respondent's explana-
tions on other phases of the case, as well, including the discharge of Selle.
KINGSFORD MOTOR CAR COMPANY 727
Under all the circumstances of the case, including Respondent's disregard of
Selle's seniority, Respondent's opposition to the employees' representation by the
Union, and the timing of the various terminations, I conclude that had Respondent
not been aware that Selle was a union member, he would have retained Selle in
preference to nonmember Morelli who took over Selle's former duties at the down-
town garage, and that the discharge of Selle was but another of the measures taken
by Respondent in an effort to defeat the Union in the coming election. Accordingly
Selle's discharge was violative of Section 8(a)(3) and (1) of the Act.
5. Respondent's interference, restraint, and coercion in violation of Section 8(a) (1)
of the Act
As found above, Respondent in his speech the evening before the election in effect
accused the Union of wasting the dues which it received from its members, warned
that regardless of how the election turned out he would not sign a contract with the
Union, and that he would sell the business and move to Arizona before he would
do so. Respondent also added that if he sold the business the new owners might
not keep the older men on in their employ, thereby making explicit the threat to
the men's jobs which was implicit in his threat to sell the business.
Respondent's declaration that he would not sign a contract with the Union under
any circumstances and his threat to sell the business before he would sign a contract
with the Union, with which his declaration was coupled, unquestionably infringed the
employees' freedom' of organization guaranteed in Section 7 of the Act and were
therefore violative of Section 8(a)(1) of the Act. Respondent's further gratuitous
warning to the effect that if he sold the business the older men might lose their jobs
was likewise coercive and therefore also violative of Section 8(a)(1) of the Act-14
General Manager Minella's warnings on two occasions shortly before the election
to employee Beitel that Respondent would have to "close down" and everyone would
be out of a job in the event the Union won the election, in my opinion, had a co-
ercive impact, and accordingly also constituted a violation of Section 8(a)(1) of
the Act.
Respondent contends that Minella's warnings merely constituted a prediction as
to what was likely to occur under Respondent's existing difficult financial situation
if the Union insisted upon higher labor costs. However, on the first occasion on
which Minella warned Beitel, he did not even mention Respondent's financial diffi-
culties. Hence, Respondent's contention is inapplicable to Minella's first threat to
Beitel. As to the second occasion, on which Minella, after asserting "I'm not telling
you how to vote" and referring to Respondent's "bad financial state," stated "and
we'll have to close down and be all out of a job," in my opinion Minella's bare refer-
ence to Respondent's "bad financial state" did not bring Minella's statement within
the scope of Section 8(c) of the Act covering the "expressing of any views, argu-
ments or opinion." Had Minella articulated the basis for his statement about closing
down, as counsel does in making this contention, then perhaps Minella's statement
might be regarded as an expression of "views, argument or opinion." However,
absent such an explanation, and in view of the fact that the statement was made
the morning after Respondent's speech to the employees in which he flatly stated
that he would not sign a contract with the Union and hostilely warned that loss of
employment would follow a union victory in the election, the reasonable implica-
tion arising out of Minella's statement is that Respondent had in mind closing down
if the Union won the election. So construed, Minella's second threat to Beitel also
constituted interference, restraint, and coercion in violation of Section 8(a)(1) of
the Act.
IV. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, my recom-
mended order will direct him to cease and desist from the unfair labor practices
herein found, and to take certain affirmative action designed to effectuate the policies
of the Act.
My recommended order will also provide that Respondent offer Phillip L. Peterson,
Joseph Tripp, and Evan Larson immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to their seniority and other
is The fact that Respondent thus went out of his way to bring home to the men the
adverse consequences of persisting in representation by the Union could not fail to impress
upon them Respondent' s animus toward the Union In these circumstances, I must reject
the suggestion that Respondent throughout his talk was merely expressing his opinion as
to the economic consequences of attempting to operate under the scale of wages which he
feared the Union would insist upon.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights and privileges, resuming his body and paint-shop operations to the extent neces-
sary to afford them such reinstatement, and that Respondent similarly reinstate
Michael Bergagnini, Robert L. Valerio, and Joseph Selle to their former or substan-
tially equivalent positions. My recommended order will further provide that each
of the above-named, employees be made whole for any loss of pay he may have suf-
fered by reason of Respondent's discrimination against him by payment to him of
a sum of money equal to that which he would normally have earned as compensa-
tion from the date of the discrimination to the date of the offer of reinstatement,
less his net earnings during said period, and in the manner set out in F. W. Wool-
worth Company, 90 NLRB 289.
My recommended order will also direct that Respondent preserve and make
available to the Board, upon request, all payroll and other records which have a
bearing upon Respondent's reinstatement and backpay obligations under the terms
of my recommended order.
The unfair labor practices herein found are such as to indicate an attitude of
opposition to the purposes of the Act generally, and accordingly, the commission of
these and other unfair labor practices in the future^is reasonably to be anticipated
from such past conduct. In these circumstances, the preventive purposes of the
Act may be thwarted unless the remedy is coextensive with the threat. To effectuate
the policies of the Act, therefore, it will be provided that Respondent cease and
desist from infringing in any manner upon the statutory rights of its employees.
CONCLUSIONS OF LAW
1. By discharging Phillip L. Peterson, Joseph Tripp, and Evan Larson on Janu-
ary 21, 1961, by laying off Michael Bergagmni and Robert L. Valerio on January 27
and February 11, 1961, respectively, and by discharging Joseph Selle on February 10,
1961, E. S. Kingsford, doing business as Kingsford Motor Car Company, has dis-
criminated in regard to their hire and tenure of employment, thereby discouraging
membership in Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Local No. 328, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, in violation of Section 8(a)(3) and (1) of the Act.
2. By stating that he would not under any circumstances sign a contract with the
Union and by threatening to sell or close his business and that loss of employment
would follow if the employees persisted in their union activities, E. S. Kingsford,
doing business as Kingsford Motor Car Company, has interfered with, restrained,
and coerced employees in the exercise of the rights guaranteed in Section 7 of the
Act, in violation of Section 8(a) (1) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
REPORT ON CHALLENGED BALLOTS
Phillip L. Peterson, Evan Larson, Michael Bergagnini, Joseph Selle, and Robert
Valerio, the individuals whose ballots were challenged in the election conducted by
the Regional Director on April 5, 1961, in Case No. 18-RC-4580, were or had been
employed as shop or parts department employees at Respondent 's Kingsford, Michi-
gan, garage , and hence were in the appropriate unit in which the Board directed an
election in Case No. 18-RC-4580, and were therefore entitled to vote in the election
if they retained their employee status as of the payroll period immediately preceding
March 21, 1961, the payroll period designated by the Board in its decision and
direction of election as governing the eligibility of employees to vote in the election.
Having concluded that these five individuals had been discriminatorily discharged or
laid off in violation of Section 8(a) (3) of the Act, I find that they retained their status
as employees of Respondent by virtue of Section 2(3) of the Act, and were entitled
to vote in the election. Accordingly, I recommend that the Board direct that the
Regional Director for the Eighteenth Region shall, upon suitable notice to the parties,
open and count the ballots of Phillip L . Peterson , Evan Larson , Michael Bergagnini,
Robert L. Valerio, and Joseph Selle, and thereafter prepare and cause to be served
upon the parties a revised tally of ballots, including therein the count of said
challenged ballots.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record and pursuant to
Section 10(c) of the Act, the Trial Examiner hereby orders that the Respondent,
E. S. Kingsford , doing business as Kingsford Motor Car Company, his agents, suc-
cessors, and assigns, shall:
KINGSFORD MOTOR CAR COMPANY 729
1. Cease and desist from:
(a) Discouraging membership in Teamsters , Chauffeurs , Warehousemen & Helpers
of America, Local No. 328, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or in any other labor organization of his em-
ployees, by discharging, laying off, or in any other manner discriminating in regard
to their hire or tenure of employment or any term or condition of employment.
(b) Threatening employees that he will sell or close the business or take other
retalitatory action against employees for having engaged in union activities.
(c) Threatening employees that he will not sign a contract with the Union under any
circumstances.
(d) In any other manner interfering with , restraining , or coercing his employees
in the exercise of the right to self -organization , to form labor organizations , to join
or assist the above-named or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in any other concerted
activities for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organization as a con-
dition of employment, as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer Phillip L. Peterson, Evan Larson, and Joseph Tripp immediate and full
reinstatement to their former or substantially equivalent positions , without prejudice
to their seniority or other rights and privileges, resuming his body and paint shop oper-
ations to the extent necessary to afford them such reinstatement , and make the above-
named employees whole for any loss of pay suffered by them in the manner set forth
above in the section entitled "The Remedy."
(b) Offer Michael Bergagnini, Robert L. Valerio, and Joseph Selle immediate and
full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and make each of them
whole for any loss of pay he may have suffered as a result of his discharge or layoff,
in the manner set forth above in the section entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records which have a bearing upon
Respondent's reinstatement and backpay obligations under this Recommended Order.
(d) Post at his garages at Kingsford and Iron Mountain , Michigan , copies of the
notice attached hereto marked "Appendix." Copies of said notice, to be furnished
by the Regional Director for the Eighteenth Region, after being duly signed by an
authorized representative of Respondent , shall be posted by Respondent immediately
upon receipt thereof , and be maintained by him for a period of 60 consecutive days
thereafter , in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered , defaced , or covered by any other material.
(e) Notify the Regional Director for the Eighteenth Region, in writing, within 20
days from the receipt of this Intermediate Report and Recommended Order, what
steps he has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, Local No. 328, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other
labor organization of our employees, by discharging them or in any other
manner discriminating against them in regard to their hire and tenure of
employment or any term or condition of employment.
WE WILL NOT threaten employees that we will sell or close the business or
take other retaliatory action against them for engaging in union activities.
WE WILL NOT threaten employees that we will not sign a contract with a
union under any circumstances.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor organi-
zations, to join or assist Teamsters, Chauffeurs, Warehousemen & Helpers of
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, Local No. 328, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, or any other labor organization, to
bargain collectively through representatives of their own choosing , and to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection , as guaranteed in Section 7 of the Act, or to refrain
from any and all such activities , except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a
condition of employment , as authorized in Section 8(a)(3) of the Act.
WE WILL offer to Phillip L. Peterson , Evan Larson, Joseph Tripp, Michael
Bergagnini , Robert L. Valerio, and Joseph Selle reinstatement to their former or
substantially equivalent positions , without prejudice to their seniority or other
rights and privileges , and we will make them whole for any loss of pay suffered
as a result of their discharge or layoff.
All our employees are free to become or remain or to refrain from becoming or
remaining members of Teamsters , Chauffeurs , Warehousemen & Helpers of America,
Local No. 328, International Brotherhood of Teamsters , Chauffeurs , Warehousemen
& Helpers of America , or any other labor organization.
E. S. KINGSFORD , DOING BUSINESS AS KINGSFORD
MOTOR CAR COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Reliance Steel Products Company and District 50, United Mine
Workers of America and United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada, AFL-CIO, Metal Trades
Division , Local Union 372, Interested Party
Reliance Steel Products Company and District 50, United Mine
Workers of America, Petitioner . Cases Nos. 10-CA-4660 and
10-RC-4889. January 31, 1962
DECISION AND ORDER
On August 10, 1961, Trial Examiner Robert E. Mullin issued his
Intermediate Report in Case No. 10-CA-4660, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate
Report attached hereto.' The Trial Examiner also found that the
Respondent did not engage in certain unfair labor practices and
'The Respondent contends that the amended charges were solicited, or at least sug-
gested , by a Board agent and that the Board cannot thus enlarge its own jurisdiction. In
agreement with the Trial Examiner we find that the amended charges were merely proper
particularizations of the violations alleged in the original charge and thus do not constitute
an enlargement of the Board 's "jurisdiction " Moreover , the Respondent made no allega-
tion, and offered no evidence , of any specific impropriety by any Board agent , and there
was thus no "good cause" shown for the production of the NLRB Manual or the testimony
of the Board agent. Hickman v. Taylor, 329 U.S. 495, 505-512 , Goldman v United
States, 316 U.S. 129, 132; N.L R B. v. Que8t -Shon Mark Brassiere Co., 185 F. 2d 285,
289, 290 ( C.A. 2), cert . denied, 342 U.S 812 This case is therefore clearly distinguish-
able from N . L R B v. Capitol Fish Company, 294 F. 2d 868 ( CA. 5), reversing and
remanding 126 NLRB 980.
135 NLRB No. 75.