Raymond Pearson, Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1956

115 N.L.R.B. 190 (N.L.R.B. 1956)

190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer within the meaning of Section 9 (c) (1) and Section 2 (6)
and (7) of the Act.
4. With regard to the composition of the unit, the parties disagree
only as to whether there are any temporary employees, and if so,
whether they should be included in the unit. In the past, the Em-
ployer has hired employees during its busy season in the late summer
and fall whom it has designated as "temporary employees," informing
them of this status when they were hired. Such employees have not,
in the past, received benefits granted to permanent employees, and
the Employer has made no effort to reemploy the same temporary
employees during its busy season from one year to the next. Al-
though the Union originally desired to bargain for these employees
as part of the certified unit, they have never been covered by the con-
tracts between the parties, in deference to the Employer's desire that
they be excluded.
The Employer stated at the hearing, in October, that it then had no
temporary employees, but that it desires that any such employees as it
may have during the eligibility period be included in the unit and
allowed to vote. The Union opposes their inclusion on the ground
that they have never been included in the contract unit. As the em-
ployment of the temporary employees, if any, is likely to be seasonal
and nonrecurring, we shall exclude them from the unit.
We find, in. agreement with the parties, that the following group of
employees at the Employer's plant in Richmond, Virginia, which con-
forms to the unit covered by prior contracts between the parties consti-
tutes a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act: All employees, ex-
cluding shipping clerks, truckdrivers, office and salaried employees,
.;;janitors, temporary employees, watchmen, assistant foremen, fore-
men, and supervisors as defined in the Act.
[Text of Direction of Election. omitted from publication.]
Raymond Pearson, Inc. and Local 744, International Association
of Machinists , AFL-CIO, and Local 968, International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen and. Helpers,
AFL-CIO, Jointly. Case No. 39-CA-441. January 23, x956
DECISION AND ORDER
On October 26, 1955, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, 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
115 NLRB No. 31.
RAYMOND PEARSON, INC. 191
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent did not violate the Act by discharging W. A.
Lay and recommended that the complaint be dismissed with respect to
that allegation. Thereafter, the Respondent filed exceptions to the
Intermediate Report,and a supporting brief. No exceptions were filed
by the General Counsel or the Union.
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 brief, and the entire record
in the case,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Raymond Pear-
son, Inc., Houston, Texas, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Local 744, International Associa-
tion of Machinists, AFL-CIO, and Local 968, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers, AFL-
CIO, Jointly, or any other labor organization of its employees, by
discriminating in regard to their hire or tenure of employment or any
term or condition of employment.
(b) Interrogating its employees concerning their membership in,
or activities on behalf of, the aforesaid labor organizations, or any
other labor; organization, in a manner constituting interference, re-
straint, or coercion in violation of Section 8 (a) (1) of the Act. •
(c) Threatening its employees with reprisals for engaging in union
activities.
(d) In any other manner, interfering with, restraining, or q'oercing
its employees in the exercise of their right to self-organization, to form,
join, or assist the ,aforesaid labor organizations, or any other labor
organization, to bargain collectively. through representatives of their
own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or,other mutual aid or protection, and to
refrain from any and all such activities except to the extent that such
right may be affected by an agreement requiring membership iii a
labor organization as a condition of employment as authorized in Sec-
tion 8 (a) (3) of the Act.
'The Respondent's request for oral argument is denied because the record and excep-
tions and brief , in our opinion , adequately present the issues and positions of the parties.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole the personal representative of the estate of A. H.
Gullick, deceased, and any other person or persons whose interest
may appear, for any deprivation or loss that they may have suffered
by reason of the Respondent's discrimination against Gullick, in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of back pay due
under the terms of this Order.
(c) Post at its shop at Houston, Texas, copies of the notice attached
hereto'and marked "Appendix A." 2 Copies of said notice, to be fur-
nished by the Regional Director for the Sixteenth Region, shall, after
being duly signed by an authorized representative of the Respondent,,-
be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for a period of sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, as to what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent discriminatorily dis-
charged W. A. Lay.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
93n= a'event that this Order is enforced by a decree of a United States Court of'Appeals,
there shall be substituted foi the words "Pursuant to a Decision and Order" the "wor'ds
"T rsuant to a Decree of the United States Cuuit of Appeals, Enforcing an Order"
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Local 744, Interna-
tional Association of Machinists, AFL-CIO, and Local 968, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen
RAYMOND PEARSON, INC. 193
and Helpers, AFL-CIO, Jointly, or any other labor organization,
by discriminating in regard to the hire or tenure of employment
or any term or condition of employment of any of our employees.
WE WILL NOT interrogate our employees concerning their mem-
bership in, or activities on behalf of, the aforesaid labor organiza
tions, or any other labor organization, in a manner constituting
interference, restraint, or coercion in violation of Section 8 (a) (1)
of the Act.
WE WILL NOT threaten our employees with reprisals for engag-
ing in union activities.
WE WILL NOT in any other manner, interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join the aforesaid labor
organizations, or any other labor organization, to bargain col-
lectively 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, and 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 Sec-
tion 8 (a) (3) of the Act.
WE WILL compensate the estate of A. H. Gullick, deceased, for
any loss suffered by Gulick as a result of the discrimination
against him. ,
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization, except as
that 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 not discriminate in regard to
the hire or tenure of employment or any term or condition of employ-
ment against ,any employee because of membership in or activity on
behalf of any labor organization.
RAYMOND PEARSON, INC.,
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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge having been filed against Raymond Pearson , Inc., herein called the
Respondent, by Local 744, International Association of Machinists , AFL, and Local
968, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers, AFL, Jointly, herein called the Union, the General Counsel issued a com-
390609-56-vol. 115-14
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint alleging that the Respondent had engaged in unfair labor practices within the
meaning of the National Labor Relations Act, 61 Stat. 136, herein called the Act.
The complaint alleged in substance that the Respondent: (1) Violated Section 8 (a)
(1) and (3) of the Act by discharging A. H. Gullick on August 16, 1954, and W. A.
Lay on August 28, 1954, because of their union activities; and (2) further violated
Section 8 (a) (1) since on or about July 21, 1954, by interrogating its employees
concerning their union affiliations and by threatening and warning employees to
refrain from union, membership and activities. The Respondent filed an answer
denying the allegations of the complaint.
Pursuant to notice, a hearing was held between September 7 and 12, 1955, at
Houston, Texas, before the Trial Examiner duly designated by the Chief Trial
Examiner. The General Counsel and the Respondent were represented at the
hearing by counsel and the Union by its representatives. All parties were afforded
full opportunity to examine and cross-examine witnesses and to introduce evidence
bearing on the issues. At the opening of the hearing the Respondent filed a motion
for a more definite statement of the complaint. The motion was denied. At that
time the Respondent also moved for an order striking or dismissing the allegations
of the complaint alleging independent interference, restraint, and coercion, upon the
ground that the threats and interrogation therein referred to were not specifically
alleged in the charge.and, according to the complaint, occurred more than 6 months
prior to the issuance of the complaint. That motion was also denied.' During the
course of the hearing, the General Counsel was allowed over the Respondent's objec-
tion to amend the complaint by adding additional specifications of threats of reprisal
and interrogation ' f the kind generally alleged in the complaint. Motions by the
Respondent to strike certain testimony as outside the scope of the complaint were
denied. At the close of the hearing, the Respondent moved to dismiss the complaint
upon the ground that the evidence was insufficient to show that the Respondent was
engaged in commerce within the meaning of the Act or that it would effectuate the
purposes of the Act to assert jurisdiction over it. Ruling on that motion was
reserved. The motion is now denied for reasons to be stated below. Opportunity
was afforded all parties to argue orally upon the record and to file briefs and
proposed findings and conclusions. After the close of the hearing, the Respondent
and the Union filed briefs which have been considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Raymond Pearson, Inc., which alone is named as Respondent in this proceeding,
and Raymond Pearson Motor Company are separate corporate entities, each organ-
ized under the laws of Texas, with its principal office and place of business located
at Houston, Texas. The Respondent, operating under franchise from tthe Ford
Motor Company, is engaged in the business of selling, at retail, and servicing Ford
automobiles. Raymond Pearson Motor Company, operating under separate fran-
chises from the Ford Motor Company, is engaged in the business of selling, at
retail, and servicing Mercury and Lincoln automobiles. During 1954 both corpora-
tions, although maintaining separate physical establishments (except for a common
body shop) and having separate employee personnel and supervision, were under
common control with precisely the same directors, officers, and stockholders. The
only difference in the corporate management of the 2 corporations was that 1 of the'
2 vice presidents of both corporations was designated as the general manager of
Raymond Pearson, Inc., while the other was designated as the general manager of
Raymond Pearson Motor Company. Such separate designations were made to
comply with the requirement of Ford Motor Company that separate managements
exercise the Ford franchise and the Lincoln-Mercury franchises, respectively.
During the calendar year 1954, Raymond Pearson, Inc., sold automobiles and
other products having an aggregate value of over $6,000,000, of which approxi-
mately $42,000 represented sales made to purchasers outside the State of Texas.
During the same year, Raymond Pearson, Inc., made total purchases of approxi-
mately $5,000,000 of which approximately $4,750,000 represented purchases out of
'The acts of independent interference, restraint, and coercion are alleged in the com-
plaint to have occurred since on or about July 1, 1954. The original charge alleging dis-
crimination against Gullick was filed on August 26, 1954, and was amended on Septem-
ber 16, 1954, to add the name of W. A. Lay. Both the original and amended charges
alleged a violation of Section 8 (a) (1), not only by the discharges but "by other acts
and conduct."
RAYMOND PEARSON, INC. 195
stock in the State of Texas, and approximately $250,000 represented purchases of
merchandise shipped to that corporation directly from points outside the State of
Texas.
Raymond Pearson Motor Company, during the same calendar year, had sales
amounting to over $3,752,000, of which approximately $38,000 were to customers
outside the State of Texas and the balance to customers within that State. That
same year Raymond Pearson Motor Company's total purchases of new automobiles
and parts amounted to over $2,000,000, of which over $1,500,000 represented pur-
chases made and shipped to it from points outside the State of Texas.
Under the Board's applicable standard,2 the interstate business of Raymond Pear-
son, if considered alone, is insufficient to warrant the assertion of jurisdiction, but, if
coupled with that of Raymond Pearson Motor Company, is clearly more than suffi-
cient on the basis of direct interstate inflow alone to warrant such assertion. The
General Counsel contends that for commerce purposes the two corporations, be-
cause of their common control and top management, should be considered a single
employer. With that contention, the Respondent takes issue, asserting that only
the interstate business of the corporate Respondent charged in this case may prop-
erly be considered. That issue has, for me at least, been authoritatively settled
by the finding made by the Board in its Decision and Direction of Elections in Ray-
mond Pearson, Inc., 39-RC-827, and Raymond Pearson Motor Company, 39-RC-
830, issued September 27, 1954 (not reported in printed volumes of Board Decisions
and Orders). The Board in the cited cases, on substantially the same facts as appear
in the record here, found as a fact that "Raymond Pearson, Inc., and Raymond
Pearson Motor Company constitute a single employer engaged in-commerce within
the meaning of the Act and that it will effectuate the policies of the Act to assert
jurisdiction in these cases." I make a like finding of fact in the instant proceeding.
H. THE LABOR ORGANIZATIONS INVOLVED
Local 744; International Association of Machinists , AFL, and Local 968, In-
ternational Brotherhood - of Teamsters , Chauffeurs, Warehousemen and Helpers,
AFL, Jointly, herein called the Union , are labor organizations admitting to member-
ship employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the issues
In May 1954 the Union began an organizational campaign among the Respond-
ent's nonsupervisory and nonclerical employees, numbering approximately 96.
The Union's first employee contact at the plant, and the person who appears to have
been most outstanding among employees in union solicitation activities, was A. H.
Gullick, a shop mechanic. W. A. Lay, another shop mechanic, who along with
Giillick is, alleged in the complaint to have been discriminatorily discharged,' was
also active in organizational work, although his role does not appear to have been
nearly as outstanding as that of Gullick. By July 2 the Union's campaign had pro-
gressed to a point where it was prepared to test its strength in an election. On that .
date the Union, claiming a majority, demanded recognition, which was declined.
On July 7, 1954, the Union filed a representation petition with the Board seeking
certification. A hearing on the petition was held on August 3, 1954. Gullick, Lay,
and one other employee, Nathan C. Carter, attended the hearing as employee-
observers for the Union, having been excused from work for that purpose at the
Union's written request. Gullick was discharged by the Respondent on August 16,
1954, and Lay on August 28, 1954.3 On September 27, 1954, the Board directed
an election.in the representation proceeding instituted by the Union. The,election
was held on October 22, 1954. The Union was defeated by, a vote of 51 to 36,
with 6 challeriged ballots._
Apart from" the discharges of Gullick and Lay, alleged to have been discriminatory
within the meaning of Section 8 (a) (3), the only unfair labor practices alleged in
the complaint consist of threats and interrogation attributed to a single supervisory
official of the Respondent-B. G. Sweeney, the Respondent's service manager, who
was charged with general supervision over all mechanics in the shop. The evidence
relating to the alleged interference, restraint, and coercion of the Respondent, through
Hogue and Knott Supermarkets, 110 NLRB 543.
Cat ter was laid off by the Respondent at a later date, apparently after the election
There is no claim in this case that his layoff was disciiminatory.
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sweeney, will be considered in the subsection of this report immediately below.
Subsequent subsections of the report will treat with the alleged discriminatory
discharges of Gullick and Lay.
B. Interference , restraint, and coercion
To support the independent 8 (a) (1) allegations of the complaint and, more-
over, to show the Respondent's opposition and hostility to union organization, a
matter relevant to the issue of unlawful motivation in the discharges of Gullick and
Lay, the General Counsel called eight witnesses-A. H. Gullick, W. A. Lay, James
Taggert, Frank Glidden, Carl Nack, Jack Pratt, Ruben Wilson, and George L. Bush.
1. Gullick testified: In early July, Sweeney approached Gullick at his work sta-'
tion, stated that he understood the employees were trying to organize a union, asked
Gullick if he "knew anything about that union mess going on in the shop," and
also inquired as to the identity of the leader. Gullick told Sweeney it was true
the employees were attempting to organize, but professed ignorance of who the leader
was. Sweeney asked why the employees wanted a union. Gullick told Sweeney
the employees believed their grievances against the Company could be handled more
effectively if they had an official union representative to act as their spokesman. At
that point Sweeney informed Gullick that some years earlier, before Gullick was
employed, the Respondent had had a "company union" and that it was a "good
union." Sweeney suggested to Gullick that he talk to the employees about a union.
He added that he would be willing to allow the employees the use of a meeting room
in the building and even get them an attorney to draw up a contract Concerning
the Union the employees were seeking to organize, Sweeney declared "there wouldn't
be any union in the shop at all." He went on to say that even if the employees.
succeeded in forming their union, the Respondent could require employees to remove
their tools from the shop and undergo a physical examination before being rehired.
In that connection, Sweeney stressed that one employee, Pope, who because of his'
defective hearing could not meet insurance company requirements, would not be
hired by any other employer. Sweeney further stated that under the Texas law pro-
hibiting a closed shop, the Respondent would be at liberty to hire anyone it wanted,
and that it could then see to it that newly hired employees received preference in the
more desirable work assignments.
Sweeney admitted that he had a conversation with Gullick relating to the Union
about the time testified to by Gullick. According to Sweeney, however, the con-
versation was initiated not by his own interrogation, but by Gullick remarking, "I
understand you think I am the leader of the Union around here ." Sweeney also,
admitted that the subject of a company union was raised . But it was his version that
Gullick brought up the subject by expressing, a desire to revive the old company
federation , and that his own' participation in the discussion was simply to advi'se'
Gullick that as a department head he could have nothing to do with it; to provide
Gullick with the names of two employees who had been officers of the company
union , who still held the old charter , and who could give him all necessary informa-
tion ; and to inform Gullick that he ( Sweeney ) "could possibly get permission for
them to have it there in the building." Sweeney while testifying did not specifically
advert to or deny making the other statements attributed to him by Gullick , but his
testimony may fairly be read as intended to include a general denial . Particularly
bearing in mind Sweeney 's interrogation of other employees concerning the Union at
about this time, as revealed by other credited testimony in this case, I think it far more
likely that the conversation was initiated as testified to by Gullick rather than, by
Sweeney .4 Moreover , I think it improbable that Gullick , who had initiated' union
organization among the Respondent 's employees and was in the forefront of union
activities , would have solicited Sweeney's advice on how to revive the old company
union . On this aspect of the case , Gullick 's testimony was not shaken by vigorous
cross-examination , and oppositely to Sweeney , he left the impression of one attempt-
ing to report the occurrence as best as he recalled it. To the extent their versions
are in conflict , I credited Gullick over Sweeney.
2. Lav testified in substance as follows: On July 3, 1954 , Sweeney summoned him
to his office ; asked him whether the men were trying to form a union in the shop;
4 Sweenev'e testimony at one point that employee Glidden was the only employee whom
he interrogated about the Union is contradictory to testimony he gave on cross-examina-
tion, that (luring the course of the campaign he would ask employees if they heard any-
thing about the Union, just as they would frequently ask him. Sweeney's testimony in
other material respects was replete with contradictions and by his overall testimony he
impressed me as less than reliable.
RAYMOND PEARSON, INC. 197
asked him who gave him authority to form a union; pointed out that the Company
had been good to him and that if he lost his job there he could not obtain work with
any other Houston automobile dealer; told him to tell the other employees in the
shop that there was not going to be any union there and that the Company would
be backed up by the Ford Motor Company and the Houston Automobile Employers
Association; and remarked that he could fool around with the Communists if he
wanted to, but the Union was not going to win. Two weeks later, according to Lay's
further account, while conducting a road test accompanied by Sweeney, Sweeney
again raised the question of the Union; asked what the employees wanted; repeated
his reference to the Union as Communists; stated his understanding that Lay was
sitting at the Union's meetings with the "big shots"; and asked who else was in at-
tendance. On cross-examination Lay added, although he made no mention of it on
direct, that at one point Sweeney declared in substance that if the Union came in
the Respondent would probably close its business and all the men would lose their jobs.
Sweeney denied speaking to Lay about the Union at any time. Lay's account of
the circumstances under which the conversations occurred contained sufficient con-
vincing detail to persuade me that his testimony was not entirely the product of his
imagination, as Sweeney would have it believed. I am convinced that Sweeney did
interrogate Lay about the Union on July 3, and in the course of that and a succeeding
conversation he did indicate to Lay his opposition to union organization. However,
on the basis of his overall testimony, Lay impressed me as one, who, while not wilfully
untruthful, possessed only a hazy recollection of what was said, and who based his
testimony more upon a general impression, confused perhaps with what he had heard
from others, than upon a substantially accurate remembrance of what occurred.
In these circumstances, although not accepting Sweeney's broad denial, I place no
reliance upon the details to which Lay testified, and accept his testimony as establish-
ing only that Sweeney on July 3 summoned Lay to his office for questioning about the
Union and at that time and on a later occasion expressed views in opposition to the
Union.
3. Taggart, a mechanic still employed by the Respondent, testified: In early July
he was summoned by the dispatcher to Sweeney's office. Sweeney interrogated him
as to what he knew about the Union. Sweeney expressed the view that the Union
would never get in, but stated that if it did the Company would close the shop down
and require the employees to go through the formality of being rehired with a
physical examination as a prerequisite. Sweeney stated that some of the men would
be unable to pass because of physical defects, particularly mentioning employee
Pope. Sweeney also added in the same context that the glass and trim departments
of the shop would more than likely be closed down. Sweeney further declared that
since Texas law allowed no closed shop, the Company would be in a position to hire
nonunion employees to do most of the work and to "sideline" the union members.
Sweeney denied discussing the Union with Taggart on any occasion. However,
Taggart's overall testimony and demeanor were such as to invite credence. I am
unable to believe that Taggart, who is still employed by the Respondent under
'Sweeney, would have completely fabricated a story of this kind if it had no basis at
all in fact. I credit Taggart's testimony over Sweeney's denial.
4. Glidden testified concerning a similar interview with Sweeney on July 3, 1954.
His account was as follows:
The dispatcher called me at 12:30 on July 3. I remember the date because
I was leaving on vacation at that time. He told me to go to Mr Sweeney's
office. I walked in, sat down. Mr. Sweeney said, "Frank, what is this busi-
ness I hear about the union coming in the shop?" I said, "Well, Bubba, I
,don't know what you have heard, but it's true, we are trying to organize." He
said, "Well, what do the men want?" I said, "Well, we want a little better
cooperation from the management." . He said, "Well, let me tell you,
we are not going to have a union in this shop." He said, "It was tried be-
fore in 1937 and we will close the doors again to prevent it." I remember
saying that, "Well, now, I don't believe you can legally do that." He said,
"Well, if you do go union, the union men will be gradually worked out and
blackballed in Houston." He said, "I am a member of the Service Manager's
Organization and we can blackball anybody." He cited two cases where the
shop was operating in the red . our radiator man . . . and our glass
man. He said he could farm out shop labor in these two departments and save
money. He also said that if they did close a man could be forced to rehire
and pass a physical, and that he had one case particularly that he knew would
not be able to rehire . . . . He asked me to explain the complaints that we
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had and the grievances. . . Well, we had a short discussion about the advan-
tages and disadvantages of the union. I don't recall word for word everything
that was said.
Sweeney admitted interrogating Glidden concerning union organization, explain-
ing that he singled out Glidden because Glidden had earlier indicated an antiunion
bias. He admitted also that in the course of the conversation mention was made
of the Automobile Dealers Association and of the Service Managers Association, as
well as the failure of organizational efforts in 1937. According to his version, how-
ever, the associations were mentioned not by, him but by Glidden, who, he stated,
expressed the position that employees had as much right to join a union as em-
ployers had to form their own organizations. Sweeney denied making any of
the threats attributed to him by Glidden. Glidden, who is still in the Respondent's
employ and who had no personal interest in the outcome of the case, impressed me
as a forthright witness by his overall testimony. His account of his conversation with
Sweeney had the ring of truth. To the extent that Glidden's version of what occurred
is at variance with that of Sweeney, I accept Glidden's testimony.
5. Nack testified: He was not among the employees called to Sweeney's office
in early July. About 2 or 3 weeks later, however, Sweeney came to the stall where
he was working and engaged him in a conversation about the Union. Sweeney
opened the conversation by asking what good a union would do the employees.
Sweeney mentioned the names of Lay and Pope as employees for whose welfare
the Company had been particularly solicitous, and stated that he could not under-
stand why Lay should be interested in the Union. In the course of the conversa-
tion Sweeney also stated, among other things, that Colonel Pearson would not tolerate
a union and would close his doors before permitting an outside union to come in;
that he did not have to "fool" with the men but could call outlying towns and get
100 replacements if he wanted to; and that he knew everything that went on at the
Union's meetings.
Sweeney denied that any such conversation occurred, but I do not credit his
denial. Nack, still employed by the Respondent and with no direct interest in the
outcome of the case, did not impress me as one who would fabricate an entire
story of this kind out of whole cloth. His testimony on other material issues of
this case disclosed a spirit of fairness, and, unlike that of Sweeney, the absence of
a propensity to stretch the truth to support the position of the side that called him
as a witness. I have no reason to doubt his veracity and accept his testimony as
given.
6. Bush, now as then employed by the Respondent as a toolroom employee, tes-
tified: About July 22, 1954, or shortly thereafter, Sweeney approached him in the
toolroom, stated that he wanted to talk to him about "this union business," and
asked him what he thought about the Union and what he intended to do about it.
In the course of the ensuing conversation, Sweeney indicated that the Respond-
ent was opposed to union organization. Bush's memory was admittedly vague
as to precisely what Sweeney said, but he "believed" that something was said to the
effect that Colonel Pearson would not have a union there.
Sweeney denied that he ever talked to Bush about a union. I do not credit
Sweeney's denial. Bush's testimony as to how the conversation came about con-
tained sufficient convincing detail to satisfy me that some such conversation actually
occurred. However, because of the indefiniteness of Bush's recollection concerning
the details of what was said, I rely on his testimony only to a limited extent-to
support a finding that Sweeney interrogated Bush about the Union and Bush's in-
tentions with regard to it.
7. Wilson, a former employee of the Respondent, testified: Sometime in July
1954, he arranged with Sweeney to have his own car repaired at the shop and to
have the repair bill paid out of his wages at the rate of $6 a week. Several days later,
while he -was in Sweeney's office on a shop matter, Sweeney referred to the favor
he had done Wilson and stated that now he wanted Wilson to do him a favor.
Sweeney went on to explain that he wanted Wilson to inform him.as to the identity
of all who belonged to the Union. When Wilson stated he did not know, Sweeney
insisted that he did, and when Wilson persisted in his disclaimer of knowledge,
Sweeney became angry, stated that if Wilson did not tell him he would make him
pay $10 a week on his repair bill instead of $6, and commented that anyway he
knew everything the employees did, that he knew every time the employees had
a meeting. Thereafter, Sweeney charged Wilson on his repair bill at the rate of
$10 a week, all payments of the approximately $50 bill being made at that rate.
The bill was paid by Wilson in full prior to the termination of his employment.
RAYMOND PEARSON, INC. 199'
Sweeney denied that any such conversation occurred, or that there was ever any
arrangement with Wilson for the payment of his repair bill other than at the rate of
$10 a week .5 Wilson impressed me as a truthful witness. I credit his testimony
concerning his interrogation by Sweeney, rejecting Sweeney's denial.
8. Pratt testified: During the month of September 1954 he had a discussion with,
Sweeney about Gullick's discharge. Sweeney told him that Gullick had been dis-
charged for "flat-rating," 6 but also mentioned that he hated to see Gullick go and
would try to rehire him if everything went all right. During the same conversation
Sweeney "talked against the Union," stating in that context that it would be "harder"
for all the men if the Union came in, and that if the Company hired a shop foreman
he would be a rough one.
Sweeney admitted speaking to Pratt about Gullick's discharge; the only variance
between his account and that of Pratt on this phase of their conversation was that
his statement about wanting to see Gullick rehired was made in response to a ques-
tion by Pratt as to whether the Respondent would ever rehire Gullick. To that
extent, Sweeney's version appears to me plausible and I accept it. Concerning the
balance of the conversation testified to by Pratt, Sweeney's version was that he told
Pratt the following:
Jack, the only thing I can tell you, a union has a steward which all-you go to,
a steward with these things instead of your shop foreman. Of course, I would'
have to put an inspector on or either a shop foreman. We don't have an in-
spector. The boys are all on their honor. They are on their honor down
there, and I would probably have to put on an inspector or shop foreman to
supervise all these jobs.
Gullick did not explain while testifying why the advent of the Union would'require
the introduction into the shop of an inspector or shop foreman. His own version
appears to me consistent with Pratt's testimony as to the sense of what he said. I so
find.
By way of general defense to the complaint's 8 (a) (1) allegations, the Respondent
adduced testimony through Colonel Pearson to the effect that, shortly after the
Union made its bargaining demand, Colonel Pearson on the advice of counsel in-
structed his department heads, including Sweeney, that, while they might discuss with
the men the advantages and disadvantages of unionization, they were required under
the law to refrain from threats and coercion. Colonel Pearson further testified that
after receiving a letter from the Union, dated July 22, 1954, complaining of super-
visory coercion, he issued further instructions to his department heads to cease
talking to the men altogether. Even if it were found that Sweeney engaged in his
widespread coercive utterances and employee interrogations, found above, without
express authorization , or, for that matter in contravention of specific instructions,
it would not relieve the Respondent from responsibility for his conduct-and par-
ticularly so because Sweeney was not just a minor supervisor but the responsible
operating head of a principal division of the Respondent. The instructions Colonel
Pearson testified were issued to Sweeney were not communicated to the employees,
and the employees had every reason to believe that what Sweeney said was being
said by him in a managerial capacity . The law is clear that an employer must be
held liable for unlawful statements and activities of supervisory personnel acting in
the course of their employment and within the apparent scope of their authority,
whether or not specifically authorized. It is quite true, as the Respondent stresses
in its brief , that the issuance of such instructions , although not affecting the legal
question of liability, is nevertheless pertinent to the credibility issue, more precisely
to the question of whether a supervisor so instructed would be likely to engage in
conduct at variance with orders given him . In resolving the credibility conflicts in
this case , I have not ignored that consideration . Nor have I failed to weigh the added
consideration , emphasized by the Respondent , that several of the General Counsel's
witnesses, although they had an opportunity to do so, failed to communicate to Col-
' In an attempt to discredit Wilson's testimony, the Respondent put into evidence the
repair order which contains a charge of $51 57, dated July 17, together with a notation,
initialed by Sweeney, stating, "Take out $10.00 per week." I do not view this document
as impairing Wilson's credibility The repair order as dated July 12, 1954, 5 days before
the charge date, and is therefore not inconsistent with Wilson's testimony that Sweeney
imposed a $10 a week charge several days after he had indicated agreement to take it out
at the rate of $6 a week.
U The meaning of that term will be explained in the section below treating with Gullick'a
discharge.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
onel Pearson that Sweeney had addressed threats directly to them.? However, those
considerations are not alone controlling on the credibility issues; they are simply
two of many to be weighed in the balance. The credibility resolutions made above
are based upon all relevant considerations as disclosed by all the testimony and by
the demeanor of the witnesses giving it. On balance, it is my considered judgment
that the particular factors urged by the Respondent are clearly outweighed by others.
On the basis of all the credited testimony, I conclude and find that the Respond-
ent interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed by Section 7 of the Act, by the conduct of Sweeney in interrogating
employees concerning union activities and affiliations and by Sweeney's threats and
warnings to employees to refrain from assisting, becoming members of, or remain-
ing members of, the Union. More specifically, I find that Sweeney engaged in un-
lawful interrogation of employees Gullick, Lay, Taggart, Glidden, Bush, and Wilson,
either as to what they knew of union organization or activities, or as to who be-
longed to the Union, or as to who its leader was-all as more fully found above. I
further find that Sweeney expressly or by reasonable implication engaged in unlawful
threats by: (1) His remarks to Taggart, Glidden, and Nack indicating that the shop
would close down with the advent of the Union; (2) his remarks to Gullick, Taggart,
and Glidden to the effect that the Respondent would require its employees to pass a
physical examination as a condition of rehire if the Union came in; (3) his remarks
to Gullick and Taggart to the effect that if the Union came in the Respondent could
see to it that nonunion men would either be preferred on the more desirable work
assignments or be "sidelined"; (4) his remarks to Glidden that if the employees went
union they would not only gradually be worked out of their jobs but would be black-
balled in Houston; (5) his statement to Nack implying that union men would be
replaced with the advent of the Union; (6) his remarks to Taggart and Glidden im-
plying that if the employees went union certain departments of the plant might be
discontinued; (7) his comments to Glidden and Nack that the Respondent would
not have a union in the shop; and (8) his statement to Pratt that if the Union came
in the Respondent would have to have a new foreman who would make it harder
for the men in the shop-all as more fully found above. It is also found that the
Respondent further interfered with employee self-organizational rights in violation
of Section 8 (a) (1) by his suggestion to Gullick-accompanied as it was by his
offer as an inducement to provide a meeting room and attorney-that Gullick talk
to employees about reviving the old company union.
C. The discriminatory discharge of A. H. Gullick
A. H. Gullick, a shop mechanic of conceded competence and with special school-
ing in Fordomatic transmission work, was discharged by the Respondent on August
16, 1954, after 6 years in the Respondent's employ. As already indicated, his role in
the Union's organizational activities among the Respondent's employees was an out-
standing one. He was the Union's original employee contact at the plant. There-
after, as appears from Gullick's testimony corroborated by other employee witnesses,
he played a leading part in soliciting signatures to union designation cards and also
acted as the intermediary between shop employees and the outside union organizer.
The Respondent's disclaimer of knowledge that Gullick was a leader in union activ-
ities is not credited. Even with other considerations aside, the Respondent's aware-
ness of Gullick's prominence in the union campaign must be evident from the fact
alone that Gullick was I of the 3 employees who appeared at the representation
hearing held on August 3, 1954, as an official observer for the Union.
Gullick was discharged by Sweeney within 2 weeks after the holding of the
representation hearing. The discharge occurred on Monday morning, August 16,
1954, as Gullick was reporting for work after a weekend absence. Sweeney told
Gullick that he was being discharged for "flat-rating." More specifically, he in-
formed Gullick that on the preceding Friday, Gullick's last workday, Gullick had
been observed and timed on a red convertible 1,000-mile Fordomatic inspection job
to which he had been assigned; that Gullick had completed that job in 37 minutes;
that it had been noted that Gullick had not dropped the Fordomatic pan; and
that Sweeney had witnesses to prove it. Gullick did not dispute the accuracy of
7The iecord reflects that on 2 or 3 occasions during the organizational campaign
Colonel Pearson met informally with an einplovee group which included at one time or
another Gullick, Taggait, Glidden, and Nack; that during at least one of these meetings
a complaint was voiced of threats being made ; but that none of the employees named
ever told Colonel Pearson of the specific threats to them to which they testified while
witnesses at the hearing
RAYMOND PEARSON, INC. 201
Sweeney's charge. He pointed out to Sweeney that as the latter must have been
aware, "flat-rating" had been going on in the Respondent's shop, as in other shops
in the industry, for many years and that no one had previously been fired for
it. Sweeney replied that he was not unaware that employees were engaging in "flat-
rating," but that Gullick was the one he happened to catch at it. Gullick asked,
"Mr. Sweeney, you mean you are firing me without even giving me another chance?"
Sweeney said that was right, but went on to assure Gullick, without being more
specific, "After this all blows over with I will do my best to get you your job back."
And also, "Just keep your nose clean, Gullick, everything will be all right." In the
course of the same conversation, Sweeney commented to Gullick that until Gullick
was called to the representation hearing, he had not realized that Gullick was the
leader. "You let me down," said Sweeney. "I would never have thought you was
one at all." 8
At the hearing the Respondent defended its discharge of Gullick as one for just
cause upon the ground Sweeney stated to Gullick at the time of the discharge,
adding to it, however, two other but related reasons which were not specifically
mentioned to Gullick at the time. One was that Gullick had similarly "flat-rated"
another 1,000-mile Fordomatic job that had been assigned to him on the Thursday
preceding his discharge. The other was that a check made of the parts department
records had revealed that Gullick had not drawn any gaskets on the last 18 Fordomatic
inspections he had performed, thus indicating that he could not have dropped the pan
on most of those jobs either, for, as the record discloses, it is usually though not
invariably necessary where a pan has been dropped to substitute a new gasket for the
old one which in most cases becomes damaged in the process. The last reason offered
however, may be ruled out-at once, because, while Sweeney testified that the check
was made on the Saturday before Gullick's discharge, Sweeney's testimony in that
respect was contradicted and for me effectively discredited by that of Colonel Pearson.
As appears from the testimony of the latter, the check was not actually made, or at
least not reported to him, until some time after Gullick's discharge. It is therefore a
factor that could not possibly have influenced the discharge decision when made.
Gullick admitted while testifying, as he had to Sweeney, that he had not lowered
the Fordomatic pan on the red convertible car on which he had worked on Friday.
He neither denied nor affirmed "flat-rating" the 1,000-mile Fordomatic inspection job
he had the previous day, stating that he had no recollection at all of that occurrence.
He conceded there had been a substantial number of other instances in the course of
his employment where he had similarly failed to lower pans, asserting, however, as
will hereinafter more fully be set out, that in each instance where he had failed to
do so his failure was justified by the circumstances .9 At the hearing, the General
Counsel based his case, not on the ground that the offense attributed to Gullick did not
occur, but on the ground that the reason given was not the real motivating reason for
the action the Respondent took, it being the General Counsel's claim that Gullick
would not have been fired at the time he was but for his union activities.
Before proceeding further, it would be well to explain briefly what "flat-rating"
means and what Gullick's particular omission consisted of. Almost all repair and
service jobs (except damaged fender jobs and the like) performed by automobile
repair service agencies are covered by so-called "flat-rate" manuals prepared by the
automobile manufacturer. The manuals prescribe in detail the various labor opera-
tions that are standard procedure for each given job and contain time schedules showing
the normal or standard time for the completion of the job. The labor costs charged
to the customer are computed, not on the basis of time actually spent by the
mechanic on the job, but on the basis of the standard time schedule for the given
job at a labor rate established by the service agency-the labor price for the job re-
maining constant whether more or less time has been consumed on the job than is
provided for in the time schedules. The mechanic performing the job is compensated,
not on the basis of an hourly rate fixed for him, but on a commission basis-at the
Respondent's plant he is paid 50 percent of the fixed or "flat" labor price of the job as
8 The findings just mane are based upon Gullick's testimony Sweeney denied only so
much of the comments attributed to him about Gullick's attendance at the representation
proceeding and his thereby discovered role as a leader of the Union. Of the two, Gullick
impressed nie by fai as the more credible witness His general account of the discharge
interview anpeared to me straightforwaid, and I have no reason to question his veracity
on the single point controverted by Sweeney. I credit Gullick's testimony over Sweeney's
denial
9 He refused to admit however that during the last 2 months of his employment he had
omitted this operation as a regular piactice, regardless of circumstances, as asserted by
the Respondent
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determined by reference to the Ford time schedules. In shop parlance, as used in the
Houston area and perhaps generally in the industry, the term "flat-rating" does not
carry the literal meaning it appears to suggest. It denotes, rather, the performance of
a job carrying a flat price without going through all the steps specified in the manual,
though the customer is charged, and the employee is compensated, at the same flat rate
that would apply if all specified steps had been taken.
The 1,000-mile inspection is one of the jobs for which a flat rate is established
by the Ford manual time schedules. The manual prescribes the standard operations
to be performed on that inspection. On a car with a Fordomatic transmission more
must be done than on one with a conventional transmission, and such inspections are
assigned only to those employees who have had special schooling at the Ford plant
in the operations of that transmission-of whom at the time in question there were
six at the Respondent's shop, including Gullick. Among numerous other operations,
the manual prescribed procedure for the Fordomatic inspection calls for the lowering
of the Fordomatic sump pan, the cleaning out of any foreign matter found in it,
the adjustment of bands if necessary, the substitution of a new gasket if the old one
has been damaged by removal of the pan, and the replacement of the pan on the
transmission-the particular steps that Gullick admittedly omitted on the red
convertible. The established price at the Respondent's plant for the 1,000-mile
inspection on a car with Fordomatic transmission is $8.50, or $2.50 more than on
one with conventional transmission, of which the mechanic receives half. Unlike
other jobs, however, that price is not paid by the customer or charged to the Ford
Company, but is borne by the Respondent, which under its contract with Ford must
include the inspection as part of the sale.
There is credited testimony in this case reflecting that , to some degree at least,
"flat-rating" has been an accepted and, at times, a knowingly tolerated practice in
the Respondent's shop, as it is in the industry as a whole. At the hearing, Sweeney
testified that he drew a distinction between legitimate "flat-rating" or short cutting,
which he admittedly approved and even encouraged, and so-called "illegitimate flat-
rating," which he testified the Company would not tolerate. Within the former
category he classified jobs, the basic objective of which might be accomplished by
short cut or substitute methods without going through all the specified manual opera-
tions, even though the customer would still be charged the same flat rate as if all
the specified operations had been done.10 Within the latter category, he classified
jobs in which a necessary element of the job itself was skipped, and he placed within
the category the inspection of the Fordomatic pan for foreign objects and the
adjustment if necessary of bands as called for by the 1,000-mile Fordomatic inspec-
tion." The record reflects that the distinction made by Sweeney was one not
always strictly observed in practice by the Respondent's shop employees.ia The
record does not support a finding that the Respondent as a general rule authorized
"flat-rating" practices of the second kind. But credited testimony does reflect that
at least at certain times and in certain situations supervision would authorize or
10 As an example, Sweeney cited the replacement of a cam shaft without removing the
radiator, when that can be done, although the manual provides for the removal of the
radiator on all such jobs That had been referred to by one witness as a particular ex-
ample of it job on which Sweeney had expressly approved a "flat-rated" job.
ii Gulhck, on the other hand, sought to justify his failure to drop the pan as a form
of "flat-rating" within the first category. It was possible according to him, for an ex-
perienced and competent Fordomatic mechanic to tell by road testing a car whether any
foreign objects were present in the pan and whether bands required adjustment. It was
his position that it was unnecessary for the fulfillment of the inspection objective to
lower the pan if the road test established that there was nothing to gain by doing so.
In these respects another Fordomatic mechanic, called as a witness by the General Counsel,
corroborated Gullick's testimony, but one called by the Respondent disagreed. Gullick
testified that it was his invariable practice to lower the pan where the road test indi-
cated its advisability, but not otherwise He admitted, however, that lie was aware of
the absence of any express exception in the manual specifications, and that supervision
had never specifically instructed or authorized him to depart from such specifications.
v For example, there is credible evidence showing that it was a common practice for
employees in the shop, as in the industry generally, to "flat-rate" motor tune-up jobs-the
specifications of which require as a component operation the removal of the carburetor
and the overhauling and cleaning of its parts-by simply washing off the outside of the car-
buretor, without moie, in a situation where the mechanic is able to succeed in getting a
good adjustment without going inside the carburetor.
RAYMOND PEARSON, INC. 203
allow such practices . 13 Although Sweeney testified at one point of his direct exami-
nation that it was his invariable practice at his monthly meetings with mechanics to
warn them against "flat -rating," his testimony in that regard is belied , not only by
the testimony of employee witnesses , including at least one called by the Respondent,
but by Sweeney 's own testimony on cross-examination . I do not credit Sweeney in
that regard . Nor do I credit certain testimony the General Counsel adduced to the
effect that at one meeting before Gullick's discharge Sweeney had stated that a
little "flat-rating" was all right if no customer was around to observe it. The testi-
mony I find credible reflects that no special point was ever made by Sweeney about
"flat-rating," one way or the other , except at a meeting following Gullick 's discharge,
when for the first time Sweeney announced that "flat-rating " would have to stop,
although it would still be all right to use shortcut methods if they served to accom-
plish the basic objectives of a job. Except for Gullick , no employee of the Re-
spondent has ever been discharged for "flat-rating ," although the record discloses that
others besides him have been "caught" at it.14
With specific reference , to the "flat-rating" of 1,000-mile inspections , there is evi-
dence that besides Gullick there were other Fordomatic mechanics in the Respond-
ent's shop who, on occasions at least , would omit dropping the pan in situations
where they felt satisfied from their road test that the mechanism was functioning
properly. According to Gullick, that practice was common ; particularly on rush
jobs. One other employee witness admitted that he also at times had done so,
although two others declined to admit while testifying that they ever did. There
is no direct evidence to show-except for the case Holt, soon to be referred to-
that management was aware of that practice prior to Gullick 's discharge . Gullick
testified on direct that Sweeney must have known that it was his practice not to
drop the pan on all inspection jobs, because Sweeney's office located close by Gul-
lick's work station had a plate glass window from which Sweeney was in a posi-
tion to observe what he was doing at all times. But he also conceded that he had
never informed management of what his practice was, and that he could not posi-
tively state that Sweeney or any other member of management had ever actually
noticed him skip that operation before the discharge incident . There is evidence,
however, of a comparable if not more serious incident of "flat-rating" on a 1 ,000-mile
inspection involving another Fordomatic employee, Ray Holt , that did come to
Sweeney's attention but was not made a basis for discharge action. As appears
from Gullick 's uncontradicted testimony , Holt, who had been assigned a Fordo-
matic inspection job, had turned the job in as completed without even jacking the
car up to see if the transmission was leaking , much less removing the pan. Later
the grease man had reported to Sweeney that the transmission had a bad leak.
When Sweeney had asked Holt-who then worked alongside Gullick-whether he
had dropped the pan , Holt had admitted that he had not , falsely claiming that he
did not know the car had a Fordomatic transmission . Sweeney had then put the lie
13 Thus, employee Taggart , a credible witness, testified that on motor tune-up jobs in-
volving rush Work or occurring within busy periods he had on occasions been told by
superiors that in order to get the work out it would be all right to do only the things that
strictly had to be done , and if , for example, the carburetor was operating satisfactorily he
need not go into it , but should instead simply wash it off on the outside to give it the
appearance of having been worked on.
Gullick testified without contradiction to another example involving a radiator me-
chanic, Springman , who, on a radiator cleaning job, the specifications of which called for
the removal of the radiator and the rodding of its flues , had merely flushed out the radi-
ator by the use of water pressure without removing the tank and without cleaning it with
rods as required by the manual which determined the price . On that occasion, Sweeney
had approved the job , stating he guessed "it's all right if it does the job," and had re-
marked to Gullick , "How do you like that for flat -rating , Gullick."
14 Sweeney 's testimony, that two others-Thompson and Segura-had also been fired
for "flat -rating," is not credited . His own cross -examination shows that the offense for
which Thompson was actually fired was not "flat-rating," but the theft of parts which he
had requisitioned from the storeroom for a repair job but had not inserted . With regard
to Segura , Sweeney admitted on cross-examination that Segura had not only "flat-rated"
a job that had come back with a customer complaint , but had refused immediately before
his discharge to accept a job assignment given him , left the plant without permission, and
was discharged upon his return the next morning . Gullick , who was given the job assign-
ment refused by Segura , testified credibly that the customer complaint on Segura 's "flat-
rated" job had occurred some time before the other incident and that Segura , although
criticized , was not discharged or otherwise disciplined for it.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Holt, by pointing out that Holt had driven the car from the lot and besides had
charged for a Fordomatic inspection . But he had then merely instructed Holt to
drop the pan and insert a new gasket. He had not discharged Holt for that
occurrence.15
Sweeney's account-supported on some of its details by testimony of W. A.
Andrade-of the events directly leading to Gullick's discharge was as follows:
On Monday , August 9, a shop mechanic seeking, but not qualified for, 1 ,000-mile
inspection work told Sweeney that he could do the work as well as others because
such inspections were being "flat-rated" anyway. Sweeney expressed surprise at
this and assured the mechanic that such flat-rating was going to be stopped. On
Wednesday of that week , Sweeney told his dispatcher , Andrade, what he had heard
(drawing from Andrade the remark that he "kind of suspicioned that ") and in-
structed Andrade to call his attention to all future assignments of such work. The
next day two inspection jobs came into the shop; the first of these , for a customer
named Weatherly , was assigned to Gullick, the other to employee Nack. Andrade
reported the assignments to Sweeney , and later reported to him also that Gullick
had begun the job at 8 a. in. and completed it at 8:40 a . M.16 Gullick did not lower
the pan on that job.15 Sweeney said nothing to Gullick about his omission. The
next day, in late afternoon , there was but one Fordomatic inspection . '8 That, too,
was assigned to Gullick. Sweeney himself timed Gullick on that job, watching him
constantly from 4:45 p. in., when Gullick signed in, until 5:20 p. in. when Gullick
signed off that job, and noted that Gullick did not drop the pan. Again he said
nothing to Gullick. On Sunday he went to Colonel Pearson 's ranch to tell him what
he had observed about Gullick and to find out whether he would be "within his
rights" in firing Gullick.19 Colonel Pearson told Sweeney to go ahead, and the
next day Sweeney informed Gullick that he had to let him go. With Gullick's dis-
charge, Sweeney discontinued his standing instruction to Andrade to keep him
posted on Fordomatic inspection assignments , and never made any investigation
of the work habits of the remaining Fordomatic inspectors whom he had not yet
observed.
There is a conflict between Gullick and Sweeney as to whether Gullick's discharge
was preceded by any warning . Gullick testified with conviction that there was
none. Sweeney claimed he had warned Gullick the day he had decided on his
investigation , although he conceded he had warned no one else . According to
Sweeney, Gullick had approached Sweeney that Wednesday morning to tell him
that he had resigned from the Union the night before. ' That had started a con-
versation-Sweeney would further have it-in which Sweeney had stated that he
understood "some of the boys out there are doing quite a bit of flat-rating"; had
stated that it would have to be stopped ; and had then enlisted the aid of Gullick as
"one of his best men" to help him check on that practice . Gullick denied that any
such incident or conversation ever took place. The record reflects that Gullick
did not in fact resign from the Union and, considering his leadership role, no reason
appears why he should have notified Sweeney otherwise. Nor does it seem plausi-
ble to me that if Sweeney, as he says , was about to embark on an investigation he
15 Just when the Holt incident occurred is not reflected in Gullick 's testimony nor other-
wise in the record.
10 Andrade also stated that Gullick worked on the car from 8 a. in. to 8 : 40 a. m. The
testimony of both witnesses does not, however , square with the Respondent 's job order, in
evidence , which shows that the car was not in fact received in the Respondent 's shop that
morning until 8 : 30 a. in.
11 Sweeney 's testimony is somewhat confused as to whether he himself observed Gul-
lick ' s failure to drop the pan that first day and Andrade 's is contradictory . Andrade tes-
tified at one point that it was he who called Sweeney's attention to that fact, at another,
that he himself had not observed Gullick , but that Sweeney had seen it for himself.
18 So Sweeney testified on cross-examination and his testimony in that respect c?in-
cides with the testimony of Andrade . On his direct examination , however , Sweeney had
stated that earlier that day a similar job had been assigned to another employee , Glidden,
and Sweeney had told with elaborate detail how he had watched Glidden , a tale which his
own later cross-examination as well as the testimony of Andrade shows to have been fabri-
cated , thus further reflecting on his credibility.
19 Although Sweeney testified on direct examination that it was obligatory on him to
consult Colonel Pearson before firing any employee , giving this as his reason for consult-
ing the colonel ; on cross -examination , Sweeney altered his position and admitted that
he had authority to fire on his own and in fact had done so on other occasions . Be later
conceded that he really consulted Colonel Pearson on this case because he was aware
that an unfair labor practice charge might result from,, the discharge.
RAYMOND PEARSON, IN C. 205
would have "tipped off" one of those to be investigated and enlisted his aid.
Sweeney's testimony, further, is inconsistent with other testimony he gave, to which
reference will be made later. His entire story of this incident impressed me as
contrived, and I do not believe it.
Sweeney's account, set out above, would have it appear that Gullick's dereliction
was unwittingly unearthed as a result of an investigation made by Sweeney in the
normal course of business with the aim of putting to a halt deceptive practices in-
jurious to the Company and its customers. Notwithstanding that assertion, there
is enough in this record to support a reasonable inference that Gullick was already
marked for discharge for some other reason, and that Sweeney's primary aim was
not what he now claims it to be, but rather to obtain evidence against Gullick that
could be used at once to support Gullick's discharge and to disguise the true reason
for it. Thus, the record discloses:
1. The investigation was not in truth a normal one. Sweeney's testimony as
well as testimony of the Respondent's witness, Nesseihauf, reveals that in the past
when Sweeney had suspected employees of engaging in "flat-rating" practices he did
not approve, he had gone to the suspected employees and warned them against
such conduct. Sweeney by his own testimony had never before, nor has he since,
"timed" an employee for the purpose of catching him in the act of "flat-rating."
If, as Sweeney professes, his main purpose was to put a stop to "flat-rating," rather
than to "get" a culprit, no reason appears why he should in this instance have de-
parted from his normal procedure.
2. Record circumstances reflect that Sweeney concentrated his investigation on
Gullick; and this though, if his testimony is to be believed, the report of flat-rating
practices on which he says he acted, was directed to Fordomatic mechanics gen-
erally. The Respondent had six mechanics who performed Fordomatic inspec-
tions. Of the 3 Fordomatic 1,000-mile inspections that were assigned during the
period of asserted investigation, 2 were given Gullick. -Gullicks' testimony, which
I credit in this respect, though the Respondent sought to show the contrary, reflects
that his second assignment at least, the one on Friday, was given him out of turn
on Sweeney's specific instructions.20 If Sweeney's principal interest was to check
on suspected "flat-rating" by Fordomatic mechanics generally, rather than to build
a case against Gullick in particular, it would seem that he would have sought to
spread the assignments to cover all mechanics rather than to take Gullick out of turn
for a second time, and particularly so if it is true, as he says, that he had already
satisfied himself on the basis of his observation the day before that Gullick was
"flat-rating." Though Nack was also given an assignment during that period,
Sweeney admitted at least at one point of his cross-examination, somewhat incon-
sistently with his testimony elsewhere, that Gullick was the only man he ever timed
from beginning to end for the entire job. Andrade- testified that when he advised
Sweeney on Friday that Gullick had signed off the job, Sweeney commented, "Yep,
I see all I want to see." With the evidence obtained on Gullick, Sweeney discon-
tinued further pursuit of his asserted investigation, although no effort had yet been
made to check on at least four remaining Fordomatic mechanics. When asked on
cross-examination why he had not checked the others, Sweeney answered, "It wasn't
necessary. I didn't have to. I had no cause for checking them." But that ex-
planation is scarcely consistent with his original assertion that the investigation was
induced by a report to him that Fordomatic inspections generally were being "flat-
rated." if on the basis of that report there was reason to check Gullick, there was
no less reason to check the others-unless, of course, Sweeney's central interest
was to obtain evidence that might aid him in ridding the Respondent of Gullick.
3. Sweeney said nothing to Gullick when he "caught" him "flat-rating." This was
a departure from Sweeney's usual custom. Sweeney himself testified, and the record
evidence relating to comparable discoveries bears out, that it was his usual practice
whenever he observed an employee acting improperly to speak to the employee about
it at once. Sweeney at different points of his testimony gave varying and incon-
^ G'ullick testified that when he was assigned the red convertible he was not the next
man "up," and that there were other Foidoniatic nien then ahead of him foi assignment ,
that he pointed this out to the dispatcher at the time; but that the dispatcher neverthe-
less told him that Sweeney had specifically requested that he be given the job Andrade
in his testimony did not specifically deny having the conversation with Gullick testified to
by the latter. The Respondent did not produce its dispatching records which might have
disclosed the true situation at that time Although Andrade testified that Gullick was
actually assigned in oider, his testimony in other respects, where lie purported to state
from memory facts better established by records, proved unreliable, and I do not credit
his testimony in this regard
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sistent explanations as to why in this instance he did not act as he normally would.
With regard to the Thursday incident involving the Weatherly car, Sweeney's original
explanation was that he first wanted to check the Company 's records to make sure
the Weatherly car had not been in the shop for Fordomatic work on any previous
occasions.21 If the car had been in the shop before, Sweeney testified further, it
might have been developed that the Fordomatic pan had been dropped and the bands
adjusted before Gullick received it; in that event, Sweeney went on, Gullick might
have had an excuse for not dropping the pan, and he wanted to be absolutely sure
that Gullick had no excuse before reaching a "decision." This explanation, it true,
would only serve to confirm that Sweeney 's main purpose was not to ascertain the
facts, as he says, but to build a case against Gullick that would hold strong in litiga-
tion. Later, with the weakness of that explanation exposed by examination, Sweeney
shifted ground and now asserted that he remained mute because he knew that if he
said anything to Gullick, word would get out that he was conducting an investigation-
and then he "never could have caught anybody." But even this revised explanation
does not satisfy. For, according to Sweeney, Gullick was already "caught," and as
Sweeney elsewhere testified, he thought it "unnecessary" to attempt to catch others.
Moreover , if that were a good reason for remaining silent on Thursday , it was no
less so on Monday when Gullick was finally told.22 With regard to the Friday in-
cident, involving the red convertible owned by Whittle, Sweeney testified that he
intended to talk to Gullick about it the same day, but Gullick had already punched
out before he could do so. But if Sweeney had followed his usual practice he would
have spoken to Gullick immediately upon observing Gullick's omission, while Gullick
was still in the shop.
4. Sweeney allowed both the Weatherly and Whittle cars to be delivered to the
customers as completed jobs without correcting the omission for which he says Gullick
was discharged.23 That fact is hardly compatible with Sweeney's assertion that he
checked Gullick in the manner he did, not because his mind was already set on
Gullick's discharge, and he hoped thus to detect some basis on which the discharge
might appear justified , but because he was anxious to put a stop to employee prac-
tices the Company considered harmful to its customers 24
Having found on the basis of the considerations outlined above, as well as others
to be mentioned below, that Sweeney's abnormal conduct with regard to Gullick
21 Such a check by Sweeney' s own account would have taken from about 5 to 10 minutes
If Sweeney was in a greater hurry, he could have simply asked Weatherly who, accord-
ing to Sweeney, was then in the shop waiting for his car Or he could have readily ascer-
tained from Gullick, by a simple inquiry, whether Gullick was aware of any such earlier
work.
9 It may also be noted In passing that Sweeney's revised explanation is at odds with his
testimony earlier considered, and discredited, that the preceding Wednesday he had
already informed Gullick of what he was planning to do.
^ Subsequently, the Respondent did arrange for new Fordomatic inspections on these
cars But that was not until September 1, mole than 2 weeks after the cars had been
released in the meantime, on August 27, the Respondent had been served with the origi-
nal charge in this case alleging that Gullick was disciinnnatoiily dismissed It is reason-
able to infer from the time sequence and other circumstances that the cars were recalled
at that time for new inspections with an eye toward this case, and I so find, although the
Respondent claims otherwise.
'2i Sweeeny's explanations for knowingly releasing the cats with work on them undone,
conduct for which he condemned Gullick, were not plausible and are not credited. As to
the'Weatheily car, Sweeney gave two reasons. One was that Weatherly removed the cam
from the shop as soon as the job was tuined in as done. The job ticket shows , howevei,
that after Gullick tuined in his job ticket, the Weatherly car was turned over to another
mechanic for further work of a different kind The other reason Sweeney gave was the
same as one of those given by him fot not immediately speaking to Gullick about his
failure to drop the pan-that lie wanted to check his records to make sure that the car
had not been in the shop before foi Fordomatic woik. That reason has already been
commented upon. As to the Whittle car, Sweeney gave as his reason that the inspection
job was turned in by Gullick late Friday afternoon and that Sweeney had no other Ford-
muatic man in the shop to do the work Gullick had left undone. The job ticket shows,
however, that the Whittle car was not scheduled for delivery to the customer until 10
a in the tollowing morning (The Respondent's shop opens at 7 a ni ) At a later stage
of his testimony, Sweeney contradicted what he had said betoie and agreed that a Ford-
omatic mechanic who could have done the work was present at the shop the-following
mom ning
RAYMOND PEARSON, INC. 207
was activated by a predetermination to eliminate Gullick, the question next arises as
to what inspired that determination . Sweeney's own testimony discloses that he had
always regarded Gullick as a competent mechanic and had liked him as a person, and
so his unusual treatment of Gullick cannot be found to be based upon personal
antagonism . The key to Sweeney's motivation must be sought elsewhere . It is to be
found, I am convinced , in Gullick's leadership role in the Union to which, as the
record amply shows, Sweeney was violently opposed. The correctness of that con-
clusion is confirmed by Sweeney 's remark to Gullick, on the day of the discharge, that
Gullick had let him down by becoming the leader of the Union.
But that still does not completely dispose of the issue. It is not enough to es-
tablish illegality that the Respondent wanted to get rid of Gullick because of his
union leadership , and with that motive pursued a course of conduct in the hope of
discovering an apparently valid reason for doing so. There remains to be consid-
ered whether the dereliction uncovered in the search for a pretext was one for which
the Respondent , normally , and in the absence of antiunion motivation , would have
discharged an employee without warning , as it did Gullick.25 Were it not for the
particular facts of this case, I would have hesitated long before finding as a fact
that the offense of "flat-rating " was not regarded by the Respondent as so serious
an offense as normally to impel it to discharge an employee found guilty of it without
further ado . But on the record of this case , I am firmly convinced that despite the
character of Gullick's dereliction , which I do not condone , the Respondent would not
have seized upon that dereliction as a basis for discharge action had not Gullick's
union activity also been present . 26 The record shows that at least some "flat-rating"
practices , even of the "illegitimate" variety, were not uncommon in the Respondent's
shop, and it is difficult to believe that a supervisor , as alert as Sweeney appears to
be, was wholly unaware of what was going on. Yet no employee had previously
been discharged for engaging in "flat-rating ," even where "caught" doing so. In
particular , Gullick's discharge for "fiat-rating " looms in sharp contrast to the Re-
spondent 's failure to take any action against employee Holt who failed to drop a
pan in a situation where even casual inspection would have disclosed the absolute
necessity for doing so. Surely Sweeney could not have viewed Gullick's omission
in this case with any sense of shock, or even have considered it serious ; else he
would have seen to it that the omission was corrected before he allowed the cars
to be delivered to the customers . If anything, Sweeney's willingness to allow the
cars thus to pass inspection , and on to the customers , would indicate that he was
satisfied that a competent and experienced Fordomatic mechanic such as Gullick
would not have omitted a specified operation unless he was assured from his road
test that the Fordomatic mechanism was functioning satisfactorily and that no in-
ternal inspection or adjustment was necessary . Finally, Sweeney 's assurance to
Gullick at the time of the discharge , to the effect that "when all this blows over with"
he would "do [his] best to get [Gullick 's] job back," does not reflect the normal
attitude of a supervisor who has discharged an employee for what he considers to
have been a serious neglect of duty. Rather that remark-left unexplained by
Sweeney, and included with Sweeney's comment to Gullick in the same conversation
that he would never have thought that Gullick was the leader of the Union and
that Gullick had let him down by becoming so, as well as his suggestion that Gullick
keep his "nose clean "-serves to confirm that Gullick's union activity weighed more
heavily in the decision to fire him than did employer dissatisfaction with him be -,
cause ,of the "flat-rating" in which he had engaged.
Upon consideration of the record as a whole , and on the basis of what I am con-
vinced is a fair preponderance of credible evidence , I reject as but a pretext the
reason assigned by the Respondent for Gullick 's discharge ; conclude that the Respond-
ent's underlying motivation for the discharge was Gullick 's union activities and lead-
ership ; further conclude that but for such union activities he would not have been
", Cf It .1 Oil f Refining Co . Inc . 108 NLRB 641, (347
2 ,1 The to inr,ple of law I consider :applicable here is that stated by the First Circuit Court
of Appeals in N. L R B . v 117hitin aclioiuc Wog bs, 204 F. 2d '883, as follows
In older to upply a basis for infering discrimination it is necessary to show that
one reason for the discharge is that the employee was engaging in piotected activity.
It need not be the only season , but it is sufficient it it is a substantial or motivating
season , despite the fact that othei reasons may exist. [ Citing cases ] Although the
discharge of all inefiicirut co insubordinate union naembei or organizer is lawful, it
may become discriminatory if other circumstances reasonably indicate that the union
activity weighed more heavily in the decision to fire him than did dissatisfaction with
his performance.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged; and find that by discharging Gullick on August 16, 1954, and thereafter
refusing to reinstate him, the Respondent discriminated in regard to Gullick's hire
and tenure of employment, thereby discouraging membership in the Union, and in-
terfering with, restraining, and coercing its employees in the exercise of rights guar-
anteed in Section 7 of the Act.
D. The alleged discriminatory discharge of W. A. Lay
W. A. Lay, a shop mechanic, was one of the Respondent's oldest employees. He
worked for the Respondent before World War II; after a period in the armed services
he returned in 1945, continuing until 1948 when he left for reasons of health;
and he again returned in 1951 and remained in the Respondent's employ until his
final discharge on August 28, 1954. Lay was regarded as one of the Respondent's
most competent employees, particularly on truck repairs, and was frequently called
upon by Colonel Pearson to do mechanical work on equipment at the colonel's
ranch.
Lay at the behest of Gullick became interested in the Union early in its organ-
izational campaign. Thereafter, he assisted in union solicitation activities, although
his role was not an outstanding one as was that of Gullick. Along with Gullick
and one other, Lay was excused from work on August 3, 1954, at the written
request of the Union, to attend the Board representation hearing in an observer
capacity. Robert Pearson's testimony on direct examination, that he had no knowl-
edge of Lay's union affiliation when he discharged him, is not credited It is found
that the management officials of the Respondent were aware, at least after August 3,
1954, that Lay was identified with the Union, and more than in a passive way.
The Respondent in its answer alleges that "Lay was discharged solely because
of highly improper conduct in the presence of one of the Respondent's customers,
consisting of an angry demonstration, the use of profane language, and the ex-
hibition of a very uncooperative attitude in the presence of the customer." That
same reason-the record establishes-was the one given Lay at the time of his dis-
charge. The issue in this case is whether that was the true reason for the discharge,
as contended by the Respondent, or whether it was simply a pretext to cover up
an underlying motivation to eliminate Lay because of his union activities, as con-
tended by the General Counsel.
It is undisputed that Lay was a person given at times to violent and uncontrollable
outbursts of temper. Lay, on occasions over a period of many years had indulged
in such outbursts while at work, the outbursts sometimes stemming from work as-
signments over which he was unhappy. The fits of temper when they occurred
would last a short time, Lay would then regain control of himself, feel sorry for
what he had said, and do the work he was supposed to do. The Respondent's man-
agerial officials were aware of his tendency readily to explode, and over the years
tolerated it except for mild reproofs. Until shortly before Lay's discharge, how-
ever, none of his temperamental outbursts had occurred in the presence of a customer.
According to the Respondent's witnesses, about a week or so before the discharge,
Lay engaged in an outburst of temper in the presence of a customer, J. C. Moore,
on whose truck he was then working, resulting in Moore registering a complaint
with Sweeney and suggesting that his work be assigned to another mechanic.
Sweeney testified that on the occasion of the complaint he warned Lay that the Com-
pany would not tolerate having its customers involved in Lay's outbursts of temper
and that if it happened again he would let Lay go 27 Lay's recollection concerning the
Moore incident was vague and vacillating, but he did not categorically deny that
some such incident did occur. Moreover, at one point of his cross-examination he
admitted that not long before his discharge-Lay fixed the time as just before the
Board representation hearing-he "blowed [his] stack" over being rushed over a
truck job, and that as a result Sweeney came to him and told him, "You ought not
to be like that." On all the evidence, I am persuaded that the Moore incident
did occur, although 1 believe it more likely that it occurred before rather than after
'the representation hearing,28 and that it resulted, if not in a warning, at least in a
strong reprimand to Lay.
27 Sweeney further testified that he reported his conveication with Lay to his assistant,
Jack Wetrell, and also to Robert Pearson, the Respondent's vice president and geneial
manager
2' In the connection, I note that, in attempting to establish the incident through cross-
examination of Lay before calling any witnesses of his own, the Respondent's counsel
himselt fixed the time as "lust before the National Labors Relations healing"
RAYMOND PEARSON, INC. 209'
The incident that immediately precipitated Lay's discharge occurred while
Sweeney was absent from the shop on vacation . On Saturday morning, August
28, 1954, Lynn Murray, Jr, a customer of the Respondent , brought his car to the
Respondent 's shop to have two arm rests replaced and a rear view mirror installed.
The dispatcher assigned the job to Lay. There is some conflict between the Re-
spondent 's and Lay's versions as to what then occurred . The Respondent called as
its principal witness on this phase of the case its customer, Murray, whose testimony
was corroborated in most material respects by Dispatcher Drumheller . Murray's
account was as follows: Upon being assigned the job , Lay in the presence of Murray
became visibly angry, and , using language more vile than profane, complained
violently about the job assignment he had been given , stating that the installation
of arm rests was a job for a trimmer , not for him. After Drumheller explained
to Lay that the job called for the replacement and not the original installation of arm
rests, and involved little more than the removal and insertion of a few screws, Lay
went ahead and did the job. He continued , however, to complain bitterly and with
the use of foul language about the undesirable job assignments the Company gave
him, referring at one point to the Respondent as the "God damn Company," and
also made reference along the way to the petty jobs that customers would bring
in on Saturdays . Later, after experiencing some delay in obtaining the tools nec-
essary for the installation of the mirror , Lay blamed the Company, again complain-
ing about the Company in the hearing of Murray.
Lay admitted that he might have lost his temper "a little" when he was first as-
signed the job, and that he might have expressed in forcible language his irritation
with Drumheller for not telling him at the outset that the job called for the replace-
ment rather than the installation of arm rests. But he denied remaining angry
after he had once started on the job. He stated that he had no recollection of com-
plaining in Murray's presence about the Company and the character of the job
assignments it gave him, and particularly denied that he had made reference to
Saturday customers and the petty nature of the jobs they would bring in. Unlike
Murray, Lay was not a disinterested witness. In certain respects his testimony was
vacillating and his recollection vague and uncertain . On the other hand, Mur-
ray's account , partially admitted by Lay and corroborated by Drumheller , remained
unshaken by cross-examination I have no reason to doubt Murray 's veracity. To
the extent that Lay's and Murray 's versions are in conflict , I credit Murray and find
that the incident occurred substantially as related by him
Before leaving the shop that morning Murray called on Robert Pearson, whom
he had known since their high school days together , and told him what had happened.
Drumheller also reported the incident to Pearson . Pearson instructed Assistant
Service Manager Wetzell to check with Lay and obtain his side of the story. Later
that morning Pearson directed Wetzell to discharge Lay.
To support his contention that the Murray incident provided but the pretext for
a discharge that was in fact motivated by antiunion considerations , the General
Counsel stresses that the Respondent for many years had tolerated Lay's outbursts
of temper , only to find such outbursts no longer tolerable after Lay 's attendance at
the Board representation hearing had revealed to it that Lay occupied a leadership
position in the Union 's organizational efforts to which it was opposed. But the
argument overlooks the fact that , except for the penultimate Moore incident which
resulted in a reprimand or warning , none of Lay's earlier outbursts had occurred in
the presence of a customer . It is not unreasonable to believe that an employer may
be willing to condone expressions of employee temper that are confined to shop
employees , and yet react far differently in a situation where sensitive company-
customer relations are involved. Even if it be assumed that the Respondent was
desirous of eliminating Lay for his union activities , and welcomed a reason for do-
ing so, I do not think the conclusion would be justified on the facts here that its
discharge of Lay was for other than legitimate cause. On the record of the Lay
case,' it cannot be said that the reason which Lay himself provided-without prov-
ocation by the Respondent-was one for which the Respondent would not normally
have discharged him, even in the absence of antiunion motivation . Unlike the Gul-
lick case, the Lay case contains no substantial evidence to support an inference that,
but for the employee's union activities , the Respondent would not under like cir-
cumstances have considered the offense committed as sufficiently grave to warrant
discharge.
On all the evidence , I find that the complaint 's allegations of unfair labor practices
relating to Lay's discharge have not been substantiated . Accordingly , I shall recom-
mend that such allegations be dismissed.
300609-56-voi ] 15-15
.210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section 1, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that the Respondent be ordered to cease and desist therefrom,
and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Respondent discriminated with regard to the hire and
tenure of employment of A. H. Gullick. Following the close of the hearing, the
General Counsel formally requested that it be made a matter of record in this case
that A. H. Gullick died on September 19, 1955. The remedial power committed to
the Board by the Act is not affected by Gullick's death; only the type of remedy is
altered. The achievement of the ends toward which the Act is directed requires that
the injury done Gullick be remedied in the most feasible manner under all the
circumstances. In order to effectuate the purposes of the Act, the Respondent
must compensate Gullick's estate and/or insurance beneficiaries for any loss suffered
by him by reason of the discriminatory discharge from the date of the discharge to
the date of his death, as well as for any loss suffered because of the loss or depriva-
tion as a result of such discharge of bonuses, emoluments, insurance coverage, and
other benefits accorded by the Respondent to its employees, and which Gullick would
have enjoyed but for his discharge.29 Accordingly, 1 shall recommend that the
Respondent be ordered to pay to Gullick's personal representative, for distribution
in accordance with the laws of the State of Texas, a sum of money equal to the
amount Gullick would have earned from the date of his discriminatory discharge
to the date of his death, less net earnings,30 to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289,
291-294. Earnings in any one particular quarter shall have no effect upon the
back-pay liability for any other such period. I shall further recommend that the
Respondent be ordered to pay Gullick's personal representative, or such other per-
son or persons whose interest may appear, a sum of money equivalent to the amount
of bonuses, emoluments, insurance, and other death benefits, to which such personal
representative, or other person or persons, would have been entitled upon Gullick's
death, had Gullick not been wrongfully discharged, deducting therefrom the amount
of any bonuses, emoluments, insurance, or other death benefits heretofore paid or
now payable as a result of Gullick's employment elsewhere subsequent to his dis-
charge, and also deducting therefrom the amount of insurance premiums the
Respondent would normally have deducted from Gullick's pay from the date of his
discharge to the date of his death. It will also be recommended that the Respondent
preserve and make available to the Board upon request, payroll and other records
to facilitate the check of back pay due.
As the unfair labor practices committed by the Respondent were of a character
striking at the roots of employee rights safeguarded by the Act, and indicate a danger
that the Respondent may continue, although not necessarily by the same means,
to defeat self-organization of its employees, it will also be recommended that the
Respondent cease and desist from infringing in any manner upon the employee
rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Local 744, International Association of Machinists, AFL, and Local 968,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers,
AFL, Jointly, are labor organizations within the meaning of Section 2 (5) of the
Act.
2. By discriminating in regard to the hire and tenure of employment of A. H,
Gullick, thereby discouraging membership in the aforesaid labor organizations,
the Respondent has engaged in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
2 El Paso Electric Company , 13 NLRB 213 2-i5: Coca Cola Rottlrng Co, 97 NLRB 151
Glen Raven Silk Mills, hie , 101 NLRB 239 250
3110os.sett Lumber Company , S NLRB 440. 447-495: Republic Steel Corporalao,i v.
N L R B.,311U S.7
J. T. FLAGG KNITTING COMPANY 211
3. By interfering with , restraining , and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2-(6) and (7) of the Act.
5. The Respondent has not engaged in any unfair labor practice by the discharge
of W. A. Lay.
[Recommendations omitted from publication.]
J. T. Flagg Knitting Company , Division of Flagg -Utica Corpora-
tion and Lodge No. 1189 , International Association of Machin-
ists, AFL-CIO, Petitioner . Case No. 10-RC-309. January 23,
1956
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Frank E. Hamilton, Jr.,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act for the following
reasons:
The Petitioner seeks to represent, in general, a unit of machine
fixers. It would include in the unit the following job classifications :
assistant foremen, machine fixers classified as assistant foremen, ma-
chine fixers, and their apprentices. It would exclude employees cov-
ered by contracts between the Employer and other labor organizations.
It is willing, however, to represent oilers now covered by contract
if the Board is of the opinion they should be included in such a
unit. The Employer contends that the unit requested by the Petitioner
is not-appropriate, that assistant foremen or machine fixers classified
as assistant foremen are supervisors, and that the existing bargaining
contract covers any nonsupervisory classifications requested and bars
a current election.
The contract urged by the Employer is one with Local 378, Interna-
tional Ladies' Garment Workers' Union, AFL-CIO, which did not
appear at the hearing although notified of the proceeding. The con-
tract was negotiated January 15, 1955, to run for 1 year, and covers
production and maintenance employees. Part of the contract dealing
115 NLRB No. 24.