Tri County Employers Association

National Labor Relations Board - Board Decisions

Mar 16, 1953

103 N.L.R.B. 653 (N.L.R.B. 1953)

TRI COUNTY EMPLOYERS ASSOCIATION 653
TRI COUNTY EMPLOYERS ASSOCIATION, ALSO KNOWN AS THE EMPLOYERS,
COUNCIL OF SANTA BARBARA COUNTY; GEORGE YOUNG, INCORPORATED,
CHEVROLET SALES & SERVICE; VINCENT E. WOOD AND AUSTIN V.
HEWLETT, COPARTNERS D/B/A JACK V. WOOD, PONTIAC, G. M. C.;
VINCENT E. WOOD D/B/A VINCENT WOOD, BUICK, G. M. C.; DAN-
IELSON-KOVARNO MOTORS, CHRYSLER ; JACK MARTIN, CADILLAC-
OLDsMoBH,E, G. M. C.; VAN ETTA'S INC., LINCOLN MERCURY;
THOMAS I. PETERSEN , PACKARD; CIAUDE PHIPPS D/B/A PHIPPS
MOTORS, KAISER -FRAZER; AND R. A. BONER D/B/A BONER MOTORS,
DESOTO and INTERNATIONAL ASSOCIATION OF MACHINISTS , DISTRICT
LODGE #56. Case No. 21-CA-1194. March 16,1953
Decision and Order
On November 12, 1952, Trial Examiner Wallace E. Royster issued
his Intermediate Report in the above-entitled proceeding, finding that
certain of the Respondents had engaged in and were engaging in
unfair labor practices, and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. He also found that
certain of the Respondents had not engaged in unfair labor practices
alleged in the complaint and recommended dismissal of those allega-
tions. Thereafter, the General Counsel and the Respondents, other
than Thomas I. Petersen, Phipps Motors, and Boner Motors, filed
exceptions 1 to the Intermediate Report, together with supporting
briefs.
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings,s conclusions, and recom-
mendations 4 of the Trial Examiner.
I The General Counsel subsequently filed a motion to amend statement of exceptions.
The motion is granted.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as
amended, the Board has delegated its powers in connection with this case to a three-
member panel [ Members Houston , Styles, and Peterson].
P The Trial Examiner , although he set forth with particularity the facts with respect to
the operations of the Respondents , inadvertently omitted a specific finding that they were
engaged in commerce within the meaning of the Act . The Board now so finds.
`The Trial Examiner found that Respondent Van Etta 's Inc .'s refusal to employ Worthen
and Perello was violative of Section 8 (a) (3) and ( 1) of the Act because of the discrimi-
natory standard attached to the consideration of their applications for employment. How-
ever , because he found that this conduct occurred in a setting which did not include an
opportunity for Immediate employment he did not recommend either hire or back pay for
them . Van Etta's Inc. excepts to the Trial Examiner 's finding of violation and the General
Counsel to his failure to provide preferential hiring for those individuals . We agree with
the Trial Examiner that Van Etta's conduct with respect to Worthen and Perello was
violative of the Act, but find it unnecessary to determine whether Section 8 (a) (1)
103 NLRB No. 66.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 :
1. Jack Martin, Cadillac-Oldsmobile, G. M. C., Santa Barbara,
California, its officers , agents , successors , and assigns , shall:
a. Cease and desist from procuring false or inaccurate testimony to
be given in matters before the National Labor Relations Board affect-
ing the right of employees under the terms of the Act or in any other
manner interfering with, restraining, or coercing employees in the
exercise of the right to self-organization, to form labor organizations,
to join or assist International Association of Machinists, District
Lodge #56, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the Act.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(1) Post at its shop in Santa Barbara, California, copies of the
notice attached to the Intermediate Report as Appendix A.5 Copies
of such notice, to be furnished by the Regional Director for the Twen-
ty-first Region, shall, after being duly signed by the Respondent's
authorized representative, be posted by the Respondent immediately
upon receipt thereof and maintained by it for sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices 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.
(2) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Decision and Order
what steps the Respondent has taken to comply therewith.
alone, or Section 8 (a) (3) as well , has been violated because in either event we find
appropriate the remedy of placement upon a preferential hiring list for these individuals,
as requested by the General Counsel. See J. G. Boswell Company , 35 NLRB 968 , enforced
135 F . 2d 585 ( C. A. 9). We shall therefore order Respondent Van Etta's Inc. to place
Worthen and Perello on a preferential hiring list and to offer them the next openings
in the same or substantially similar positions as those they previously applied for , subject
to any seniority system heretofore applied in the conduct of its business.
5 This notice , however, shall be and it hereby is amended by striking from the first para-
graph thereof the words "Recommendations of a Trial Examiner" and substituting in
lieu thereof the words "A Decision and Order ." In the event that this Order is enforced
by a decree of a United States Court of Appeals , there shall be substituted for the words
"Pursuant to a Decision and Order " the words "Pursuant to a Decree of a United States
Court of Appeals , Enforcing an Order."
TRI COUNTY EMPLOYERS ASSOCIATION 655
2. Van Etta's Inc., Lincoln Mercury; Thomas I. Peterson, Packard;
and Claude Phipps d/b/a Phipps Motors, Kaiser-Frazer; all in Santa
Barbara, California, their officers, agents, successors, and assigns, shall
each
a. Cease and desist from :
(1) Interfering with, restraining, or coercing its employees in the
exercise of the right to self-organization, to form labor organizations,
to join or assist or engage in lawful strike action in support of Interna-
tional Association of Machinists, District Lodge #56, to bargain col-
lectively through representatives of their own choosing, to engage in
concerted activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activities
except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the Act.
(2) Refusing to hire or otherwise discriminating against applicants
for hire because of union membership or strike participation.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(1) Van Etta's Inc., Lincoln Mercury, shall place Walter Worthen
and Eugene Perello upon a preferential hiring list and offer them em-
ployment in the manner set forth in the Board's decision herein.
(2) Thomas I. Petersen, Packard, shall offer Russell Johnson imme-
diate employment in a position substantially equivalent to that dis-
criminatorily denied him, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of pay he may
have suffered as a result of the discrimination against him, all in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(3) Claude Phipps d/b/a Phipps Motors, Kaiser-Frazer, shall offer
Albert Roberta immediate employment in a position substantially
equivalent to that discriminatorily denied him without prejudice to
his seniority or other rights and privileges, and make him whole for
any loss of pay he may have suffered as a result of the discrimination
against him, all in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy."
(4) The two Respondents last named above, upon request, shall
make available to the Board or its agents for examination and copy-
ing all payroll records, social-security payment records, timecards,
personnel records and reports, and all other records necessary or con-
venient to analyze the amounts of back pay due under the terms of
this Order.
(5) Claude Phipps d/b/a Phipps Motors, Kaiser-Frazer, and
Thomas I. Petersen, Packard, shall post at their shops in Santa Bar-
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bara copies of the notices attached to the Intermediate Report as Ap-
pendixes B and C,6 respectively. Van Etta's Inc., Lincoln Mercury,
shall post at its shop in Santa Barbara, copies of the notice attached
hereto and marked "Appendix." 7 Copies of such notices, to be fur-
nished by the Regional Director for the Twenty-first Region, shall,
after being duly signed by the Respondents' representatives, be posted
by the Respondents immediately upon receipt thereof and maintained
by them for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any other
material.
(6) Notify the Regional Director for the Twenty-first Region, in
writing, within ten (10) days from the date of this Order what steps
they have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondents violated the Act in respects other than herein found
be, and it hereby is, dismissed.
9 These notices, however , shall be and they hereby are amended by striking from the first
paragraph thereof the words "Recommendations of a Trial Examiner " and substituting in
lieu thereof the words "A Decision and Order." In the event that this Order is enforced
by a decree of a United States Court of Appeals , there shall be substituted for the words
"Pursuant to a Decision and Order " the words "Pursuant to a Decree of a United States
Court of Appeals Enforcing an Order."
7 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of a United States Court of Appeals , Enforcing an Order."
Appendix
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, we hereby notify our employees that :
WE WILL NOT require withdrawal from or severance of union
membership as a condition to consideration for employment and
will not refuse to employ any person because of his membership
in or activity in behalf of a labor organization or because of par-
ticipation in a lawful strike.
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 or assist INTERNA-
TIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE #56, to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
TRI COUNTY EMPLOYERS ASSOCIATION 657
any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized in Sec-
tion 8 (a) (3) of the Act.
WE wir.L place Walter Worthen and Eugene Perello on a pref-
erential hiring list, and offer them employment when vacancies
arise.
VAN ErrA's 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 and Recommended Order
STATEMENT OF THE CASE
Upon charges filed by International Association of Machinists, District Lodge
#56, herein called the Union, the General Counsel of the National Labor Re-
lations Board issued his complaint against Tri County Employers Association,
herein called Tri County ; George Young, Incorporated ; Vincent E. Wood and
Austin V. Hewlett, copartners d/b/a Jack V. Wood ; Vincent E. Wood d/b/a
Vincent Wood; Danielson-Kovarno Motors; Jack Martin; Van Etta's, Inc.;
Thomas I. Petersen ; Claude Phipps d/b/a Phipps Motors; and R. A. Boner d/b/a
Boner Motors, herein collectively called Respondents, alleging violations of
Section 8 (a) (1), (3), and (5 ) and Section 2 (6) and (7) of the National
Labor Relations Act, 61 Stat. 136. herein called the Act
In respect to unfair labor practices, the complaint, as amended at the hear-
ing, alleges that Tri County, George Young, Vincent Wood, Jack Wood, Daniel-
son-Kovarno, and Jack Martin have failed to bargain in good faith with the
Union. Further, according to the complaint, these Respondents refused to
reinstate 12 unfair labor practice strikers upon their unconditional application,
and Van Etta's, Thomas I. Petersen, and Claude Phipps refused to hire appli-
cants for employment because of their membership in, activity in behalf of, or
participation in strike action and all variously interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in Section 7 of the Act.
Additionally, the complaint alleges that all Respondents, excepting Van Etta's,
Petersen, and Phipps, by the commission of unfair labor practices converted a
strike of their employees, economic in origin, to an unfair labor practice strike.
A motion by the General Counsel made at the opening of the hearing to dis-
miss the complaint in respect to R. A. Boner was granted.
Each of the Respondents filed an answer to the complaint. All denied the
commission of unfair labor practices.
Pursuant to notice a hearing was held before the undersigned Trial Exam-
iner in Santa Barbara, California, from August 19 through September 11, 1952.
All parties appeared at the hearing by counsel or otherwise, were afforded op-
portunity to examine and cross-examine witnesses, and to introduce evidence
pertinent to the issues. At the conclusion of the General Counsel's case-in-chief,
I granted motions to dismiss directed to certain specifications in the complaint.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the close of the taking of evidence, counsel for certain Respondents and
counsel for the General Counsel argued orally on the record. Briefs have been
received and 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 RESPONDENTS
Tri County Employers Association is a nonprofit corporation with its prin-
cipal office and place of business in Santa Barbara, California, where it is en-
gaged in representing employers in the negotiation and execution of collective-
bargaining contracts. At all times material herein Tri County has so repre-
sented Respondents George Young, Vincent Wood, Jack Wood, Danielson-
Kovarno, and Jack Martin.
George Young, a corporation with its principal office and place of business in
Santa Barbara, California, is the owner of a franchise for the sale of new
Chevrolet automobiles and at all times material herein has continuously been
engaged in the business of selling and servicing automobiles. During the 12-
month period preceding the issuance of the complaint, Young purchased new
automobiles, trucks, and parts valued in excess of $500,000 from Chevrolet
Division of General Motors Corporation, Van Nuys, California.
Vincent E. Wood and Austin V. Hewlett, a partnership doing business as
Jack Wood, Pontiac, G. M. C., with their principal office and place of business
at Santa Barbara, California, are the owners of a franchise for the sale of new
Pontiac automobiles and at all times material have been engaged in selling and
servicing automobiles. During the 12-month period preceding the issuance of
the complaint Jack Wood purchased automobiles and trucks valued in excess of
$350,000 from Assembly Division of Pontiac Motor Division, Los Angeles, Cali-
fornia, and from G. M. C. Truck and Coach Division, Oakland, California.
Vincent E. Wood d/b/a Vincent Wood, Buick, G. M. C., with his principal
office and place of business at Santa Barbara, California, is the owner of a
franchise for the sale of new Buick automobiles and at all times material has
been engaged in the business of selling and servicing automobiles. During the
12-month period preceding the issuance of the complaint, Wood purchased new
parts and accessories having a value in excess of $300,000 from Buick Assembly
Division, Los Angeles, California.
Danielson-Kovarno Motors, with its principal office and place of business au
Santa Barbara, California, is engaged in the business of selling and servicing
automobiles and is the owner of an exclusive franchise for the sale of new
Chrysler automobiles. During the 12-month period preceding the issuance of
the complaint, Danielson-Kovarno purchased new automobiles and parts having
a value in excess of $250,000 from the assembly plant of Chrysler Motors of
California, Los Angeles.
Jack Martin, with his principal office and place of business at Santa Barbara,
California, at all times material has been engaged in the business of selling and
servicing automobiles and is the owner of a franchise for the sale of new Cadil-
lac and Oldsmobile automobiles. During the 12-month period preceding the
issuance of the complaint, Martin purchased new automobiles and parts having
a value in excess of $500,000 from Oldsmobile and Cadillac Division of the Gen-
eral Motors Sales Corporation in Los Angeles.
'A motion by the General Counsel to correct the record made after the close of the
hearing is hereby granted except in respect to item 2, which is denied.
TRI COUNTY EMPLOYERS ASSOCIATION 659
Van Etta's Inc., a corporation with its principal office and place of business
at Santa Barbara, California, at all times material has been engaged in the
business of selling and servicing automobiles, and is the owner of a franchise
for the sale of new Lincoln and Mercury automobiles. During the 12-month
period preceding the issuance of the complaint, Van Etta's purchased new auto-
mobiles and parts having a value in excess of $250,000 from Lincoln Mercury
Division, Ford Motor Company, Los Angeles, California.
Thomas I. Petersen, with his principal office and place of business at Santa
Barbara, California, has been at all times material engaged in the business of
selling and servicing automobiles and is the owner of a franchise for the sale
of new Packard automobiles. During the 12-month period preceding the issu-
ance of the complaint Petersen purchased new automobiles and parts having a
value in excess of $250,000 from Earle C. Anthony, Inc., distributor for the
State of California for new Packard automobiles in Los Angeles, California.
Claude Phipps, with his principal office and place of business at Santa Bar-
bara, California, at all times material, has been engaged in the business of
selling and servicing automobiles and is the owner of exclusive franchises for
the sale of new Kaiser-Frazer and new Austin automobiles. During the 12-
month period preceding the issuance of the complaint, Phipps purchased Kaiser-
Frazer and Austin automobiles and parts having a value of approximately
$135,000.
II. THE ORGANIZATION INVOLVED
International Association of Machinists, District Lodge #56, is a labor or-
ganization affiliated with the American Federation of Labor, admitting to
membership employees of Respondents.
III. THE UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain2
The complaint alleges, the answer admits, the evidence establishes, and I find
that at all times material herein all automobile mechanics, journeymen auto-
mobile painters , journeymen body and fender repairmen , journeymen mechanics,
heavy duty helpers, and apprentices of George Young, Jack Wood, Vincent Wood,
Danielson-Kovarno, and Jack Martin, excluding clerical employees, professional
employees, and supervisors, as defined in the Act, constitute a unit appropriate
for purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
The complaint alleges that the Union has been at all times material the ma-
jority representative of the employees in the appropriate unit. Asserting lack
of knowledge in this connection, the answer of the Respondents concerned denies
the allegation. However the Union is still recognized by the Respondents, its
majority status has never been questioned, and it was stipulated at the hearing
that the Board has issued certifications to the Union as such representative. In
the absence of evidence to establish that the certifications no longer are valid,
or that the Union has in fact lost its status, I find that at all times material
to the issues raised by the complaint, the Union is and has been the majority
representative of the employees in the appropriate unit within the meaning of
Section 9 (a) of the Act.
2 Findings in respect to formal bargaining meetings are based upon a synthesis of the
testimony of the participants. Conflicts in testimony relating to matters of importance
have been resolved.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sometime in 1946, all of the employers in respect to whom it is contended
that an unlawful refusal to bargain occurred, except Jack Martin, entered into
contracts with the Union which by successive negotiations continued in effect until
about October 1, 1951. In the spring of that year, as a result of an election con-
ducted among the employees at the establishment of Jack Martin, the Union
became their bargaining representative. Shortly thereafter Earl C. Hemme,
business agent of the Union, was advised that Tri County would represent Martin
in bargaining, and in response to Hemme's request Thomas B. Flynn, Tri County's
manager, secured from Martin and forwarded to Hemme certain information
concerning the wages of Martin's employees. On June 29 Hemme, in behalf
of the Union, notified the Employers party to the existing agreement of the
Union's intention to terminate the contract effective September 1 and asked to
be notified when and where to meet for the purpose of negotiation. On July
9 Hemme wrote to Flynn, reminding him that he had first requested a nego-
tiating meeting in respect to Martin on May 7 and asked that such a date be set.
Flynn replied, telling Hemme that certain information Hemme had requested
had been submitted, that both he and Hemme had been involved in another matter
of negotiation, accounting for the delay, and promised to provide further infor-
mation within a few days. On August 7 Hemme addressed Martin directly, re-
questing a meeting for purposes of negotiation. The following day Flynn wrote
to Hemme enclosing certain figures which the latter had requested, and suggesting
a meeting when Hemme was available in connection with the negotiations
relating to the expiring contract.
A meeting was held between Flynn and Hemme on August 21. Flynn suggested
that, before the Employers were called in to participate in negotiations, he and
Hemme discuss matters informally and, as wages generally constituted the
principal obstacle to agreement, it be first on the agenda. Flynn said that on
fringe issues and general clauses he thought the parties could get together.
On August 29 a news item in the local daily paper stated that the Union would
strike September 1 because a new contract had not been negotiated. The fol-
lowing day representatives of the Union met with Flynn and the Employers.
Flynn again suggested that the issue of wages be the first matter for considera-
tion. Walter Owen, a representative of the Union, asked if Martin would be a
party to the contract. Flynn replied that he would except with respect to a
union-shop provision. The Union had not on that date been authorized in
accordance with a then existing requirement of the Act to enter into such an
agreement with Martin. Young presented figures showing that the Employers
were not profiting by the operation of their repair shops and suggested as a
possible solution of the wage question that the Employers seek to obtain ap-
proval from the Office of Price Stabilization for an increase in the hourly rate
charged customers for repair work. As the mechanics in general received 50
percent of the rates charged the customers, their earnings thus would be aug-
mented. Attorney A. D. Haines, representing the Respondents, suggested that
a request for an increase in customer rate might more favorably be considered
if the Union would join with the Employers in such a move. Owen said that
he would not participate in any action which might result in higher charges to
customers. Young then said that he knew an individual well informed in such
matters who could advise him as to the likelihood of getting a higher customer
rate. With the understanding that Young would explore that possibility, and
after agreement to extend the term of the contract for a month, the meeting
adjourned. On September 19 the Union was advised that a higher customer rate
was not an immediate prospect ; that it might require several months to accom-
plish such a result. At the bargaining meeting held on that date, the Employers
TRI COUNTY EMPLOYERS ASSOCIATION 661
offered a flat wage increase of $10 a month ; the union spokesman said he would
settle for $25. Again, on September 27, Young offered to increase the wage rate
by 7 cents an hour. Owen replied that the offer was inadequate. The Em-
ployers agreed to examine their books to see if there was any possibility that a
more favorable offer could be made. The meeting closed and the parties again
met on October 1. Young again made the 7-cent offer, which was a subject of
discussion. After a conference of union representatives, Owen offered to settle
the wage question for an increase of 10 cents an hour. Young said that 7 cents
was as high as the dealers would go and that the Union could take it or leave
it. Upon Owen's suggestion, the offer was reduced to writing for presentation
to the Union's membership. On October 4 Owen and Hemme informed Flynn
that the 7-cent offer had been rejected ; that the Union was reverting to its
original demand for a 10-percent raise. Flynn expressed sharp resentment
at this development, protesting that it was stupid to discard the product of a
month's bargaining when the parties were only 3 cents away from agreement
on wages, and asked that the contract be extended for a week during which
the parties bargain intensively in an effort to reach agreement. Owen said
that he was willing that the negotiations take place, but unwilling to renew the
contract (which contained a no-strike provision) as the Union preferred to re-
main free to take strike action if it became necessary. On October 17 Hemme and
Flynn met briefly in the presence of a representative of the Board who was
there in connection with another matter. The positions of the parties were re-
viewed to some extent, but nothing was accomplished. In the meantime, about
October 11, Flynn had visited the offices of the Wage Stabilization Board in
San Francisco in an unsuccessful attempt to discover how much of a wage in-
crease would secure that board's approval.
On October 18 the employees of George Young went on strike, followed on
October 23 by those of Vincent Wood, Jack Wood, and Danielson-Kovarno, and
on November 15, of Jack Martin. The complaint alleges that the strikes were
for the purpose of securing the Union's economic demands. On October 22 the
parties met with Attorney Canfield, who with Attorney Haines had been on some
occasions counsel for the individual employers and for Tri County. Also present,
as at all bargaining meetings to this date except that of September 19, was
Frank Randall of the California State Conciliation Service. Canfield suggested
that a contract be reached between the parties on the basis of granting a wage
increase of 7 cents an hour with a guarantee of 44 hours work each week. Hemme
said that he would take the offer back to his members. The dealers also agreed
to consider it. Although on the surface at least the offer appears hardly dis-
tinguishable from the one earlier rejected by the Union, it was testified that
the dealers considered it somewhat less advantageous from their viewpoint in
that it was phrased in such a manner as to change the traditional 50-50 split of
the customer charge by giving the worker the larger percentage. It was also
testified that it was more advantageous to the Union in that it was an increase
tied in to "productive hours," which sometimes substantially exceeded the actual
number of hours worked. During the evening of that day, according to Flynn,
he was informed by Conciliator Randall that the Union had refused the offer.
Hemme testified that on the following day he learned from the same source that
the dealers had "kicked Canfield out of the picture." Randall was, of course,
not available as a witness. Because of this information, according to Hemme,
he canceled a proposed special meeting of the employees, and submitted the pro-
posal at the next regular meeting. On October 29 Hemme told Attorney Haines
that the offer was acceptable to the Union. Haines testified that Hemme did
indeed say that the offer was acceptable, but only if the Employers would grant
257965-54-vol. 103-43
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a substantial increase in their payments in connection with a welfare fund and a
more favorable sick -leave provision . Haines told Hemme, he testified, that the
imposition of the conditions made it necessary to refer the matter back to the
Employers'
In early November George Young attended a meeting of automobile dealers
in Southern California and on November 6 conferred with the Santa Barbara
dealers. Young told them that he had learned , contrary to his earlier belief,
that the Union had more members in Southern California working under open-
shop contracts than under union-shop agreements ; that in the City of Los
Angeles the Union had no contracts at all with automobile dealers. Some one
of the Employers said that he did not like the union-shop provision and that he
had failed in his effort to employ a certain mechanic because the mechanic would
not work where it was necessary that he join a union. Someone else suggested
that the Union seemed alert enough in presenting demands to benefit its
membership , why should not the dealers try to get something for themselves.
Although it was testified that this meeting ended without the dealers having
taken any final position in respect to the union shop, it is clear that all partici-
pants voiced their opposition to such a clause in a new contract. On November
8 the parties met again . All phases of a contract were discussed except for
wages, union shop, and a welfare plan , and agreement reached in many respects.
Some matters were left with the understanding that the negotiators would
recommend acceptance to the Employers . On a few minor items, no agreement
was reached. On November 9 Flynn addressed a letter to Conciliator Randall,
proposing a wage increase of $13.50 a month, no welfare plan other than the
one in operation, that the contract contain all provisions that were agreed to
on November 8 and "others as discussed," but that the union-shop clause be
dropped. Flynn testified that before mailing the letter to Randall he decided
first to consult with Attorney Haines, with the result that Randall may not have
received it until November 15 or 16. According to Flynn, a copy was sent to each
Employer with the recommendation that it be posted on the bulletin board.
Also, Flynn testified , a copy was sent to Hemme. Hemme denied that he
received it.
On November 16, while in Los Angeles, Hemme, in company with Owen, learned
from Randall that the Employers were raising the union shop as an issue.
Also the Santa Barbara Union Labor News, the official publication of the Santa
Barbara County Building Trades Council, reported in its news columns on
November 13 and 20 that the Employers were offering the Union a wage increase
of $13.50 a month but demanding the abolition of the union shop. Hemme con-
ceded that he read this news, but made no inquiry as to its accuracy. About
the middle of November , Randall spoke to the Employers and to Flynn suggest-
3 Hemme stoutly denied that he attached such conditions to his acceptance . I credit the
testimony of Haines . On November 6, Flynn wrote Hemme :
In reference to the pending negotiations between your Union and the automobile
dealers in Santa Barbara for whom we are negotiating, please be advised that, because
of the Union' s rejection of the Employers ' proposal on October 4th, and because of
your statement that the Union membership wished to revert back to its original pro-
posal and your subsequent reaffirmance of that position on October 22nd, and because
of your contention that there has been no understanding , tentatively or otherwise, in
reference to the agreement in whole or in part, in which regard we concur, we now
suggest that we meet immediately and start discussing not only the cost items of the
agreement but any other provisions that are to be contained therein.
The letter certainly implies that Hemme rejected the Canfield proposal and the record con-
tains no evidence that Hemme ever protested to Flynn that this evaluation of his position
was incorrect.
TRI COUNTY EMPLOYERS ASSOCIATION 663
ing that their position on the union shop made it extremely difficult to ac-
complish an agreement. About November 17 Owen called upon Flynn. According
to Owen, Flynn said that the Employers were being influenced by a Los Angeles
attorney well known for his activity in opposition to unions and that in effect
Flynn had no control over the bargaining position of the Employers. With
Fynn's consent, Owen the following week approached the dealers and met
with them in the office of George Young. His efforts to persuade them to a
different view in respect to a union shop were unsuccessful . With some de-
fections from the ranks of the strikers, the dispute persisted and on December
10 Hemme wrote to Flynn, rather curiously it would seem considering the date,
acknowledging receipt of Flynn's letter of October 2 and requesting further
meetings for negotiations. Flynn replied on December 14, saying he would be
glad to comply, but suggesting, because of the approaching holiday season, the
necessity of arranging several days in advance for any desired meeting. Flynn
went on to say that after the beginning of the year he would be available to
meet on short notice as in the past.
Melvin Thompson, a business representative of another lodge of the Union,
testified that in mid-December' he telephoned Flynn and asked him to meet
for the purpose of discussing a strike settlement. According to Thompson,
Flynn said it was useless to do so; that he was not in a position to negotiate
further.` In early January a meeting between the parties was scheduled and
on January 11 actually occurred. Thompson and Albert Smith, an assistant
business agent of another local of the Union, met with Flynn and Attorney
Haines. According to Thompson and Smith, Flynn said that he would not
submit any proposal to the Employers which embodied a union shop ; that
because of the number of strikers who had returned to the jobs the Employers
felt that they were in a secure position and woulti not meet with the Union.'
On January 14 Smith addressed a letter to the employers suggesting an agree-
ment to settle the dispute on the basis of a 4-percent wage increase and the
same union-shop clause that had been in effect in the past. This proposal,
although addressed to the individual Employers, was submitted through Con-
ciliator Randall. On February 8 Hemme wrote to the individual Employers
requesting a meeting for purposes of negotiation. On February 14 Flynn replied
in behalf of the Employers that Young was in the East and that a meeting
would be set upon his return. On February 27 Hemme again addressed letters to
the individual Employers requesting a meeting for negotiation. A date for
meeting was made for March 7. On that occasion the Union brought with
them a representative of the International Brotherhood of Teamsters. Flynn
said that he had no advance notice that any representative of the Teamsters
would participate in the negotiations, that the Employers were not prepared
for such an arrangement, and that they would not meet, absent prior notice,
with the Teamsters' representative present. In consequence the Teamsters'
agent left and the parties met. The meeting was concerned primarily with a
discussion of the proposal made by Smith in January. No disagreement was
expressed to any part of the proposal except that relating to the union shop.
On March 12 Hemme again asked for a meeting and Flynn replied that in his
opinion a basis for such a meeting should first be established as it seemed that
' Thompson placed this occurrence in mid-November. Other evidence persuades me to
accept the later date.
3 Flynn testified that he merely told Thompson that he could not arrange a meeting for
that day, a Saturday.
6Flynn testified that he told the union representatives that their best approach to the
Employers on the union -shop question was to enlist the aid of Randall.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the parties were in agreement on all issues other than the union shop. Flynn
said that the meeting of March 7 had adjourned when it seemed that nothing
further could be accomplished in that matter at the time with the understanding
that if either party had an alternative proposal to make the other would be
advised. Flynn went on to say that he had no objection to holding a meeting
if the time not be spent just to hold a meeting "for the record," and suggested
that Conciliator Randall explore matters between the parties before any actual
date was set. Hemme replied with a simple reiteration of his desire for a
meeting. Flynn answered that the date of April 9 was satisfactory and a meet-
ing then took place. Edwin M. Skagen, an international representative of the
Union, participated and through Conciliator Randall suggested that all the strik-
ers be returned to work ; that all conditions of the expired contract on which
there were no issues be reinstated ; and that all matters remaining go to
arbitration. After considerable discussion of this proposal, Skagen said, "In
order that there will not be any misunderstanding whatever about this, the Union
offers herewith to return all its striking employees to work unconditionally."
Flynn, according to Skagen, said that he would advise the Union within the next
day or two as to the Employers' reaction to the last proposal . On April 16
Flynn did so, writing Hemme that the unconditional offer had been submitted to
the dealers and that a survey showed in each case there was no vacancy in any of
the shops. Flynn asked that those strikers who desired to return to work
notify the Employers of their availability so that they could be reached when a
vacancy occurred, saying that it was the intention of the Employers to give
them first opportunity to fill job openings in their classifications. The next
meeting between the parties took place on April 29. On this occasion Hemme
told Flynn that the proposal to reinstate the old agreement to the extent that
the provisions were acceptable to the parties, that questions in dispute be arbi-
trated, and that the strikers be returned to work, was a "package" proposal to
be accepted or rejected in its entirety. Haines asserted that the Employers
could not discharge those who had been hired as replacements without violating
the Act. The discussion continued and during its course Hemme told Flynn
that Fitzhugh Gentry was probably the only striker who would not return to
work. The meeting ended without agreement and on May 6 Hemme wrote
Flynn asking that the Employers answer definitely the proposal in respect to
reinstating the old contract, the return of strikers, and arbitration of disputed
issues. On May 7 Flynn answered that the illness of Vincent Wood made it
impossible to answer that question. On May 10 Flynn again wrote Hemme
saying that he had conferred with the Employers and that their decision was
not to discharge anyone in order to provide an opening for a striker. Flynn
further requested Hemme to agree that all employees be given a wage increase
of $13.50 a month. Two days later Flynn wrote Hemme that he had inadvert-
ently neglected to state in the earlier letter that a cost-of-living increase was
being then given to employees represented by the Teamsters Union and invited
Hemme to state any objections he might have to a similar increase for mechanics.
On May 28 Hemme replied that the proposal was not acceptable to the Union.
On June 6 Flynn wrote Hemme that the Employers, because of Hemme's ob-
jection, had withheld any action in respect to wage increases and went on to
say that the Employers were willing to incorporate all of the clauses upon which
there was agreement into a written contract and again requested agreement
upon the proposal for a wage increase. On July 10 Flynn again wrote Hemme,
saying he would be glad to meet to discuss the questions remaining at issue.
On July 25 Hemme replied that he had discussed the matter of meeting with
Conciliator Randall and that the latter would communicate with Flynn for the
TRI COUNTY EMPLOYERS ASSOCIATION 665
purpose of arranging a meeting. On August 11 the parties met in the presence
of Conciliator Randall. In a meeting apart from union representatives, Flynn
and Haines asked Randall to tell the Union that they were willing to recommend
to the Employers the execution of a contract containing a modified union-shop
clause if the Union would indicate the possibility of agreeing to such a change.
The proposal was made to Hemme by Randall and Hemme replied that he first
wanted to know why the Employers objected to the union-shop clause contained
in the expired contract . Up to the close of the hearing no further bargaining
meetings were held between the parties.
A recital of the meetings and the correspondence between the parties from
August 21, 1951, to August 11, 1952, does not disclose any readily apparent
evidence of a refusal to bargain or of bad-faith bargaining. The interim
from June 30 to August 21, marking, first, the date of receipt of Hemme's
letter concerning the termination of the existing agreement , and, second,
the first meeting between Hemme and Flynn in connection with negotiating
a new contract , was reasonably explained by Flynn by the fact that both he
and Hemme for some time in July were engaged in an unfair labor practice
hearing involving another employer, late in that month participated in a
hearing before the Board in connection with a union-shop election theretofore
held at the Jack Martin shop, and by the fact that sometime during the first
3 weeks of August Hemme was on vacation . Other meetings were held at
reasonable intervals following the request of the Union, except perhaps during
the month of December when, if the testimony of Thompson is accurate, Flynn
refused to negotiate further. The conduct of Flynn and the Employers prior
to and subsequent to the time that Thompson made the telephone call in
mid-December is so entirely inconsistent with Flynn's alleged refusal to meet
that I do not believe Thompson's testimony in that connection. I do not
suggest that Thompson fabricated his testimony in connection with the in-
cident, but I am convinced either that he misunderstood Flynn 's reply to his
request or that Flynn did not clearly understand precisely what Thompson
was asking of him. The General Counsel stresses Hemme's testimony that he
did not receive the proposal sent by Flynn to Randall about November 15. The
General Counsel 's theory in this connection is that Flynn deliberately failed to
send a copy to Hemme; that as part of the same plan the strikers were permitted
to learn of its content with the result that the proposal was actually made to
the strikers in circumvention of the Union. Further, the argument goes, by
letting the strikers learn of the proposal and keeping Hemme in the dark, a
situation was engendered which had the potentiality of leading the strikers
to believe, since Hemme presumably made no mention of such an offer to them,
that he was withholding information from them concerning the status of
negotiations and that they must look to their Employers for an accurate and
current report about progress toward the strike objective . Aside from the
manifest improbability that Hemme could be kept uninformed about the Em-
ployers' proposal, I fail to see that the Employers reasonably could have ex-
pected to derive any benefit from such a scheme. I conclude that if Hemme
did not receive a copy of Flynn's letter to Randall it was through inadvertence
and he must have known , in substance, of the proposal if in no other manner
than through the news items in the Santa Barbara Union Labor News. The
core of the proposal, the one item which was unacceptable to the Union, was
the denial of a union shop. Hemme learned that the Employers had taken this
position no later than November 16 when he was so advised by Randall. During
the period from November 8 to December 10, Hemme made no request for a
bargaining conference with the dealers or with Flynn and did not even question
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Owen as to the latter's meeting with the dealers, accepting Owen's statement
that he had accomplished nothing.
The General Counsel's theory of bad-faith bargaining has several facets, some
of which have not to this point been mentioned. One, upon which he appears
to rely, is the position taken by the Employers In respect to the union shop.
When on August 21 or 30 Flynn suggested wages as the first item for discussion
and intimated that other matters could quickly become the subject of agreement,
this was tantamount to saying, according to the General Counsel, that no serious
issue was raised in respect to a union-shop clause by those Employers who in
the past had approved such an arrangement. I have no doubt that all parties
(except Martin) at first expected that whatever contract agreement was reached
would contain a union-shop provision. But the conditions which existed on
August 30 were not those prevailing on November 9. In the interim the em-
ployees of all but Martin had gone on strike and George Young had learned
that union-shop provisions were not contained in all contracts held by the
Union. I do not conceive this to be a situation where an employer manifests
bad faith by giving the appearance of agreement to a contract proposal but
later changing his position in order to avoid reaching a final agreement. It is
sometimes necessary, as perhaps it is here, to reiterate that the Act does not
compel agreement and that good-faith bargaining may be accompanied by shifts
in position to accord with shifting conditions. The question of a union-shop
provision was from the outset a bargainable one. The Employers after 2 months
of bargaining were unable to persuade the Union to accept an offered wage
increase, they found their employees on strike, and it appeared to them that
their freedom to select employees might be greater by refusing to grant a union
shop. I find no evidence of bad-faith bargaining in this maneuver.
Dealings between the Union and Tri County do not, however, constitute all of
the matters which in the theory of the General Counsel establish that the entire
course of bargaining is pervaded by a bad-faith attitude on the part of the Em-
ployers. George Young testified that in the expectation that the employees in
his shop were to strike October 13, he telephoned Hemme the day before and told
him he would no longer be represented by Tri County and henceforth would
bargain directly with the Union. Hemme expressed approval of this arrange-
ment and assured Young that no strike would occur at his shop the following
day. On Monday, October 15, Young, having changed his mind over the week-
end, told Hemme so. Hemme answered that a strike would result. On
Wednesday, October 17, in the belief that the Union was to conduct a meeting that
evening in which the question of strike would be considered, Young called
his employees together, told them that he and the other employers had offered
to increase their wages by 7 cents an hour, and asked that they take a vote
among themselves to decide whether they wanted to strike. Young told them
that he did not care to know the result of the vote. The suggestion was rejected
and no vote was taken. The next day the strike at Young's began. I do not
agree with the General Counsel that the meeting- of Young with his employees
constituted an attempt on his part to bypass the Union and deal directly with
them. At most Young told them the position that the Employers had taken in
connection with the Union's contract demands and urged them, in effect, not to
be stampeded into a strike. The evidence does not establish that Young con-
ducted a poll of his employees or requested that the result of any poll be reported
to him.
Eugene Perello, president of the Union's local and at the time of the strike an
employee of Vincent E. Wood, testified that in late November he and others on the
picket line in front of Wood's place of business were invited into the shop to
TRI COUNTY EMPLOYERS ASSOCIATION 667
listen to a talk by Wood. Many of Wood's striking employees attended. Wood
read a prepared statement to them saying that he had heard that his employees
thought an agreement could be reached by such a meeting, but that his hands
were tied, that he was obliged to bargain with the Union, and that he had been
doing so. Wood went on to say that he had heard some of the strikers were
confused about their rights to their jobs and that he had secured advice from
his attorneys to the effect that the jobs vacated by the srikers were still theirs
until they were replaced, but that upon replacement those newly hired would suc-
ceed to the rights of the striker. Wood said that the prospect of agreement with
the Union was not encouraging because the parties were farther apart now
than they had been 2 months ago. He told them that if they did come back
to work and later an agreement was reached with the Union, he could not law-
fully fire them, even if the Union demanded it ; that if the men did return to
work the jobs was theirs as long as they wanted them. He said that he had
never opposed giving the men a cost-of-living increase and that he assumed the
men were familiar with the last offer made. As to the union shop, Wood said
he did not care whether they belonged to the Union or not ; that anyone he hired
could belong or not as he desired, but that Wood did not plan to operate his
business on a union-shop basis. Wood said that he must start operating his
shop, but before he hired replacements he wanted to give the strikers an oppor-
tunity to come back to work ; that he would rather have them than a new crew.
He said that if they returned to work it would be under the same conditions
existing when the strike began. Wood went on then to say that it was not his
intention to bargain with them and that he was not offering any inducement for
them to abandon the strike. One of the strikers, Matt Geisel, asked what was
the matter with the Union, that it had represented the men for 5 years and why
should it now be thrown out. Wood answered that he was not there to bargain,
but if the men wanted to return to work the following Monday they would still
be paid their Christmas bonus and given a turkey as in the past and that he
would continue negotiating with the Union. In early December, a number of
strikers went to the Wood establishment, asked to see Wood, and inquired
under what conditions they could return to work. Wood told them that they
were a little late, that not all of them could be hired immediately as some
replacements were then on the payroll. But that those who did return would
still get their Christmas bonus and turkey. He went on to say that the men
could walk on the picket line until their legs fell off, but he would continue to
negotiate and could do so for 5 years without signing a contract. Wood said that
George Young had more mechanics than he had need for and Wood could hire
some of them, but he preferred to get back his old crew. At about this point
Business Agent Hemme came into the meeting, accused Wood of dealing directly
with the employees, and told him that he had to sign a contract once the terms
bad been negotiated. Wood retorted that his attorneys said he did not have to-
be could bargain for 5 years and still not sign.
In early November striker Geisel asked Wood what was delaying negotiations.
Wood answered that first one employer and then another was out of town and
until all were present it was difficult to do any actual negotiating. Wood went
on to say that the Union was asking for too much and was getting very poor
representation from Hemme ; that possibly the best thing the strikers could do
would be to get rid of Hemme as he was not good for their organization and was
not correctly reporting to the employees what the Employers were offering.
About November 21 striker Eldon DeWitt decided to return to work at George
Young's shop. DeWitt then borrowed $175 from the Young organization , giving
as security title to his automobile. On Monday, November 26, DeWitt returned
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to work. By deductions from his earnings over a period of several months the
$175 has been repaid.
On November 21 strikers William Perry and Earl Defenbaugh telephoned
Shelley Washburn, Young's general manager, and made an appointment to see
him. The next morning the three met at a hotel bar' and discussed what working
conditions would exist if the strikers returned. The strikers asked Washburn if
Young would hold any grudge against them because of their action. Washburn
said there would not be any such feeling and that conditions would remain the
same as they had been before the strike. Washburn was then asked if the rest of
the strikers from the Young shop could return and Washburn replied that all
could except Andy Smith, who had been replaced. On November 24 the same
two and another striker, Frank Henderson, met with Washburn and asked if
striker Martinez could be returned to work. Washburn again said that there was
room for everyone except Andy Smith and that Smith would be returned to work
at the first opening. Several of the strikers returned to work at Young's on
November 26 and after returning to work, during the months of November and
December, a number of them borrowed sums of money from the Young organiza-
tion ranging in amount from $125 to $200. All such loans have been repaid.
Sometime prior to November 21 Gus Johnson, Young's service manager , and the
direct supervisor of the striking employees, told Perry and Defenbaugh that
Young was going to hire some replacements ; that Young would rather have the
strikers back and that he would appreciate it very much if Perry and Defenbaugh
would return to work. On December 5 many of the strikers who had returned
to their jobs at Young's shop resigned from the Union. It is evident that the
resignations were signed in the Young shop after business hours and that Service
Manager Johnson was somewhere about the premises at the time. The evidence
does not, however, establish that the resignations were encouraged or procured
by anyone acting in behalf of Young.
Joseph Lessard, an employee of Danielson-Kovarno and a member of the
Union's negotiating committee, testified that about a week before the strike
Danielson called his employees together and told them what the Employers were
offering the Union in negotiations. In the discussion thus provoked Danielson
said that he did not think the Union's demands were extravagant but indicated
that he could not grant them because of his association in bargaining with the
other employers.
The record contains testimony indicating that on a number of occasions in-
dividual strikers were solicited by employer representatives to return to work.
Striker Richard Wunrow testified that Austin Hewlett, a partner in the business
of Jack Wood, and Ivan Longstreth, Jack Wood's service manager, asked Wun-
row to do so, Hewlett adding that the dealers would never sign the contract
with the Union. Striker Russell Johnson testified that shortly after the strike
began Willis Brooks, Vincent Wood's service manager, told Johnson he would
have to return to work or forfeit his job as he would be replaced. Joseph
Lessard testified that Ray Pemberton, assistant service manager for Jack Wood,
said during the strike that the men were foolish to stay out and suggested that
Lessard go back to work. Pemberton went on to say that if the men were to
get rid of Hemme the Employers would get together and sign a contract. Eu-
gene Ceriale, a striker at Danielson-Kovarno, testified that on several occasions
during the strike George Davis, the used-car manager for that organization, told
Ceriale that the Employers would not sign a contract with the Union and that
the strikers should return to work. Ceriale and Perello testified that in Febru-
7 Washburn paid for the drinks.
TRI COUNTY EMPLOYERS ASSOCIATION 669
ary, while on a visit to the Danielson-Kovarno shop on another matter, Danielson
told them that the dealers would never sign a contract with the Union. Striker
Jack Meuting testified that shortly after Thanksgiving his employer, Hewlett,
asked him why he did not return to work. Meuting answered that he was wait-
ing for a contract to be signed and Hewlett responded that Wood was not going
to sign one. Alfonso Perez testified that while he was on strike against Vincent
Wood, the sales manager for that organization, Adna Moore told him that Wood
would never sign a contract with the union.
Moore denied having such a conversation with Perez. Hewlett denied so
expressing himself to Meuting or Wunrow. Danielson denied saying that the
dealers would never sign a contract with the Union. Pemberton denied that
he suggested that the removal of Hemme would facilitate negotiations.
To paraphrase the language of Board Member Styles in his dissenting opinion
in the Harcourt case,8 we are dealing in this case with one of the most elusive
of the many concepts created by the Act-good-faith bargaining. Judgment as
to whether the standards of good-faith bargaining have been met requires com-
prehensive consideration of the Respondents' entire course of conduct during
the period in question I do not believe that the evidence recited fairly prepon-
derates in favor of a finding that the Respondents through Tri County exhibited
a lack of good faith in bargaining with the Union. The duty to bargain implies
only an obligation to discuss the matters in question in good faith, with the
sincere purpose of reaching some agreement. It does not require that either
side agree or make concessions. I believe that the Employers and Tri County
have fulfilled here the duty the Act imposes upon them in that connection. I
have, I think, given full weight to the General Counsel's contention that the
union-shop clause became an issue only after more than 2 months of bargaining,
during which all parties seemed to have assumed that it was a matter which
would not occasion difficulty. By the action of the Respondents in taking their
position on the union shop on November'S they were doing legitimately what nega
tiators might do in order to enhance an opportunity to gain a more favorable
bargain. It must be recalled that the Union about October 1 had offered to
contract on the basis of a 10-cent an hour raise and later had withdrawn this
offer so that on November 8 the Union's demand was for the 10-percent wage
increase contained in the originally proposed contract. The strike, which was
in effect at all shops except that of Martin on November 8, was, of course, an
economic weapon employed by the Union in an attempt to force the Employers
to accept the Union's proposals. Experience shows that weapons of such charac-
ter are not invariably effective and that a strike sometimes works to the dis-
advantage of a union. The record does not afford by direct evidence any basis
for a conclusion as to the economic position of the Employers after approxi-
mately 2 weeks of strike. Their action on November 9 in proposing a contract
without a union-shop clause does, however, suggest the possibility that the strike
was proving to be less harmful than either they or the Union may have antic-
ipated. Having felt by then the full thrust of the Union's economic weapon,
it may well have been that the Employers decided that their defensive position
was strong enough to withstand it and perhaps even turn it to advantage. On
November 8 the Employers by a letter notified their striking employees of their
intention to hire replacements, but that the strikers could return to their jobs
at any time before such action. Now, I agree that there is coercion in this.
Certainly a striker faced with the threat of replacement would pause to consider
his situation and ponder if it would not be better to return to work rather than
8 Harcourt & Co , Inc ., 98 NLRB 724.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
risk such a development . But this form of pressure is concomitant with the
action of striking for economic benefits and is one of the hazards of such action.
For the employer in effect to warn strikers of the possible or even probable
result of a continued strike is not the exercise by the employer of such coercion
as the Act forbids. After Owen talked to the individual dealers in mid-Novem-
ber and certainly after Thompson and Smith conferred with Flynn and Haines
on January 11, it was apparent that the parties had reached an impasse on the
union shop . Neither party in collective bargaining is required to meet in-
terminably merely to listen to the same arguments with no real probability of
concord. In my opinion, Flynn in his letter of March 27 very properly reminded
Hemme of the posture of the negotiations and suggested that before another
meeting be held some exploring be done to see if a possibility of agreement
might exist by means of a different approach and that a meeting not be held
merely "for the record." Although I agree with the General Counsel that the
Employers could not lawfully refuse to meet with the Union because the Union
had chosen to arrange for the presence of an officer of the Teamsters ' organiza-
tion to assist in negotiations, the fact is that the meeting was held and that
no delay resulted from the Employers ' position in that connection.
I have recited the instances in which representatives of the various employers
on various occasions solicited strikers to return to work. I suppose that during
the course of a strike most communications from employer to striker have at
least an underlying content of such solicitation . Whether this be done by means
of letters , newspaper advertisements , or by the more direct approach used
here, would seem to be of little moment. Where such conduct has been found
to be in violation of rights guaranteed in the Act, it has invariably been attended
by some form of threat or promise of benefit , or as a device to undermine the
status of the Union and to deal directly with the employees . I do not find the
solicitation existing under the facts in this case to be of such character. Many
of the strikers were asked to return to work. Some of them responded . Others
did not. None was promised a benefit or threatened with any loss in connection
with the solicitation . I find no refusal to bargain in connection with such
incidents.
I find no violation of the Act in the prepared statement read to the strikers
by Vincent Wood in late November or in his offer to take the strikers back
on the same terms existing before the strike including the payment of the usual
Christmas bonus and gift of a turkey . I do credit the testimony that in the
December meeting he said that he could negotiate for 5 years without signing
a contract . In another context I would consider such a remark to be so clearly
an expressed determination not to come to agreement with a bargaining repre-
sentative as to constitute a refusal to bargain as well as interference , restraint,
and coercion in respect to rights guaranteed in Section 7 of the Act. Remarks
attributed to Danielson , Hewlett, Moore, and Davis fall into the same category.
I have little reason to suppose that the witnesses who testified that such remarks
were made fabricated their testimony . On the contrary I am sure that they
testified truthfully . But to consider these prophecies standing alone and torn
from the context of surrounding happenings is to ignore that Tri County was
contemporaneously bargaining with the Union in a good-faith attempt, I find,
to arrive at a contract . I am convinced , and find , that the statements concerning
never signing a contract were made in such a climate of understanding that
both the listener and utterer understood them to mean that the dealers would
not agree to the union shop, persistently sought by the Union.
I find nothing in the meetings Washburn had with the strikers to support a
theory of individual bargaining or bad -faith bargaining . Washburn offered
TRI COUNTY EMPLOYERS ASSOCIATION 671
no inducement to the strikers to abandon the strike and return to work and
did not utter any threats in that connection. He did tell them that they could
return under the same conditions existing before the strike and, in response to
their questions, said that others would be treated in the same fashion. The
fact that these strikers inquired as to job opportunities for others who might
be interested in returning to work does not, in my opinion, establish the meet-
ings as "bargaining" meetings or characterize Washburn's conduct as individual
bargaining in derogation of the Union's status. Desiring to abandon the strike
if they could do so without retaliation from their employer, the strikers of
course would not seek the representation of the Union in such a matter.
I do not pass upon the conflict in testimony concerning remarks to the effect
that Hemme was affording the employees poor representation and that progress
toward negotiating a contract would be speeded if he was replaced. Flynn
told other union negotiators that Hemme did not constitute a stumbling block
to agreement. Such off-hand and casual comments, if made, do not appear to
have been in the nature of appeals to the men to abandon the Union. As Re-
spondents continued to bargain with the Union, I attribute no significance to
them.
I find that Respondents did not refuse unlawfully to bargain with the Union
and that the strike did not at any time become an unfair labor practice strike.
The first proposal made by the Union on April 9, to return all strikers to
their jobs, to reinstate the old contract in noncontroversial matters, and to
submit remaining issues to arbitration, was rejected by the Respondents.
Surely they were not required to accept it. On more than one subsequent occa-
sion the Union, as it was entitled to, rejected the offer of a $13.50 wage in-
crease. The Union's second offer-to return the strikers unconditionally to
work-was answered by the statement that no vacancies existed but with the
offer to afford all strikers who applied for work first opportunity to fill any
opening. On May 10, Alfonso Perez and Eugene Perello wrote Vincent Wood
offering to return to work. On the same date Eugene Ceriale and Joseph Les-
sard addressed the same offer to Danielson-Kovarno. Eugene Lugo, who quit
his employment with Vincent Wood about a week before the strike began, testi-
fied that in June 1952 Pete Volden, foreman in Vincent Wood's body shop,
offered him a job. Lugo refused the offer and suggested that Perez would take
it. Volden replied. according to Lugo, that he did not want Perez.
Volden denied that he ever had a conversation with Lugo concerning a job
and denied that any question of hiring Perez was discussed. Perez returned
to work for Vincent Wood later in the same month.
There is little reason to suspect that Lugo (not one of the strikers) testified
to a conversation that did not occur and I am somewhat puzzled to under-
stand why Volden would have denied the happening if it took place. But one
of them is wrong. If Lugo was offered a job that should have been given
to Perez, the latter would be entitled to be made whole for whatever loss in
wages he sustained thereby only if he was passed over for a discriminatory
reason. I find that Lugo had the conversation with Volden as he outlined
in his testimony and that Volden either suffered a lapse of memory or decided
that a denial would best serve the interest of his employer. Even so, I do
not consider that discrimination has been proved. One may speculate, of course,
that Perez was not then hired because of his participation in the strike and
perhaps arrive at the correct answer but a higher standard of proof must be
met to establish a violation of the Act. I find no discrimination in the failure
to hire Perez at the time the job offer was made to Lugo.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the spring of 1951 an election to authorize the negotiation of a union-shop
agreement was held among the employees of Jack Martin . The result was
inconclusive and in late July a hearing was conducted by the Board in respect
to certain challenged ballots to determine the supervisory status of the persons
casting such ballots. One of these, Christopher Torres, testified at that hearing
that he possessed no authority to hire or discharge employees or any of the
other attributes of supervisory status. The issues litigated at that hearing
never were decided by the Board as subsequent amendments to the Act made
them moot. At the hearing on the instant complaint Torres testified that his
earlier testimony on the challenged ballots was fabricated upon the solicitation
of Thomas A. Williams , a partner in and general manager of Jack Martin.
According to Torres ' testimony in this record , he began work for Martin in
October 1950 and quit in late 1951 or early 1952 . After a short time, according
to Torres , one John Peterson applied to him for a job . Torres then telephoned
Williams, whose office was several blocks away from the body shop where Torres
worked, and told Williams that he was hiring Peterson . Torres explained that
by his arrangement with Martin at this time he received 50 percent of the
gross income from the body shop and was permitted to hire anyone he chose,
all to be paid from this fund . According to Torres , he spent much of his
time away from the shop soliciting business and found it profitable to hire
workers at $2 an hour to be paid from his share of the body shop income. In
the spring of 1951 , still according to Torres , by arrangement with Williams, he
hired one Lawrence Peterson as a replacement for John Peterson because of a
belief shared by Torres and Williams that John Peterson favored the Union and
that Lawrence Peterson did not. Before the hearing on the challenged ballots
Williams told him, Torres testified , to say that he never hired anyone, fired
anyone, or made any recommendations in such respect , or in any other manner
acted in the capacity of a supervisor.
Williams denied that Torres was a supervisor or that he had ever instructed
Torres to falsify his testimony in any respect. Williams explained that prior
to the hearing on the challenged ballots he told Torres that it would be the
purpose of the Union in that hearing to get him to admit he had hired or fired
or in some fashion to establish him as a supervisor and that he had then told
Torres to answer the questions carefully but truthfully so that there should
not be any confusion as to his status . Williams denied that Lawrence Peterson
was hired because of any consideration of Peterson's attitude toward the Union,
and explained that Peterson , in addition to being a body man, was skilled as
an automobile painter and could fill in for the regular painter during vacation
periods. Williams also denied that Torres had at any time done anything
in connection with hiring other than perhaps to obtain applicants for Williams
to consider.
There is flat contradiction in the evidence as to this alleged violation and
considerable argument has been made by counsel for Martin that Torres has
demonstrated his unreliability as a witness by giving 2 versions of the facts-
1 under oath at the hearing on the ballots and the other before me. It is
true that a witness who testifies to conflicting sets of facts must expect that
his latest and assertedly truthful testimony will be scrutinized with considerable
care and it is true that even in the hearing before me Torres' testimony was at
points somewhat confused . There is, too , a question of bias to be considered.
Torres testified that when he quit his job with Martin he did so in the belief
that he was not being fairly treated and in some resentment . However, Wil-
liams has an obvious interest in avoiding a finding of unfair labor practices
against his company . Despite the inconsistencies in Torres ' testimony, both
TRI COUNTY EMPLOYERS ASSOCIATION 673
in 1951 and before me, and despite his feeling of resentment against Martin,
I am convinced that he did testify truthfully in this hearing concerning his
status as a supervisor and that Williams did in fact instruct him to color his
testimony in connection with the hearing on the challenged ballots. By such
instruction, Jack Martin through Williams interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed by Section 7 of the
Act and thereby violated Section 8 (a) (1) of the Act.
Akira Endo, a mechanic in the employ of Van Etta's, testified that in January
in 1952 Van Etta came into the shop where Endo was working and asked Service
Manager James Kelly if there were any union members in the shop. Kelly
answered that he did not know. Endo then approached Van Etta and said
that he had belonged to the Union for several years. Van Etta made no response
and walked away. Thereafter, in social conversations at Kelly's home and
elsewhere, Kelly told Endo that he did not think much of the Union, that he
would not belong to it, and if he were Endo he would get out. Jack Van Etta
testified that he received a letter from the Board, perhaps in January, and that
he went immediately to Kelly's desk in the shop and asked Kelly what he knew
about it. Van Etta testified that he believed he was angry at the time and
probably asked Kelly "who in the name of hell belongs to the Union around
here?"
I do not think that the evidence establishes that Van Etta's inquiry to Kelly
was actually addressed to the ears of any employee within hearing. Therefore
I do not find that Van Etta interrogated his employees in connection with uni-
membership as alleged The advices given by Kelly to Endo appear to et
pressions of views, argument, or opinion unaccompanied by threats or promise,
of reward I do not regard them as violative of the Act.
Harvey White, a striker, was employed by Jack Wood at the time the strike
began. In December. learning that Kelly was seeking to hire a "front end" man,
a qualification which White possessed, he applied to Kelly for the job. According
to White, Kelly asked how long he had done such work and inquired if he be-
longed to the Union. White spoke of his experience and said that he was a mem-
ber of the Union and on strike. Still according to White, Kelly then asked if
White could get a withdrawal from the Union, explaining that Van Etta's did
not want to get "involved" in the strike. White answered that he thought not,
but would try. Kelly went on to inquire if White would be a permanent employee
or if he would desire to return to Jack Wood shop when the strike ended. White
answered that as long as conditions were "normal" and the pay satisfactory he
would stay with Kelly. White went to the office of the Union and learning that
he could not secure a withdrawal abandoned the strike and returned to his job
at the Jack Wood shop the following day.
Kelly testified that he became service manager at the Van Etta's shop in
November 1951 and almost immediately began an attempt to find a mechanic
competent to operate certain front end equipment which was not being used.
According to Kelly, because he so recently had assumed the duties of service
manager, he did not then presume to hire anyone without the approval of Van
Etta. When White made his application, according to Kelly, Van Etta was away
so the sales manager, Williams, sat in on the interview.' Kelly admitted that
when be learned from White that the latter was on strike he asked if White
could get permission from the Union to cease picketing and come to work in,
a nonunion shop White said, according to Kelly, that he would try to do so,
but never returned to advise Kelly of the result of his effort.
9 Williams appears to have done no more than listen I infer that he was present in the
stead of Van Etta to approve or disapprove White's hire.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence in connection with this incident is, in sum, that White applied for
work , that he was qualified to fill the job opening which existed , and that the
only obstacle to his immediate employment was his status as a striker . There is
evidence which has been recited that Kelly felt that employees were unwise to
ally themselves with labor organizations and that he so advised another worker
in the shop. I am not convinced, however, that this feeling on the part of Kelly
constitutes the full explanation of White's failure to get the job he asked for.
Although I credit White's testimony that Kelly said the former would have to
withdraw from the Union in order to be hired, I believe that Kelly's concern was
that Van Etta's might by hiring White become in some fashion involved in the
strike. It is fact that White possessed the qualifications to fill the job, that his
services were needed by Van Etta's, and that his failure to get work was a direct
result of his participation in the strike. White had a protected right to engage
in a strike against his employer and his action in that respect did not provide
Kelly with a lawful reason for refusing to hire him. White did not secure the
withdrawal that Kelly desired and did not report further to Kelly. But this is of
no moment. The discrimination against White occurred when Kelly told him
he must secure a withdrawal before he could be employed. By imposing this
condition Kelly discriminated in regard to the hire of White because of the
latter's participation in a lawful, concerted activity sponsored by the Union and
thereby discouraged membership in and activity in behalf of the Union. I find
that by refusing to hire White in December 1951, Van Etta's, through Kelly,
violated Section 8 (a) (3) of the Act thus interfering with, restraining, and
coercing White in the exercise of rights guaranteed by Section 7 of the Act,
thereby violating Section 8 (a) (1) of the Act.
Eugene Perello testified that in late December Kelly remarked to him that the
Van Etta's shop was so busy that another man was needed . Perello suggested
that he was available and Kelly at first seemed to be willing to hire him but,
when reminded that Perello was a striker, said that, Perello would have to get
a withdrawal from the Union . Walter H. Worthen , a striker , testified that he
went to the Van Etta's shop in late December to apply for work and that Kelly,
saying that no jobs then were open, suggested that he try again in a few weeks.
According to Worthen in early January he again asked Kelly for work. Kelly
said that he might be able to hire Worthen , but, learning that Worthen was a
member of the Union and on strike, said that Worthen would have to sever his
connection with the Union in order to be employed . Eugene Ceriale , who was
present, testified that he suggested that a letter from the Union stating that
Worthen was free to work where he pleased should satisfy Kelly . Kelly said,
according to Ceriale , that such a letter would not be enough ; that Worthen
must sever all connection with the Union to qualify for employment as Kelly
did not want to become "involved" in anything. Worthen testified that a year
or two before this incident when he and Kelly were working in the same shop
Kelly said that if he ever became service manager he wanted Worthen to work
for him.
Kelly testified that he, Perello , and Worthen had once worked for the same
employer, that he knew both of them to be heavy-duty mechanics, and that
neither was one he desired as an employee . According to Kelly, he had no need
for such a mechanic in December or January and, except for a man hired on a
temporary basis in April , has not hired any. Kelly denied that he had any
conversation with either Perello or Worthen in which they applied to him for
work or in which he discussed the possibility of either working for Van Etta's.
I credit Kelly's testimony that he was not , in December or January, seeking
to hire mechanics with the qualifications of Perello and Worthen. I also credit
TRI COUNTY EMPLOYERS ASSOCIATION 675
Kelly's testimony that he did not, at that time at least , exercise a free hand in
hiring, believing the testimony that Van Etta made the final decisions in such
matters. I am convinced , however, that neither Perello nor Worthen imagined
the conversations they testified about and that the job discussions with Kelly
did in fact occur . I find , therefore, that Perello , in a somewhat casual fashion,
and Worthen , more seriously , did apply to Kelly for work and that each was
told in effect that he could not be considered for employment because of his
connection with the Union and the strike. Because I am not satisfied that a
job or jobs existed which could or would have been filled by either Perello or
Worthen were they not so disqualified , I do not find that either was actually
deprived of employment . Nonetheless I find that by conditioning consideration
of their applications upon withdrawal from the Union and complete severance
from union activity, Kelly imposed a discriminatory standard which necessarily
discouraged membership in and activity on behalf of the Union and that through
Kelly, Van Etta 's thereby violated Section 8 (a) (3) of the Act. Thus, Van
Etta's interfered with, restrained, and coerced Perello and Worthen in the exer-
cise of rights guaranteed in Section 7 of the Act and thereby violated Section
8 (a) (1) of the Act.
Albert A. Roberta, a striking employee of Jack Martin, testified that in mid-
December while still on strike he applied for work to Claude Phipps, telling
Phipps that he was a mechanic specializing in hydramatic transmissions.
Phipps said , according to Roberta, that he had need for such a mechanic and
would like to put Roberta to work. However, when Roberta told Phipps that
he was on strike against Jack Martin , Phipps said "that sort of puts a different
light on it." Roberta assured Phipps that he would not give him any trouble
and asserted that the Union would approve . Phipps said, still according to
Roberta, that he would consider the matter , but that he had had no labor trouble
and wanted to stay away from it, suggesting that if he put Roberta to work it
was possible that the Union would picket his shop . Phipps told Roberta to
return in a few days. According to Roberta he did so and was told that Phipps
could not put him to work ; that Phipps wanted to keep his "skirts clean."
Phipps testified that Roberta applied to him for work in December, that
Roberta then said he was a striker and was experienced in bydramatic trans-
missions . Phipps told him to come back in a day or two and in the meantime he
would check on his qualifications . After Roberta left , Phipps called Foreman
Werly at the Jack Martin shop and asked what kind of a mechanic Roberta
was. Werly answered that Roberta was a "number one" hydramatic man.
According to Phipps, this information caused him to lose interest in Roberta
because Phipps sold very few cars with hydramatic transmissions and had no
need for such a mechanic . According to Phipps, Roberta never returned or
communicated with him in any way regarding a job . Phipps testified that at
the time he was seeking a general automobile mechanic with some executive
ability who might act as shop foreman . Phipps denied that any consideration
of striking or union membership came into play in connection with Roberta's
application but admitted that Roberta said something about clearing the matter
with the Union.
There is evidence that Roberta , while at Jack Martin's shop , worked almost
exclusively on hydramatic transmissions . Whether he was equally skilled in
other work generally performed by a mechanic in an automobile shop does not
appear . It does not seem, however , even from Phipps' own testimony , that the
specialization of Roberta in the field of hydramatic transmissions was consid-
ered by Phipps to operate as a disqualification on the occasion of Roberta's first
application . Phipps testified , as did Roberta , that the latter then said he was
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a hydramatic man. If it were true, as Phipps later in his testimony said, that
he had no need for and was not interested in hiring a hydramatic mechanic, it
seems probable that he would have said so immediately and not have told
Roberta to return in a few days after a check of his qualifications had been made.
The information that Phipps received from Foreman Werly was no more than a
substantiation of Roberta's claim to be a hydramatic mechanic. Hence, it is
difficult for me to believe that Phipps then came to a conclusion, as he testified,
that he could not use Roberta. He learned nothing more from Werly than he
already had reason to believe. I do not believe that Roberta fabricated his
testimony that Phipps showed concern about the fact that Roberta was a union
member and a striker and I do not credit Phipps' assertion that this factor was
not given consideration by him. Convinced as I am of the reliability of
Roberta's testimony to this point, I am also convinced that he testified truth-
fully concerning his return to Phipps' shop and that Phipps then told him that
he could not put him to work, implying that he feared some complication with
the Union. It may be necessary to say at this point that one on strike is entitled
to the same consideration in applying for work as any other applicant ; that one
has acted concertedly with others in a strike does not disqualify him for other
employment. I am convinced that the operative factor in Phipps' decision not
to hire Roberta was that Roberta was on strike. I find that by refusing to hire
Roberta Phipps discouraged membership in and activity on behalf of the Union
thus interfering with, restraining, and coercing Roberta in the exercise of rights
guaranteed by Section 7 of the Act and that Phipps thereby violated Section
8 (a) (3) and (1) of the Act.
Russell Johnson, a striker, testified that he had at one time been employed by
Thomas I. Petersen, but believing his job there not to be a permanent one quit
it to go to work for Vincent Wood. About a week after quitting, according to
Johnson, he had a conversation with Petersen's service manager, Lee Cochran,
who said, according to Johnson, that if the latter ever became dissatisfied with
his work at Vincent Wood's shop, Cochran would make room for him. On
November 27 or 28, still according to Johnson, he went to see Cochran to ask
him for a reference as he wished to seek work elsewhere. Cochran inquired.
Johnson testified, if he would be interested in working again for Petersen.
Johnson said he would like to think it over and would let Cochran know the next
day. When on the following day Johnson told Cochran that he would like to
work for him, Cochran asked if Johnson would be active in the Union and would
try to organize the employees in Petersen's shop. Johnson assured him that he
would not ; that he was merely looking for satisfactory employment. Cochran
said that he had the approval of the general manager to employ him and told
Johnson to bring in his tools the following Monday to go to work ; that a man
in the shop would be transferred to the used-car department to make room for
him. Later in the same afternoon Cochran telephoned Johnson, saying that
someone had thrown a monkey wrench in the works ; that Petersen had been
at a meeting (presumably with other employers) where it was decided that none
of the men on strike were to be hired.
Lee Cochran testified that as service manager he assigned mechanics to their
jobs and was in charge of hiring. He was not questioned in connection with
the Johnson incident. Petersen was not represented by counsel, but testified
that he learned of Cochran's intention to hire Johnson and ordered him not to
do so for the reason that although Johnson was reported to him as a good me-
chanic, he was displeased because Johnson at the end of his first employment
with Petersen had left suddenly and without notice. Peterson determined then,
TRI COUNTY EMPLOYERS ASSOCIATION 677
he testified , that he would never rehire Johnson and for that reason forbade
Cochran to do so.
Russell Johnson was a completely credible witness, and I do not believe that
the reason offered by Petersen for canceling Cochran 's commitment to Johnson
is the true one. If it were I am sure that Petersen would have had Cochran
testify to it. As the record stands, Johnson has related what passed between
him and Cochran and Cochran has not been questioned about it. In making
these observations, I have not failed to consider that Petersen was not repre-
sented by counsel. However, before Petersen testified I told him of the state
of the record as it applied to the case against him and it is my opinion that
even a layman would quickly see the necessity for calling Cochran as a witness
if Cochran could truthfully deny the remarks attributed to him by Johnson.
I find that Russell Johnson was refused employment by Thomas I. Petersen
through Lee Cochran on or about November 28, 1951, and that his application
for employment was refused because he was then engaged with others in a strike
against another employer. I find, therefore, that by the refusal to hire Johnson,
Thomas I. Petersen discriminated against him because of his membership in and
activity on behalf of the Union, thereby discouraging membership in the Union,
and that by this action Thomas I. Petersen interfered with, restrained, and
coerced Johnson in the exercise of rights guaranteed by Section 7 of the Act,
thereby violating Section 8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE.
The activities of some of the Respondents, set forth in section III, above, oc-
curring in connection with their operations, described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the evidence does not establish any violation of the Act
by Tri County Employers Association ; George Young, Incorporated ; Jack V.
Wood ; Vincent E. Wood ; and Danielson-Kovarno, it will be recommended that
the complaints as to these Respondents be dismissed in its entirety . Having
found that Van Etta 's Inc. discriminated in regard to the hire of Harvey
White, Eugene Perello, and Walter Worthen ; that Thomas I. Petersen did so in
respect to Russell Johnson ; and that Claude Phipps was guilty of the same
violation in respect to Albert Roberta, it will be recommended that each of
these Respondents cease and desist from such conduct and take certain affirma-
tive action to remedy the violations.
Having found that Jack Martin interfered with, restrained, and coerced
employees in the exercise of their statutory rights, it will be recommended that
Martin cease and desist from this conduct.
Harvey White suffered no loss of earnings. The effect of the discrimination
against him was to cause his abandonment of the strike and his return to his
former employment at the Jack Wood shop. He does not now desire to work
for Van Etta's and I think it reasonable to assume that once the decision was
reached to abandon the strike, he lost interest in employment by Van Etta's.
No recommendation in respect to hire or back pay will be made as to him. The
discrimination against Eugene Perello and Walter Worthen occurred in a setting
which did not include any immediate opportunity for employment. I shall not
recommend hire or back pay in their cases.
"157965-54-vol . 103-44
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson and Roberta were not hired by Petersen and Phipps, respectively,
because they were strikers and union members. It will be recommended that
each be offered immediate employment by the employer to whom he applied in
the same job he would have been given absent discrimination and that each be
made whole for any loss of earnings suffered as a result of the discrimination
against him 10
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. Jack Martin, Van Etta's Inc., Thomas I. Petersen, and Claude Phipps
have engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
2. Van Etta's Inc., Thomas I. Petersen, and Claude Phipps have engaged in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
10 This is to be accomplished by paying to each that sum of money he would have earned
as wages from the date he would have been hired to the date of offer of employment less
his net earnings during that period (Crossett Lumber Company, 8 NLRB 444, 497, 498).
The amount of such payments shall be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289, 291, 294. Earnings in
one quarter shall have no effect upon the back-pay liability for any other quarter. an this
connection it will be recommended that Petersen and Phipps make available to the Board
or its agents upon reasonable request, payroll and other records to facilitate computation
of the amount of back pay due.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National
Labor Relations Board, and in order to effectuate the policies of the National
Labor Relations Act, we hereby notify our employees that:
WE WILL NOT by procuring false or inaccurate testimony to be given in
matters before the National Labor Relations Board affecting the rights of
our employees under the terms of the National Labor Relations Act or in
any other manner interfere with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form labor organizations,
to join or assist INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE
#56, or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3) of
the Act.
JACK MARTIN,
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.
TRI COUNTY EMPLOYERS ASSOCIATION 679
Appendix B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT refuse to hire any applicant for employment because of
membership in a labor organization or participation in a lawful strike.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations , to join or assist INTERNATIONAL ASSOCIATION OF MACHINISTS,
DISTRICT LODGE #56, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL offer immediate employment to Albert Roberta without prejudice
to any seniority or other rights and privileges he would have enjoyed had he
been hired on his first application, and make him whole for any loss of pay
suffered as a result of the discrimination against him.
CLAUDE PHIPPS,
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.
Appendix C
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT refuse to hire any applicant for employment because of
membership in a labor organization or participation in a lawful strike.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self- organization , to form labor
organizations, to join or assist INTERNATIONAL ASSOCIATION OF MACHINISTS,
DISTRICT LODGE #56, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL offer immediate employment to Russell Johnson without preju-
dice to any seniority or other rights and privileges he would have enjoyed had
he been hired on his first application, and make him whole for any loss of
pay suffered as a result of the discrimination against him.
THOMAS I. PETERSEN,
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.