Bob Morgan Motor Co., Inc.

National Labor Relations Board - Board Decisions

Jul 22, 1953

106 N.L.R.B. 334 (N.L.R.B. 1953)

334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatory discharges , James Edwin Shiflett on October 4 , 1949 , and Harold Shiflett on
October 11, 1949 , to the date of the offer of reinstatement less their net earnings during such
periods in accordance with the formula set out in F. W. Woolworth Company, 90 NLRB 289.
It has also been found that the Respondent on July 13, 1949, discriminated in regard to
the hire and tenure of employment of Chester Magouyrk by discriminately demoting him from
his position of doffer to roving hauler The undersigned will, therefore, recommend that the
Respondent offer to Chester Magouyrk immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights and priv-
ileges and make Chester Magouyrk whole for any loss of pay he may have suffered by reason
of such discrimination by payment to him of a sum of money equal to that which he would have
earned as wages from July 13, 1949, the date of his discriminatory discharge, to the date of the
offer of reinstatement less his net earnings during such period in accordance with the formula
set out in F. W. Woolworth Company, 90 NLRB 289.
It has also been found that the Respondent by various acts interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by the Act. It will therefore
be recommended that the Respondent cease and desist therefrom
Upon a consideration of the record as a whole, the undersigned is convinced that the Re-
spondent's conduct in employing the many unfair labor practice tactics it did in order to pre-
vent the unionization of its employees indicates an attitude of opposition to the purposes of
the Act generally. In order, therefore, to make effective the interdependent guarantees of
Section 7 of the Act, thereby minimizing industrial strife which burdens and obstructs com-
merce, and thus effectuate the policies of the Act, it will be recommended that the Respondent
cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the
Act
On the basis of the foregoing findings of fact and upon the entire record, the undersigned
makes the following
CONCLUSIONS OF LAW
1. Textile Workers Union of America, CIO, is a labor organization within the meaning of
Section 2 (5) of the Act
2 By discriminating in the hire and tenure of employment of James Edwin Shiflett and
Harold Shiflett by discharging them on October 4 and 11, 1949, respectively, and of Chester
Magouyrk by demoting him on July 13, 1949, thereby discouraging membership in Textile
Workers Union of America, CIO, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act
4. By discharging Overseers Marion K Shiflett and Seybourn Pilkington the Respondent
did not violate Section 8 (a) (1) of the Act
5 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.]
BOB MORGAN MOTOR COMPANY, INC.and INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL. Cases Nos. 16-CA-529
and 16-CA-546. July 22, 1953
DECISION AND ORDER
On May 29, 1953, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceedings, finding
that the Respondent had not engaged in the unfair labor practices
alleged in the complaint and recommending-that the complaint
be dismissed in its entirety , as set forth in the copy of the
Intermediate Report attached hereto. Thereafter the General
106 NLRB No. 62.
BOB MORGAN MOTOR COMPANY, INC. 335
Counsel filed an exception to the Intermediate Report and a
supporting brief.
The Board' has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed . The rulings are hereby affirmed. The Board
has considered the Intermediate Report , the exception and
brief, and the entire record in this case , and hereby adopts
the findings , conclusions , and recommendations of the Trial
Examiner , with the following additions and modification:
The Trial Examiner found that the Respondent had not violated
Section 8 ( a) (1) of the Act by alleged coercive remarks to
employees , and had not discriminated against Byron Johnson
in violation of Section 8 (a) (3) and (1) of the Act. In the absence
of any exceptions thereto , we adopt these findings.
The General Counsel excepted only to the Trial Examiner's
failure (1) to find that Respondent violated Section 8 (a) (5) and
8 (a) (1) of the Act by unilaterally increasing the wages of two
employees ; and (2) to recommend the issuance of a remedial
order based on such conduct. We find, as did the Trial Examiner,
that the Respondent was under a duty to consult with the Union
as the representative of the employees before changing the
wage scale of any of the employees in the unit . We find further
that the Respondent ' s failure to fulfill that duty violated Section
8 (a) (5) and (1) of the Act. However , in view of the isolated
character of Respondent ' s conduct , and in view of the Trial
Examiner ' s finding , not excepted to by the General Counsel,
that the record of the negotiations between the Respondent and
the Union does not show any lack of good faith on the part of
the Respondent in the conduct of such negotiations , we find
that it would not effectuate the policies of the Act to issue a
remedial order based upon such conduct alone . Accordingly,
like the Trial Examiner, we shall dismiss the complaint.
[The Board dismissed the complaint.]
iPursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board
has delegated its powers in connection with this case to a three- member panel [Members
Houston, Styles , and Peterson].
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon two separate charges duly filed on June 30 and August 12, 1952, by International As-
sociation of Machinists , affiliated with American Federation of Labor , the General Counsel
of the National Labor Relations Board , herein respectively called the General Counsel and the
Board , by the Regional Director for the Sixteenth Region (Fort Worth , Texas), issued his
complaint on February 25, 1953.1 against Bob Morgan Motor Company, Inc., Ada , Oklahoma,
herein called Respondent , alleging therein that Respondent had engaged in and was engaging in
unfair labor practices affecting commerce , within the meaning of Section 8 (a) (1). (3), and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, as amended , 61 Stat . 136, herein
called the Act
ion the same day the said Regional Director , pursuant to Section 102.33 (b) of the Board's
Rules and Regulations , Series 6, as amended , issued an order consolidating the above-
numbered cases.
3 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of the complaint , charges, order of consolidation , and notice of hearing were duly
served upon Respondent and upon the Union
With best respect to the unfair labor practices , the complaint , as amended at the hearing,
alleged in substance that : ( 1) Respondent since on or about June 23, 1952, has refused to bar-
gain collectively with the Union although it was then , and still is, the duly designated collective-
bargaining representative of Respondent ' s employees in a certain appropriate unit, (2) Re-
spondent on or about June 10, 1952, and thereafter , engaged in certain stated conduct and made
various statements which interfered with, restrained , and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act, (3) because of Respondent ' s unlawful
conduct, Respondent ' s employees ceased work concertedly and went on strike, and (4) Re-
spondent , on or about November 8, 1952, sent letters to striking employees notifying them
that the company would have replacements in the shop and that the tools of the striking em-
ployees must be removed from Respondent ' s premises not later than November 12, 1952,
although some of the strikers have never been replaced and others were not replaced for many
weeks after the date of said letters
On March 2, 1953, Respondent duly filed an answer denying the commission of the alleged
unfair labor practices.
Pursuant to notice , a hearing was duly held on March 24 and 25, 1953 , at Ada, Oklahoma,
before the undersigned , the duly designated Trial Examiner . The General Counsel and Re-
spondent were represented by counsel and the Union by an official thereof All parties par-
ticipated in the hearing and were afforded full opportunity to be heard , 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 , Respondent 's motions to dismiss
a portion of the complaint and to strike certain evidence were denied with leave to renew. At
the conclusion of the taking of the evidence , the General Counsel moved to conform the pleadings
to the proof with respect to minor inaccuracies. The motion , as confined , was granted without
objection . Respondent ' s counsel then moved to strike certain testimony . The motion was
denied. Respondent's counsel also moved to dismiss the complaint for lack of proof . Decision
thereon was reserved The motion is disposed of in accordance with the findings , conclusions,
and recommendations hereinafter set forth Oral argument was then had in which the General
Counsel and Respondent ' s counsel participated The parties were then advised that they might
file briefs with the undersigned on or before April 14, 1953 . A brief has been received from
Respondent ' s counsel which has been carefully considered In addition , Respondent ' s counsel
filed with the undersigned proposed findings of fact and conclusions of law ; these are disposed
of in accordance with the findings , conclusions , and recommendations set forth below.
Upon the entire record in the case , and from his observation of the witnesses , the under-
signed makes the following.
FINDINGS OF FACT
L THE BUSINESS OPERATIONS OF RESPONDENT
Bob Morgan Motor Company, Inc , an Oklahoma corporation , has its principal offices and
place of business at Ada, Oklahoma, where it is engaged in the sale and repair of new and
used automobiles and automotive parts. Respondent is a franchise dealer for the sale of
Cadillac and Oldsmobile automobiles and parts
During the 12-month period immediately prior to the issuance of the complaint herein,
Respondent purchased automobiles and automotive parts valued in excess of $250,000, ap-
proximately 75 percent of which was shipped in interstate commerce . During the same period,
Respondent ' s sales amounted in excess of $ 500,000 , of which less than 5 percent was shipped
in interstate commerce
In its answer , Respondent denied it was engaged in commerce within the meaning of the Act
but offered no evidence in support of its denial . In its Decision and Direction of Election,
dated May 15, 1952, in Bob Morgan Motor Company,-Inc., Case No. 16-RC- 977 (unreported),
the Board rejected Respondent's contention that it was not subject to the Act and asserted
jurisdiction Under the circumstances , coupled with the fact that there is no evidence in the
record that Respondent ' s operations have changed in any material way since May 15, 1952, the
undersigned finds that during all times material herein Respondent was, and still is, subject
to the Board ' s jurisdiction and that it will effectuate the policies of the Act for the Board to
assert its jurisdiction
IL THE ORGANIZATION INVOLVED
International Association of Machinists, affiliated with American Federation of Labor, is a
labor organization admitting to membership employees of the Respondent
BOB MORGAN MOTOR COMPANY, INC. 337
III. THE UNFAIR LABOR PRACTICES
A. The alleged interference, restraint, and coercion
Troy Carpenter testified that he returned to Respondent's employ in or about April or May
1948, and worked there as a mechanic until October 1, 1952, when he went out on strike; that
he acted as a union observer at the Board-conducted election of June 13, 1952; that he is vice
president of the Union' s local , shop committeeman, and participated in the bargaining negotia-
tions between Respondent and the Union.
Carpenter further testified that about the middleofAugust 1952, R. E. L. Morgan, Respond-
ent's president and owner of 98 percent of its stock, came to him and asked, to quote from
Carpenter's testimony, "If there wasn't something I could do to stop that damn union"; that
he replied he could not because he was merely a member thereof with no more control over
the Union than any other member; that Morgan then said, "That might be right, but I will
never believe it. Since you and Sid Johnson acted as observers at the election, you will always
be the man that started it, and you are the man responsible for it, . . . I just want to tell you
this is your last warning . It will be stopped or else, I am not going to say anymore about it,
... I just want you to understand I am not dealing with the union in any way .... They will
never get a contract of any kind from me"; and that when he said, "Bob, time will tell,"
Morgan replied, "You are damned right time will tell."
Carpenter then testified that a few days after the above-recited conversation with Morgan
he had a conversation with Respondent's service manager, Landon, wherein he told Landon of
his talk with Morgan and of Morgan's threat; that Landon replied, "Well, I want to tell you,
he is not kidding you. He means it. I happen to be in a position, I know a few days ago he had
an offer to sell this place for onehundred twenty thousand. He will sell it or close it up before
he deals with the union"; that Landon then advised him to see Morgan and obtain an individual
contract, adding, "You might be surprised what you can get."
Morgan and Landon each denied making the statements attributed to them by Carpenter.
Morgan frankly admitted that on many occasions Carpenter spoke to him, before and after the
election of June 13, about the Union; that he knew that Carpenter was "interested" in the Union;
that other employees spoke to him about the Union; that prior to the election he sent the em-
ployees a notice to the effect that it was their privilege to vote any way they wanted; that when
asked by individual employees regarding the election he replied, "I have nothing to do with
it. Vote any way you want to vote"; and that he made no statements "against the Union."
Landon testified that Carpenter attempted several times to engage him in conversations
about the Union and each time he told Carpenter, "I would rather not talk about it. I don't
know anything about the union. You boys will just have to work it out."
The undersigned was favorably impressed with Morgan's and Landon's demeanor while they
were on the witness stand and with the forthright, frank, and honest manner with which they
testified. Carpenter, on the other hand, did not so impress the undersigned. It does not seem
credible to the undersigned that Morgan, a man of wide business acumen, would execute a
written agreement agreeing not to interfere, restrain, or coerce the employees and then,
within a few days thereafter, make the statements Carpenter attributes to him. Furthermore,
within a few weeks after the alleged Carpenter- Morgan conversation, Morgan actually engaged
in collective bargaining and at the bargaining conference granted the Union a great many items
it had requested. Such action, in and of itself, buttresses a finding that Morgan did not tell
Carpenter that the Union would "never get a contract of any kind from me." Moreover, the
only witnesses who testified that Respondent's officials made antiunion statements were the
three strikers who had lawsuits pending against Respondent for wages purportedly due.? Upon
2 Byron D. Johnson, Carpenter, and James Morgan each testified regarding certain antiunion
remarks purportedly made by Morgan and Landon in June and July 1952. Since the record
indicates that the settlement agreement was executed on August 11, 1952, the undersigned
deems it unnecessary to resolve the conflicts in the testimony of the above-named witnesses
with that of Morgan and Landon for, as found below, the said agreement was breached in only
one instance and that was when Respondent, in or about February 1953, granted a $5 per
week wage increase to 2 employees without prior consultation with the Union. The under-
signed does not consider this isolated instance, which took place about 6 months after the
execution of the said agreement, sufficient to warrant going behind the agreement for the
purpose of ascertaining whether Respondent had violated the Act prior to August 11, and if
it be found that it had, use Respondent's prior conduct as a basis for finding that Respondent
had engaged in unfair labor practices before or after the execution of the said agreement. See
Rice-Stix, 79 NLRB 1333.
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the entire record, the undersigned finds that neither Morgan nor Landon made the statements
attributed to them by Carpenter.
B. The alleged refusal to bargain collectively with the Union
1. The appropriate unit
The complaint alleged, as the Board found in its Decision and Direction of Election, above
referred to, that all Respondent's mechanics, paint and body men, parts men, attendants, the
maintenance man, and porters, exclusive of its office clerical employees, bookkeepers, the
salesman, watchmen, guards, sales manager, service manager, and all other supervisors as
defined by the Act, constituted a unit appropriate for the purposes of collective bargaining.
In its answer Respondent denied that suchunitwas appropriate. However, it offered no evidence
with respect to the matter. In the aforesaid representation case, the Board rejected Respond-
ent's contention that the unit was inappropriate. Under the circumstances, the undersigned
finds that Respondent's mechanics,, paint and body men, parts men, attendants, the maintenance
man, and porters, exclusive of its office clerical employees, bookkeepers, the salesman,
watchmen, guards, sales manager, service manager, and all other supervisors as defined by
the Act, at all times material herein constituted, and now constitute, a unit appropriate for
the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act, with
respect to grievances, rates of pay, wages, hours of employment, and other conditions of
employment, and that the said unit insures to the employees involved the full benefit of their
right to self-organization and collective bargaining and otherwise effectuates the policies of
the Act.
2. The Union's majority status in the appropriate unit
Pursuant to the aforesaid Board's Decision and Direction of Election, a secret ballot election
was held on June 13, 1952, under the auspices of the Regional Director for the Sixteenth Region,
at which the Union was selected as the collective-bargaining representative for the persons
in said appropriate unit. No objections to the voting or to the conduct of the election were filed
by either Respondent or the Union.
On June 23, 1952, the Board, in its Certification of Representatives, issued for and on behalf
of the Board by the aforesaid Regional Director, certified the Union as the representative
of the employees in the aforesaid unit for the purposes of collective bargaining. Accordingly,
the undersigned finds that since June 23, 1952, the Union has been the duly designated bar-
gaining representative of a majority of the employees in the aforesaid appropriate unit, and
that, pursuant to the provisions of Section 9 (a) of the Act, the Union was on June 23, 1952,
and at all times thereafter has been, and now is, the exclusive representative of all the em-
ployees in the aforesaid unit for the purposes of collective bargaining.
3. The negotiations
(a) Sequence of the pertinent facts
Under date of July 14, 1952, C. A. Buskel, a grand lodge representative of the Union and the
person who negotiated with Respondent on behalf of the Union, wrote Respondent requesting
certain data he deemed necessary in order to negotiate acollective-bargaining contract. On
August 11, Jack White, a field examiner attached to the Sixteenth Regional Office, called upon
L. H. Harrell, Respondent's counsel, for the purpose of discussing the issues involved in
Case No. 16-CA-529. As a result of said conference, Case No. 16-CA-529 was settled and
an agreement was entered into, dated August 11, by and between Respondent and the Union.
By the terms of said agreement, which was not approved by the aforementioned Regional
Director until August 27, Respondent agreed to post notices in its establishment for 60 consec-
utive days advising its employees that it would not interfere with, restrain, or coerce said
employees in the exercise of the rights to self-organization or with their right to join or
assist the Union or to refrain from such activities, 3
sThe charge in Case No. 16-CA-529 alleged not only that Respondent interfered with,
restrained, and coerced the employees in the exercise of the rights guaranteed in Section 7
of the Act but it also alleged that Respondent discriminatorily discharged an employee. The
settlement agreement makes no mention of the discriminatory discharge allegation.
BOB MORGAN MOTOR COMPANY, INC. 339
During the course of the aforementioned conference of August 11, Harrell asked White "about
the advisability of furnishing the information" Buskel had requested. White advised Harrell
that it was incumbent upon Respondent to supply the requested data.
Buskel testified, and the undersigned finds, that he received the requested information on
August 13 4
On August 12, the Union filed a charge in Case No 16-CA-546 alleging therein that (1) Re-
spondent refused to bargain with the Union in good faith, and (2) by other acts and conduct
Respondent otherwise interfered with the employees' rights under the Act.
On August 29, Buskel, Harrell, and others who were interested in the bargaining negotia-
tions, met at Harrell's offices There, Buskel handed Harrell a proposed contract. For ap-
proximately 4 hours the parties discussed in detail each paragraph of the lengthy 18-articled
proposed contract Agreement was reached on a good many provisions and those provisions
on which no agreement was reached were set aside for future consideration In fact, Buskel
admitted that the questions of wages and hours were "really the two main things that we were
not together on [at] the first meeting, "5
On September 27, Harrell forwarded to Buskel a counter proposed contract which the latter
received on September 28.
Buskel testified that on September 29, he met with Harrell at the latter 's offices and that
he told Harrell that the counterproposed contract was unacceptable and that he was afraid the
men would go on strike; and that Harrell replied, "this was it; that was their last offer; that
they just wouldn't go any further, that they would be willing to sign [the counterproposed
contract] but that was all. They wouldn't consider anything any further than that, no changes."
Harrell not only denied making the above-quoted statements but also denied that Buskel
came to his offices on September 29, or that he spoke to Buskel that date. The undersigned
was favorably impressed with the straightforward and honest manner with which Harrell
testified On the other hand, Buskel did not so impress the undersigned. Furthermore, Buskel,
on cross-examination, replied to a great many pertinent questions concerning matters
obviously within his personal knowledge, by saying, "I do not remember" or "I do not recall"
or "I do not know " It was obvious to the undersigned, from Buskel' s demeanor while on the
witness stand, that he knew the answers to the questions to which he replied, "I do not know"
or "I do not remember" or "I do not recall." The undersigned finds that Buskel did not meet
and confer with Harrell on September 29. The undersigned further finds that Buskel's testi-
mony, which Harrell denied, thathehad from3 to 5 private talks with Harrell prior to October
1, during which he asked Harrell "if it wouldn't be possible to get some kind of a compromise
so we could get off of dead center" to be not in accordance with the facts.
During the evening of September 29, the Union's membership held a meeting . This meeting
was attended not only by Respondent's employees but also by employees of the Pontiac and
Lincoln automobile dealers As far as the record discloses, the main topic discussed at the
meeting was whether or not to strike all three automobile firms Troy Carpenter, the only
witness who testified about the details of the said meeting, testified regarding the taking of
the strike vote as follows-
We discussed the progress or the results of that meeting of negotiations, 6 and we
talked about the different conversations that I had with Mr Morgan7 and other people
had had with Mr Morgan, other members
O
I remember I told them about this previous conversation that I had with Mr Morgan, and
his attitude toward the Union in trying to defeat the purpose of the Union, and refusing to
recognize the Union, and Mr Buskel read this counter proposal on the contract g and it
4Letters were also sent by Buskel to the Pontiac automobile dealer and to the Lincoln
automobile dealer, both located in Ada, requesting certain data so that he could bargain with
them on behalf of their employees
5 The transcript of that meeting, however, discloses that there were no agreement reached
regarding other provisions of the contract, including overtime compensation, payment for
holidays falling on Sundays, premium pay for holiday work, seniority, leaves of absence, the
grievance procedure, arrangements for vacations, an apprentice program, union shop, and
payment for uniforms.
6 The August 29 meeting.
7 The purported June and August conversations discussed above in section A.
SReceived by Buskel the previous day.
322615 0 - 54 - 23
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was such a ridiculous proposal, and putting all those things together was how come us
to arrive at this decision that we made
the decision was finally to strike, that we were going to be forced to strike and try to
force them into recognizing the Union [Emphasis supplied.]
Carpenter further testified, and the undersigned finds, that only 1 strike vote was taken and
that the ballot applied to the 3 automobile companies involved.
The strike at the three automobile concerns started on October 1 Picket lines were im-
mediately placed at the premises of these companies According to the credited testimony of
Morgan, picketing ceased at Respondent's,establishment about 5 or 6 weeks before the opening
of the hearing herein.
On January 6, 1953, Buskel met Harrell and requested him to set a date for another bar-
gaining conference. 9 Harrell explained that he was just recovering from a partial stroke,
which occurred on October 22, and was leaving the following day for Gulfport, Mississippi,
for a couple of weeks' rest Harrell then suggested that Buskel wait until he returned to
resume negotiations Buskel replied that "two weeks was a little too long to put" off the
resumption of negotiations Harrell thereupon tookBuskeltohis offices, suggested that Buskel
confer with his law partner, and made arrangements for Buskel and Harrell's law partner
to meet and negotiate on January 13
When Buskel and Harrell's partner met onJanuary 13, the latter requested that negotiations
be delayed until he could get some assistance because of his unfamiliarity with labor matters.
Buskel agreed to the postponement
On January 21, on February 11, and on March 5, the parties met and bargained for many
hours on each occasion, with the result that the only issues of any importance unresolved at
the time of the opening of the hearing herein, March 24, were wages, union shop, and hours
of work The record shows that the parties had arrangements to meet on March 31 and April 1
for bargaining conferences
(b) Concluding findings
The record as a whole convinces the undersigned, and he finds, that Respondent honestly
explored the possibility of reaching agreement on all proposals and counterproposals sub-
mitted by the respective parties At the bargaining conferences the parties fully and frankly
discussed all matters in issue As a result, substantial agreement was reached on a good
many issues It was evident shortly after negotiations were opened that there was little change
of agreement on certain issues For as soon as the Union demanded a wage increase, a union
shop, and reduction of hours of work, Respondent, after stating at length its reasons, rejected
the demands The Union, likewise, took an equally adamant position with respect to these
issues While neither parry during the ensuing negotiations was willing to alter substantially
their original basic economic positions, it cannot be said that the negotiations as a whole
were not carried on by Respondent in the spirit of honesty and good faith as required by the
Act It is significant that while the parties regarded wages and hours of work as paramount
issues and as matters which would have to be resolved before a written agreement could be
consummated, bargaining, nonetheless, proceeded and, as a result of concessions made by both
sides, agreement was reached on many matters. At the same time, the aforesaid economic
and other issues raised by the Union were considered repeatedly and each party unsuccessfully
sought to persuade the other, by honest and sincere discussions, to capitulate
The record leaves no doubt that Respondent was definitely opposed to granting certain de-
mands the Union considered essential in a -contract and just as definitely the Union was
determined to enforce these demands. The record discloses that Respondent, as was its duty,
approached the bargaining table with a sincere desire to arrive at a mutually acceptable
contract and that it did not, as the court said of the employer in N L R B. v Athens Mfg.
Co , 161 F. 2d 8 (C. A. 5), give the Union "a run-around while purporting to be meeting with
the union for the purpose of collective bargaining." On the contrary, the record reveals
that Respondent, as the Board and the courts have uniformly held an employer was duty bound
to do, entered into the bargaining conferences "with an open and fair mind, and with a sincere
purpose to find a basis of agreement touching wages and hours and conditions of employ-
9 This was the first time after August 29 that either party requested the resumption of
negotiations.
BOB MORGAN MOTOR COMPANY, INC. 341
ment...."10 Illustrative of Respondent's good-faith bargaining and its honest endeavor to
enter into a contract with the Union is the fact that Respondent agreed to accept most of the
Union's proposals and had made arrangements to meet and bargain with the Union after the
close of the hearing herein. It is true that Respondent's counterproposed contract of September
27 did not include all the concessions it had made at the August 29 conference, but that pro-
posed contract was not intended to be unalterable In fact, when negotiations were resumed in
January 1953, Respondent's proposed contract was put aside and the parties worked from the
Union' s original proposed agreement
The record further shows that the Union was going through the motions of collective bar-
gaining by meeting with Respondent although at the same time entering the conferences with
its mind hermetically sealed against even the thought of entering into an agreement unless
Respondent agreed to an 8-hour workday. This finding becomes inescapable, when considera-
tion is given to the undenied and credible testimony of Charles Rhoads, a reporter for the
Ada, Oklahoma, Evening News, ii who testified that when he interviewed Buskel on October 1,
1952, in order to ascertain the facts regarding the strike, Buskel told him, among other
things, "A contract calling for a nine-hour work day will not be signed." From that position,
Buskel never receded Such conduct, which is bottomed on the theory that the Union was en-
titled to a contract embodying a provision for an 8-hour workday before it would enter into
a contract, manifests the Union's lack of good faith in its dealings with Respondent.
Furthermore, the intent behind the Union's action in executing a charge alleging that Re-
spondent had refused to bargain in good faith the same day the agreement to settle Case No
16-CA-529 was signed and then filing the charge the following day, is transparent when
consideration is given to the fact that at the time of the executing and filing of said charge
Respondent, as far as this record discloses, had not been as yet requested to bargain Up to
that time, the only request made upon Respondent was to supply certain data Buskel desired.
The record, moreover, does not show whether or not Buskel had even made any attempt,
prior to the execution and filing of the charge, to ascertain if Respondent had received his
letter of request. It is thus clear that the Union was acting "for the record" while destroying
the process of orderly collective bargaining and then putting the blame of refusing to bargain
"in good faith" upon Respondent.
Upon the entire record, the undersigned finds that the allegations of the complaint, as
amended at the hearing, that Respondent violated Section 8 (a) (5) of the Act by refusing to
bargain collectively with the Union are not sustained by the credible evidence. The under-
signed further finds that the record as a whole clearly shows that the strike, which com-
menced on October 1, 1952, was not caused nor prolonged, as alleged in the complaint, by
any unlawful conduct of Respondent.
As further evidence that Respondent failed to fulfill its statutory obligation to bargain
collectively with the Union, by its unlawful actions prolonged the strike, and otherwise
violated the Act, the General Counsel lays great stress on the letters Respondent sent three
striking employees The letter reads as follows:
As we will have replacements in the shop, come in and remove your tools. These tools
must be out not later than Wednesday, November 12th, 1952.
The General Counsel argued that the letters were tantamount to an announcement or a threat
by Respondent that the recipients thereof "would be replaced." Contrary to the General
Counsel's argument, there is nothing in the letters which suggests that the recipients thereof
should "discontinue their concerted activity " At most, the letters advised the three strikers
to pick up their tools which they had left at the shop for about 5 weeks because replacements
were to be hired Respondent, in order to carry on its business, had the right to fill the
strikers' jobs by hiring permanent replacements for the strikers were economic strikers.
Under the circumstances, the undersigned recommends that the allegations of the complaint
that by the issuing said letters of November 8, Respondent violated the Act, be dismissed
C. The alleged discrimination with respect to
Byron D. Johnson
The complaint, as amended at the hearing, alleged that Respondent discriminatorily re-
fused to compensate Johnson for the 3 days he had lost when injured on the job in August
1952 Respondent's answer denied this allegation.
10 Globe Cotton Mills v N. L. R. B., 103 F. 2d 91 (C A 5).
ilBuskel was present in the hearing room when Rhoads testified
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson testified that about 45 minutes after he had started working on the first day after
he had returned from his vacation , August 18, he " pulled some muscles in my side" while
working on a car, that after he had discussed his injury with Respondent's service manager,
Morgan came to him and suggested that he "go to the doctor", that he went to his personal
physician who advised him to go home and rest and "not to attempt anymore work until we
saw whether it was a worse injury or not", that he remained away from work for 3 days,
that when he returned , Morgan , after inquiring about his health, said he could not pay the
doctor ' s bill because he had gone to his personal physician instead of going to the clinic of
Respondent ' s insurance company; that he replied he had expected to pay his own doctor's
bill; that when he received his paycheck at the end of the week, he noticed that he had not
been compensated , as in the past,12 for time lost due to being injured on the job , that he com-
plained to Morgan about the matter, and that Morgan refused to pay him for the time lost;
and that when he inquired why Morgan was deviating from past practices , Morgan replied,
"Yes, you know that's always been my policy but, I can't do it this time because of the way
you boys have done me with this darned old union."
Morgan testified that when he heard Johnson had "claimed" he had hurt his side while on
the job, he told Johnson to go to Respondent's doctor, that during Johnson's absence from
work he heard that Johnson was not injured while on the job but that Johnson had complained
about his side hurting him while on his vacation; and that when Johnson inquired why he had
not been compensated for the 3 days he had been off, he told Johnson he would not pay him
because Johnson had falsely claimed to have been injured on the job. Under the entire record
in the case, coupled with the fact that, as found above, Morgan was a credible witness, the
undersigned finds that Morgan's version of his talk with Johnson when the latter complained
about not being compensated for the time lost in August 1952, to be substantial in accord
with the facts.
D. The granting of wage increases without prior
consultation with the Union
Admittedly , Respondent , in or about February 1953, raised the wages of Carl Stephens, a
service- station attendant , and Willie Townsend , a maintenance man, from $ 50 per week to
$ 55 without prior consultation or discussion with the Union despite the fact that these 2 em-
ployees were in the bargaining unit . Of course , Respondent was dutybound to consult and
discuss with the Union , the exclusive bargaining representative of the persons in the appro-
priate unit, before changing the wage scale of any person in said unit However , the undersigned
does not consider this isolated act, standing alone and unrelated to any other antiunion conduct
of Respondent , to be sufficient to warrant a finding of interference , restraint , or coercion under
the Act or to warrant a finding that Respondent thereby refused to bargain in good faith. i3
Upon the entire record in the case , the undersigned is convinced , and finds , that the allega-
tions of the complaint , as amended at the hearing , that Respondent violated Section 8 (a) (1),
(3), and (5) of the Act, are not sustained by the credible evidence Accordingly, the under-
signed recommends that the complaint, as amended , be dismissed in its entirety.
Upon the basis of the foregoing findings of fact and upon the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. Bob Morgan Motor Company , Inc., Ada, Oklahoma , is engaged in and at all times material
herein has been engaged in commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
2. International Association of Machinists, affiliated with American Federation of Labor,
is a labor organization within the meaning of Section 2 (5) of the Act.
3. The allegations of the complaint , as amended , that Respondent has engaged in and is
engaging in unfair labor practices , within the meaning of Section 8 (a) (1), (3 ), and (5) of the
Act have not been sustained.
[Recommendations omitted from publication
12 In 1946 and again in 1949, Johnson was compensated for time lost due to being injured
on the job.
13 Cf. Rice-Stix, supra; Pure Oil Company, 75 NLRB 539; E. I. DuPont de Nemours, 62 NLRB
816; Sibicca, 30 NLRB 60.