E. R. Goddard & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1953

105 N.L.R.B. 849 (N.L.R.B. 1953)

E. R. GODDARD & COMPANY, INC. 849
CONCLUSIONS OF LAW
1, Locals Nos. 37, 3, and 6, United Packinghouse Workers of America, CIO, are labor
organizations within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of employees named
in Appendix A, attached hereto, thereby discouraging membership in the above-named labor
organizations, 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 its employees in the exercise of 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. 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.]
E. R. GODDARD & COMPANY, INC. and AUTOMOTIVE, PE-
TROLEUM, AND ALLIED INDUSTRIES EMPLOYEES UNION,
LOCAL 618 , affiliated withthe INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
& HELPERS OF AMERICA, AFL. Case No. 14 -CA-798.
June 30, 1953
DECISION AND ORDER
On March 27, 1953, Trial Examiner Horace A. Ruckel issued
his Intermediate Report in the above-entitled proceeding,
finding that the Respondent had engaged in and was engaging
in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief. The Respondent
also requested oral argument. This request is hereby denied
because, in our opinion, the record, exceptions, and brief
adequately present the issues and the positions of the parties.
The Board' has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and brief,
and the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Exam-
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel LMem-
bers Houston, Styles, and Peterson]
105 NLRB No 131
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
iner to the extent indicated below and with the following
additions and modifications:-'
1. The Respondent moved to dismiss the complaint on the
grounds that its operations are essentially local, that it is not
engaged in commerce within the meaning of the Act, and that the
assertion of jurisdiction in this proceeding would not effectuate
the policies of the Act. We do not agree. The Respondent is
engaged , at Robertson, Missouri, in the sale and servicing of
trucks and farm machinery and equipment. The record reveals
that, during the 12-month period from October 1, 1951, to
September 30, 1952, the Respondent purchased goods and
equipment valued at more than $810,000, of which amount
goods valued at approximately $253,000 were purchased at,
and shipped directly from, points outside the State of Missouri
and goods valued at over $186,000, although purchased locally,
originated outside the State. During this same period, the
Respondent shipped goods or performed services outside the
State of Missouri valued at at least $3,000.3
More than 50 percent of the Respondent's total purchases
during this period consisted of farm equipment, trucks, and
parts which were manufactured outside the State of Missouri
and were purchased from the International Harvester Company,
pursuant to five dealer sales -and-service agreements author-
izing the Respondent to handle International Harvester products.
These agreements provide that the International Harvester
Company is to retain a substantial degree of control over the
Respondent's operations with respect to such elements as
the sufficiency of the Respondent's sales-and-service facil-
ities, inventories , accounting records and financial reports,
sales and inventory reports, sales promotion and advertising
of International Harvester products, and the Respondent's use
of International Harvester's name and advertising materials.
Although, as the Respondent asserts , these sales -and- service
agreements do not grant the Respondent any exclusive sales
territory or limit the Respondent's sales territory and they
2 The Intermediate Report contains several misstatements of fact or inadvertences,
none of which affects our ultimate conclusions herein However, we note the following
corrections: (1) The Respondent's brief to the Trial Examiner, as amended, states that,
during the year in question, the Respondent received an indirect inflow of goods or mate-
rials originating outside the State of Missouri valued at $186,661 93, not at $481,975, as
indicated by the Trial Examiner; (2) the Trial Examiner inaccurately stated that the Re-
spondent did not suggest any unit as being more appropriate than the unit set forth in the
complaint, as the Respondent did assert, in its answer to the complaint that all its em-
ployees, excluding office and clerical employees, executive and operative employees, guards,
and supervisors as defined in the Act, constituted an appropriate unit within the meaning
of Section 9 (b) of the Act; (3) the record shows that William Schaper was granted a 10-
cent an hour wage increase on March 6, 1952, more than 14 weeks before his discharge
on June 13, and not 9 weeks before his discharge, as the Trial Examiner found; and (4)
although the Trial Examiner found that, in June 1951, Raymond Schaper was put on the
Respondent's payroll at $6 a week, the record shows that he was never actually on the
Respondent's payroll until he was hired on June 9, 1952
3In view of our findings herein, we deem it unnecessary to pass upon the Trial Examiner's
findings with respect to the Respondent's sales to purchasers giving out-of-State addresses.
E. R. GODDARD & COMPANY, INC. 851
do not prevent the Respondent from handling competitive lines
of equipment , the Board has often held that these factors are
not determinative of whether or not a retail establishment
operates as part of the distribution system of a multistate
enterprise ." As more than 50 percent of the Respondent's
purchases are made from the International Harvester Company
pursuant to agreements whereby International Harvester main-
tains a substantial degree of control over the manner in which
the Respondent operates its business in the distribution of
International Harvester products , we find that the Respondent
operates as an integral part of a multistate enterprise)
On the basis of all these facts, it is clear , and we find, that
the Respondent is engaged in operations affecting commerce
within the meaning of the Act and that it will effectuate the
policies of the Act to assert jurisdiction in this case . Accord-
ingly, the Respondent ' s motion to dismiss the complaint is
hereby denied.
2. The Trial Examiner found , and we agree , that the Respond-
ent, independently of its other violations of the Act , violated
Section 8 ( a) (1) of the Act by the following conduct of Plant
Manager Marion Fuchs , which was clearly unlawful:
(a) Manager Fuchs' polling of the employees , on the after-
noon of June 10, to determine whether or not they were in
favor of the Union.
(b) Fuchs' statements to a group of employees in the setup
department , including employees William Schaper , Raymond
Schaper, William Clyde Polson, and Paul Lassarre , shortly
before the poll, that if the Union came into the plant: ( 1) There
would be no more overtime ; ( 2) there would be no more extra
days of work ; ( 3) the employees would not receive a Christmas
bonus ; and (4 ) the Respondent could no longer keep Raymond
Schaper in its employ.
(c) Fuchs ' interrogation of Paul Lassarre , approximately a
week before the poll, as to what Lassarre thought about the
Union.
3. We also agree with the Trial Examiner's conclusion that
the Respondent discriminatorily discharged Raymond Schaper
on June 10, 1952, in violation of Section 8 (a) (3) and 8 (a) (1)
of the Act.
The facts relating to the employment and discharge of
Raymond Schaper are clear . In July 1950 , William Schaper,
an employee in the Respondent ' s setup department, asked
Leonard Weber , the Respondent ' s farm machinery department
manager, who had jurisdiction over the setup department,
whether he could bring his son, Raymond , then 15 years old,
to the plant with him in order to keep the boy "off the streets"
and to enable him to learn the trade . Weber agreed and,
during the summer of 1950 and again during his summer
"Cooley Sons Co, 102 NLRB 59; Hallam R. Boggs Truck and Implement Co, 95 NLRB
1443.
5Cooley Sons Co., footnote 4, supra; Hallam & Boggs Truck and Implement Co , footnote
4, supra; Hallam & Boggs Truck and Implement Company, 92 NLRB 1339
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vacation from school in 1951, Raymond Schaper worked in
the setup department, primarily helping his father by doing
odd jobs and running errands, but occasionally helping some
of the other employees in the setup department. Although
Raymond Schaper was not on the Respondent's payroll during
the summers of 1950 and 1951 and no work was assigned to
him, the Respondent did give him "spending money" of $2 a
week and $6 a week, respectively, during those two summers.
In June 1952, William Schaper asked Plant Manager Fuchs if
the Respondent could actually employ Raymond during his
summer vacation and, on June 9, Fuchs hired Raymond to
help out in the setup department, at $20 a week, admittedly
with the intention of keeping him for the entire summer if he
proved satisfactory.
On the same day that Raymond was hired, representatives
of the Union met with Fuchs and requested recognition of the
Union as the representative of the Respondent's setup depart-
ment employees, parts department employees, drivers, lubri-
cation men, and porters. Fuchs did not then question the Union's
majority and informed the union representatives that he would
check with other officials of the Respondent and "let them
know." However, on the following day, June 10, Fuchs con-
ducted a poll among the employees in the unit requested by
the Union to determine whether or not the employees were in
favor of the Union. As set forth above, Fuchs addressed the
employees before the poll, threatening loss of benefits if the
Union came into the plant and informing them that if the
Union were successful, the Respondent could no longer keep
Raymond Schaper in its employ. Almost immediately after the
poll, which indicated that the employees were in favor of the
Union, Raymond Schaper was called to Weber's office and
Weber informed him that he was being laid off as the Respond-
ent no longer needed him.
The Respondent contends that it discharged Raymond Schaper
because he was too young and too small for the job. Weber,
who was responsible for Raymond's originally coming to the
plant in the summer of 1950, testified that he, not Fuchs, made
the decision to discharge Raymond. Weber asserted that Fuchs
had hired Raymond on June 9 without consulting Weber and
that, when Weber saw the boy around the plant later that day,
he discussed the matter with Fuchs and informed him that he
did not want Raymond Schaper in the setup department because,
if they were going to hire another man in that department, he
wanted someone older and stronger for the job. According to
Weber's testimony, Fuchs left the decision up to him. The
following day, Weber discharged Raymond Schaper, telling him
merely that the Respondent did not need himany more and that
Weber would let him know when there was work available for
him.
We find no merit in the Respondent's contention. It is clear,
and Fuchs so testified, that when Fuchs hired Raymond Schaper
E. R GODDARD & COMPANY, INC. 853
on the morning of June 9, he intended to employ Raymond
during his entire summer vacation if he proved satisfactory.
The Respondent does not assert that, during the 2 days that
Raymond Schaper worked at the plant, he had proved unsatis-
factory, and Fuchs himself testified that he could not recall
why Raymond had been fired. Nor can we accept Weber's
asserted reasons for having discharged Raymond Schaper.
Indeed, it was Weber who first agreed to letting Raymond
come to the plant during the summer of 1950, when the boy
was only 15 years old, and it was Weber, too, who suggested
that the Respondent give Raymond some "spending money"
while he was working around the plant. In view of these facts,
we deem it highly unlikely that Weber, who had consented to
Raymond's working around the plant when the boy was younger
and smaller, would have been so violently opposed to Raymond's
employment in June 1952 that he would have urged his discharge
after Fuchs, Weber's superior, had already hired him. More-
over, it is significant that, when Weber discharged Raymond
Schaper on June 10, he did not mentionthe reasons asserted at
the hearing and, in fact, told Raymond that the Respondent
would get in touch with him when there was more work avail-
able.
On the basis of all the facts, including the summary nature
of the discharge, the fact that no reason was advanced by the
Respondent at the time of the discharge, the timing of the
discharge, which immediately followed Fuchs' polling of the
employees, and particularly in view of Fuchs' statement to
the employees earlier in the day that if the Union came into
the plant, the Respondent could no longer employ Raymond,
we are convinced that in discharging Raymond Schaper on
the day after he was hired, the Respondent was executing Fuchs'
threat that very day to terminate Raymond's employment if the
Union succeeded in organizing the employees. Accordingly,
we conclude, as did the Trial Examiner, that Raymond Schaper
was discharged because of the union activities of the em-
ployees and the advent of the Union in the plant, as evidenced
by the results of Fuchs' poll.
4. We also find, in accord with the conclusion of the Trial
Examiner, that the Respondent discriminatorily discharged
William Schaper on June 13, 1952, in violation of Section 8 (a)
(3) and 8 (a) (1) of the Act.
William Schaper was the most experienced and most highly
paid employee in the Respondent's setup department, having
worked for the Respondent from June 1950 until October 1950
and again from July 1951 until his discharge on June 13, 1952,
and having received an individual merit increase of 10 cents
an hour 3 months before his discharge. Along with Clyde Poison
and Paul Lassarre, the 2 other employees in the setup depart-
ment, Schaper attended a meeting at the home of Lassarre's
mother on May 27, 1952, where all 3 employees signed appli-
cations for membership in the Union. On the afternoon of
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 10, after the Union had requested recognition of the
Respondent and shortly before Fuchs conducted the poll of the
employees , Schaper was present when Fuchs spoke to a group
of employees in the setup department about the Union. Schaper
was the most outspoken of the group in attempting to discount
the disadvantages which Fuchs threatened would occur should
the Union come into the plant, making it clear to Fuchs that
he would not object to the loss of overtime and suggesting that
the Respondent might be able to make some arrangement with
the Union in order to enable it to keep Raymond Schaper in its
employ. As stated above, William Schaper's son, Raymond,
was discharged, as Fuchs had predicted, immediately after the
poll, on the afternoon of June 10. On the afternoon of June 13,
Weber came down to the setup department and informed Schaper
that he was being discharged. When Schaper later inquired as
to the reason for his discharge , Weber informed him that he
was being discharged because he was "uncooperative."
The Respondent asserted, at the hearing, that it had fired
Schaper because , during the last 6 to 10 weeks of his employ-
ment, Schaper had lost interest in his work, as evidenced by
his unsatisfactory performance of 2 jobs assigned to him
during this period. Weber, who testified that he was responsible
for Schaper's discharge, stated that the first incident occurred
in May; that he received a complaint about a tractor which
Schaper had assembled and found, when he went out to service
the machine himself, that the hydraulic system was not working
properly and that 2 lug nuts and the battery cable were loose.
The second complaint , which Weber asserted was the imme-
diate cause of Schaper ' s discharge , related to his slowness
in assembling a combine during the week immediately preceding
his discharge. According to Weber, Schaper had worked on the
combine for approximately 41 hours rather than the 21 hours
which was the average time required for such a job.' Weber
testified that he had first thought about discharging Schaper
about 6 to 10 weeks before June 13, when he noticed Schaper's
lack of interest in his work, and particularly after the tractor
incident in May, and that, during this 6- to 10-week period, he
had, on several occasions , discussed the matter with Fuchs,
who told Weber that the decision was up to him as he was
responsible for the setup department . After discussing the
tractor incident with Schaper on May 19, however, and after
Schaper had agreed to try to do better in the future, Weber
decided to give him another chance. With respect to the
immediate cause of Schaper's discharge , Weber testified that
Schaper had started work on the combine in question on June 4
and that he did not finish assembling it until Wednesday, June 11,
6 Although Weber testified that he also received a complaint about the manner in which
the combine had been assembled and that, during the following week, additional work was
required on the combine in order to put it in working condition, this complaint could not
have been a factor in Schaper's discharge as it occurred after Weber had decided to dis-
charge Schaper
E. R. GODDARD & COMPANY, INC. 855
at which time Weber finally decided to discharge Schaper.
Weber discussed the matter with Fuchs on June 12 and Fuchs
again told Weber to use his own judgment. On the following day,
June 13, Weber informed Schaper that he was being fired.
Although we do not challenge the testimony of the Respondent's
witnesses that the two incidents related above actually occurred,
we cannot accept the Respondent's contention that these were
the reasons for Schaper's discharge. The Respondent does not
assert that Schaper was unqualified as a setup man; indeed,
it asserts that Schaper was a capable and experienced setup
mechanic, but that he had lost interest in his work. Similarly,
although the Respondent relies on the fact that it had received
complaints from customers with respect to Schaper's work,
it admits that it had also received similar complaints with
respect to the work of Clyde Poison, the other full-time setup
mechanic at the plant.' Moreover, if Schaper's asserted slow-
ness and careless workwere the real reasons for his discharge,
we believe that the Respondent would have mentioned these
alleged shortcomings to Schaper when it discharged him rather
than giving as the reason for his discharge the nebulous charge
that Schaper had been "uncooperative."
Most convincing to us, however, in determining the actual
reasons for Schaper's discharge are the facts surrounding the
employment and discharge of Schaper's son, Raymond. The
Respondent asserts that it had considered discharging Schaper
during a period of 6 to 10 weeks before June 13 and that Fuchs
and Weber had discussed the matter several times during this
period. The Respondent admits, however, that when Fuchs hired
Raymond Schaper on June 9, 1952, he did so primarily as an
accommodation to Raymond's father, who wanted the boy to get
a little more experience in setup work, and after a discussion
with William Schaper as to the boy's employment and wages.
Like the Trial Examiner, we deem it highly improbable that
the Respondent would have hired Raymond Schaper on June 9,
at the request of and as a favor to his father, if, as the Respond-
ent contends, it was, at that time, contemplating discharging
his father, William Schaper. Accordingly, we believe and find
that the Respondent could not have considered discharging
William Schaper until sometime after June 9, when it hired
Raymond, and that, on the contrary, at least until June 9, it
viewed William Schaper as a valuable employee whom it was
willing to accommodate. Similarly, we conclude that when the
Respondent discharged Raymond Schaper on the afternoon of
June 10, without any prior explanation to his father, its attitude
toward William Schaper had already changed. Obviously, the
Respondent, as of the afternoon of June 10, was no longer
interested in obliging William Schaper and had, in fact,
decided to dispense with his services. Indeed, on the afternoon
of the very next day, the Respondent placed a newspaper adver-
7 Although Paul Lassarre was also employed in the Respondent's setup department and
assisted Schaper and Poison in assembling farm equipment, he was employed as a truck-
driver.
Z91555 0 - 54 - 55
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tisement for an "experienced farm machinery setup man"
although, according to the testimony of both Fuch's and Weber,
Plant Manager Fuchs was not consulted about Schaper's dis-
charge until the afternoon of the following day, June 12.
The Respondent points to no misconduct or shortcoming of
Schaper's which occurred during this critical period, between
the morning of June 9 and the afternoon of June 10, which
would account for its sudden change in attitude toward him.°
Indeed, the only events which did occur during this period
relate to the union activities at the plant. Thus, on June 9,
representatives of the Union met with Fuchs and requested
recognition of the Union; on June 10, during Fuchs' discussion
with the employees about the Union, Schaper indicated his
prounion sentiments; and, shortly afterwards, on the afternoon
of June 10, Fuchs' poll of the employees showed that the em-
ployees were overwhelmingly in favor of the Union. We are
convinced, therefore, that it was such union activities and
particularly Schaper's patent interest in them, as manifested
by his comments to Fuchs during the discussion preceding the
poll, which were responsible for the Respondent's change in
attitude toward Schaper and for its decision to discharge him.
Accordingly, we conclude, as did the Trial Examiner, that
the Respondent discharged William Schaper, on June 13, 1952,
not because of his asserted slowness or carelessness in per-
forming his work, but because of his union activities and
prounion sentiments, and that the Respondent thereby violated
Section 8 (a) (3) and 8 (a) (1) of the Act.
5. Unlike the Trial Examiner, however, we find that the
Respondent did not violate Section 8 (a) (5) of the Act by refusing
to bargain collectively with the Union as the representative of
the Respondent's setup department employees, parts department
employees, drivers, lubrication men, and porters, as requested
by the Union on June 9, 1952.
The complaint alleges, and the Trial Examiner found, that
all garage laborers, utility men, lubrication, tire and battery
service men, and all other employees in the Respondent's
garage, shop and parts department, excluding mechanics and/or
machinists, office and clerical employees, executive and pro-
fessional employees, guards, and supervisors as defined inthe
Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act. We
do not agree.
The unit requested by the Union and found appropriate by
the Trial Examiner includes mechanics employed in the Re-
spondent's setup department, but excludes mechanics and/or
8Schaper 's asserted slowness in assembling the combine could not have been responsible
for this change in attitude as Weber himself testified that he did not decide to discharge
Schaper until after he had finished assembling the combine, on the morning of June 11,
and after he had spent 41 hours on the job.
E. R. GODDARD & COMPANY, INC. 857
machinists employed in the Respondent's service department.9
The record reveals that the mechanics in the setup department
are responsible for assembling, checking, and putting into
operating condition all new equipment sold by the Respondent,
while those in the service department are responsible for
repairing and servicing equipment, either` new or used, after
it has been delivered to customers. Although the employees
in the service department may possess a greater degree of
skill than do those employed in the setup department, they do
not possess the craft skills of machinists. The work of the
service mechanics and the setup mechanics differ only in
that the former involves more complex machinery and is some-
times performed on the customers' premises.
Moreover, the record reveals that there is interchange
between the employees in the setup and service departments.
As the Respondent' s sales business is seasonal, its need for
setup mechanics is greatest from spring until fall and is very
slight during the period from fall until spring. Repair work,
on the other hand, although fairly steady during the entire
year, is slightly greater during the winter, when farmers are
not using their equipment. Accordingly, rather than lay off
setup mechanics during the fall and winter, the Respondent
has used them in the service department 10 and, similarly,
during the period when the setup department is particularly
busy, service mechanics have been used on assembly work.
In view of the similarity of skills, duties, and working
conditions of the setup mechanics and the service mechanics
and the interchange of employees between these two depart-
ments, we find that the unit requested by the Union, excluding,
as it does, mechanics employed in the service department, is
inappropriate, and that only a unit, including the service depart-
ment mechanics is appropriate for the purposes of collective
bargaining ." As the Union never requested the Respondent to
recognize it in the unit which we find to be appropriate, and
it at no time represented a majority of employees in the appro-
9 In finding this unit appropriate, the Trial Examiner relied in part on a jurisdictional
agreement between the union and the International Association of Machinists, applicable to
garage employees, which provides that the latter shall have jurisdiction over, or repre-
sent, the skilled machinists or mechanics and that the Union shall represent the remaining
production and maintenance employees. The Board has often held, however, that a union's
jurisdictional limitation with respect to representing certain employees is not a valid
reason for excluding such employees from a unit. Herpolsheimer Company, 100 NLRB
1452; C. C. Anderson Stores Company, 100 NLRB 986
10 William Schaper himself testified that he had been sent out on a service call in the
fall of 1951 and again about 3 weeks before his discharge.
iiCooley Sons Co., footnote 4, supra Hallam & Boggs Truck and Implement Company,
footnote 5, supra.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
priate unit,12 we conclude that the Respondent did not violate
Section 8 (a) (5) of the Act.
ORDER
Upon the entire record in this case and pursuant to Section 10
(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent,
E. R. Goddard & Company, Inc., Robertson, Missouri, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Automotive, Petroleum, and
Allied Industries Employees Union, Local 618, affiliated with
the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, AFL, or in any other labor
organization of its employees , by discharging and refusing to
reinstate any of its employees or by discriminating in any
other manner in regard to their hire or tenure of employment
or any term or condition of employment.
(b) Conducting polls among its employees in order to deter-
mine their sentiments with respect to the Union ; interrogating
its employees with respect to their feelings about the Union;
and threatening its employees with reprisals , including loss
of employment and loss of benefits, if the Union should succeed
in organizing its employees.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist
Automotive, Petroleum, and Allied Industries Employees Union,
Local 618, affiliated with the International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of America,
AFL, or any other labor organization , to bargain collectively
through representatives of their own choosing , to engage in
concerted activities for the purpose 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 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,
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Offer to William Schaper immediate and full reinstatement
to his former or substantially equivalent position, without prej-
udice to his seniority or other rights and privileges.
12 Although the Union did represent a majority of the employees in the requested inappro-
priate unit, it at no time represented a majority of the employees in the unit which we find
to be appropriate. Thus, as of June 9, 1952, there were at least 13 employees within the
appropriate unit, including the setup department employees, parts department employees,
lubrication men, body repair men, drivers, porters, and the 5 mechanics in the service
department , but excluding Lou Hodapp, whom the Trial Examiner found to be an office
clerical employee As of that date, however, and apparently at all times thereafter, only
5 of these employees had indicated a desire to be represented by the Union.
E. R GODDARD & COMPANY, INC. 859
(b) Upon his application , offer to Raymond Schaper immediate
and full reinstatement to his former or substantially equivalent
position , without prejudice to his seniority or other rights and
privileges.
(c) Make whole William Schaper and Raymond Schaper, in the
manner set forth in the section of the Intermediate Report
entitled " The Remedy ," for any loss of pay they may have
suffered as a result of the Respondent ' s discrimination against
them.
(d) Upon request , make available to the National Labor
Relations Board, or its agents, for examination and copying,
all payroll records , social-security payment records, time-
cards , personnel records and reports, and all other records
necessary to an analysis of the amounts of back pay due and
the rights of reinstatement under the terms of this Order.
(e) Post at its plant and office in Robertson , Missouri , copies
of the notice attached hereto and marked "Appendix A." 13
Copies of said notice , to be furnished by the Regional Director
for the Fourteenth Region, shall , after being duly signed by
the Respondent ' s 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 to employees are custom-
arily posted . Reasonable steps shall betakenbythe Respondent
to insure that said notices are not altered , defaced, or covered
by any other material.
(f) Notify the Regional Director for the Fourteenth Region,
in writing , within ten ( 10) days from the date of this Order,
what steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint , insofar as it
alleges other violations of the Act , be, and it hereby is,
dismissed.
13 In the event that this order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended , we hereby notify
our employees that:
WE WILL NOT discourage membership in Automotive,
Petroleum , and Allied Industries Employees Union, Local
618, affiliated with the International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of
America, AFL, or in any other labor organization of our
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees , by discharging and refusing to reinstate any
of our employees or by discriminating in any other
manner in regard to their hire or tenure of employment
or any term or condition of employment.
WE WILL NOT conduct polls among our employees in
order to determine their sentiments with respect to
Automotive, Petroleum , and Allied Industries Employees
Union, Local 618, affiliated with the International Brother-
hood of Teamsters , Chauffeurs, Warehousemen & Helpers
of America, AFL; interrogate our employees with respect
to their feelings about Automotive, Petroleum , and Allied
Industries Employees Union, Local 618, affiliated with
the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, AFL; or threaten
our employees with reprisals , including loss of employ-
ment or loss of benefits , if Automotive, Petroleum, and
Allied Industries Employees Union , Local 618, affiliated
with the International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen & Helpers of America, AFL, should
succeed in organizing our employees.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of the
right to self-organization , to form labor organizations,
to join or assist Automotive, Petroleum , and Allied
Industries Employees Union, Local 618, affiliated with the
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, AFL, or any other
labor organization , to bargain collectively through repre-
sentatives of their own choosing , to engage in concerted
activities for the purpose 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 right
may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer to William Schaper immediate and full
reinstatement to his former or substantially equivalent
position , without prejudice to his seniority or other rights
and privileges.
WE WILL offer to Raymond Schaper, upon his applica-
tion, immediate and full reinstatement to his former or
substantially equivalent position , without prejudice to his
seniority or other rights and privileges.
WE WILL make whole William Schaper and Raymond
Schaper for any loss of pay they may have suffered as a
result of our discrimination against them.
All our employees are free to become, remain , or to refrain
from becoming or remaining , members of the above-named
E. R. GODDARD & COMPANY, INC. 861
union or any other labor organization , except to the extent that
this right may be affected by an agreement in conformity with
Section 8 ( a) (3) of the Act . We will not discriminate in regard
to hire or tenure of employment or any term or condition of
employment against any employee because of membership in
or nonmembership in any such labor organization.
E. R. GODDARD & COMPANY, INC.,
Employer.
Dated .. .............. By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
Intermediate Report
STATEMENT OF THE CASE
Pursuant to a second amended charge filed on October 29, 1952, by Automotive, Petroleum,
and Allied Industries Employees Union, Local 618, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, herein called
the Union, the General Counsel for the National Labor Relations Board, herein respectively
called the General Counsel and the Board, by the Regional Director for the Fourteenth
Region (St. Louis, Missouri), on November 3, 1952, issued his complaint 1 against E. R.
Goddard & Company, Inc., herein called Respondent, alleging that Respondent had engaged
in certain 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. Copies of the charge, complaint, and a notice of hearing
were duly served upon Respondent and the Union.
With respect to the unfair labor practices the complaint alleged in substance that Re-
spondent (1) since on or about June 3, 1952, has failed and refused to bargain collectively
with the Union as the representative of its employees within an appropriate unit, (2) on or
about June 10, 1952, discharged Raymond Schaper and on or about June 13 discharged William
Schaper to discourage membership in the Union; and (3) from on or about May 1, 1952,
interrogated and polled its employees concerning their union membership and threatened
and warned them to refrain from engaging in concerted activity.
On November 13, 1952, Respondent filed its answer admitting certain allegations of the
complaint with respect to the nature of its business, but denying that it was engaged in
commerce within the meaning of the Act, and further denying that it had engaged in any
unfair labor practices. Pursuant to notice, a hearing was held before me at St. Louis,
Missouri, on December 10, 11, and 12, 1952. The General Counsel and Respondent were
represented by counsel and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses , and to introduce evidence bearing upon the issues
was afforded all parties. At the conclusion of the hearing I granted a motion to conform the
pleadings to the proof in formal matters and reserved ruling upon a motion by Respondent
to dismiss the complaint. This motion is disposed of by the recommendations hereinafter
made. The parties waived oral argument and were given until January 1 to file briefs. Sub-
I The complaint bears the date of October 3, 1952, which is a date prior to the date of
the amended charge as well as the second amended charge. Apparently this date should
have been November 3. The complaint, however, was not issued until November 3 and
this satisfies the requirement of the Rules and Regulations, Section 102.15, which provide
that "after a charge has been filed" the Regional Director "shall issue and cause to be
served upon all the other parties a formal complaint" etc
86Z DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sequently this time was extended by the Chief Trial Examuter to January 12. On that date
both Respondent and the General Counsel filed briefs.
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 RESPONDENT
Respondent is a Missouri corporation having its principal office and place of business at
Robertson, Missouri, near St. Louis, where it is engaged in the sale, assembly, and service
of trucks, tractors, and various farm machinery and equipment, and parts and accessories
therefor.
It is admitted that during the period from October 1, 1951, to September 30, 1952, Re-
spondent's total sales amounted to $962,768 and its total purchases $810,910. Machinery,
trucks, parts, and accessories were purchased from International Harvester Company, with
whom Respondent has five dealer sales-and-service agreements, amounting to $406,456.
All of the equipment purchased from International Harvester originated outside the State of
Missouri.
During this period Respondent handled goods destined for out-of-State shipment or per-
formed services outside the State of Missouri, of the admitted value of $3,627. In addition,
Respondent sold over the counter various parts to a value of over $18,000 to purchasers
giving out-of-State addresses. The only disagreement between the two parties as to the
character of its purchases and sales concerns this amount, the General Counsel contending
that it should be classed with the admitted amount of $3,627 in shipments made to customers
outside the State, and Respondent contending that these were local sales. The site of Re-
spondent's plant is close to the Illinois line, and I am of the opinion that the sales to indi-
viduals across the counter were to persons who themselves transported the parts across
the State line. I find, therefore, that the total amount of out-of-State sales directly made
amounted to $21,849.
Respondent, in its brief, admits that it received essential materials directly from sources
outside the State of Missouri valued at $253,210, and an indirect flow of goods or materials
originating outside the State of Missouri, valued at $481,975. Thus, even accepting Re-
spondent's contention that products to the value of only $3,627 were shipped outside the
State of Missouri, Respondent's brief concedes that the total of percentages in all categories
amounts to 113.1 percent, thus exceeding the minimum requirements set forth in the Rutledge
Paper Products decision. ?Accepting, as I do, the General Counsel's contention as to out-
of-State shipments and services, Respondent's total out-of-State sales and purchases, in-
cluding both direct and indirect purchases, slightly exceeds 156 percent and is thus far in
excess of the minimum standards set by the Board in its previous decisions.
The General Counsel relies also in its contention that the Board should assert its juris-
diction here upon the sales-and-service agreements with International Harvester Company,
covering McCormick farm equipment, power units, mild coolers, hauler tractors, and motor
trucks. The existence of substantially the same if not identical International Harvester
contracts led the Board in Hallam & Boggs Truck and Implement Company 3 to assert juris-
diction because of the substantial degree of control by Harvester over the manner in which
the company operated its business in the distribution of Harvester products. The Board
held that the dealer sales-and-service agreements showed on their face control by Harvester
of such elements as price, inventories, service facilities, financial records, insurance
coverage, and advertising. The Company, by reasonof these agreements, was found to operate
as an integral part of a multistate enterprise.
Respondent, though admitting the existence of Harvester sales-and-service agreements
and the percentages as set forth above, nevertheless insists that its business is essentially
local in character. With this I disagree. I recommend, therefore, that the Board assert its
jurisdiction in this case.
U. THE LABOR ORGANIZATION INVOLVED
Automotive, Petroleum, and Allied Industries Employees Union, Local 618, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
191 NLRB 625
3 95 NLRB 1443.
E. R. GODDARD & COMPANY, INC. 863
which is in turn affiliated with the American Federation of Labor, is a labor organization
admitting employees of Respondent to membership
A. The refusal to bargain
1 The appropriate unit, and the Union's majority therein
The complaint alleges that all garage laborers, utility men, lubrication and battery service
men, and all other employees in the garage, shop, and parts department of Respondent,
excluding mechanics and/or machinists, office and clerical employees, executive and pro-
fessional employees, guards, and supervisory employees as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act The employees in the claimed unit are generally referred to in the record as the
production employees The claimed unit excludes mechanics and machinists, employees
with greater skill Arlie Collins, a business representative for International Association of
Machinists, District No 9, testified that the Machinists and the Union have established as
a common practice a working agreement in various garages which provides that the Ma-
chinists represent or have jurisdiction of the machinists, mechanics, and teamsters, while
the Union shall have jurisdiction over the less skilled employees This agreement is said to
be pursuant to a national plan inaugurated by the American Federation of Labor in its
efforts to minimize jurisdictional disputes between rival unions
Respondent, though in its answer it denies that the unit set forth in the complaint is
appropriate, suggests no other unit as being more appropriate its brief is confined exclu-
sively to the question of the jurisdiction of the Board and the propriety of its assertion
Respondent raised at the hearing, however, a question as to the duties of two employees
included in the unit sought for These are Elmer Woolfolk and Lou Hodapp Respondent
appears to contend that Woolfolk was employed in its service department as a mechanic or
machinist, although Marion Fuchs, Respondent's manager, testified that Woolfolk was a
combination porter and lubrication man It seems only that Woolfolk spends some of his
time in the service department in the performance of his duties Most of it is spent in the
parts department As to Hodapp, it is contended that he was employed in the parts depart-
ment and should have been included in the unit However, the testimony of several witnesses
whom I credit is that Hodapp was employed principally in the office
I find that the unit contended for by the Union, consisting of 9 employees, comprising 3
assemblers, 3 parts men, I driver, 1 lubrication man, and I porter, including Woolfolk and
excluding Hodapp, is an appropriate unit No reason appears for considering that a larger
unit including machinists and mechanics would be more appropriate or one better designed
to represent the employees
Employees William Schaper, Elmer Woolfolk, James Capra, W. C. Polson, and Paul
Lasserre on May 27 and 28, 1952, signed application cards for membership in the Union,
which are in evidence As of May 28, therefore, and at all material times thereafter, the
Union represented a majority of the nine employees in the unit found to be appropriate
2 The refusal to bargain
a The request
On June 9, Ralph Vossmeyer and Carl Gibbs, business agents for the Union, called upon
Manager Fuchs at his office and told him that the Union represented a majority of Respond-
ent's employees in the unit The uncontroverted testimony of Vossmeyer and Gibbs is that
Fuchs on that occasion said that the Respondent would "go along and recognize the Union "
It is not contended by Respondent that he questioned the Union's majority status, and he
admitted while testifying that he had not asked to see the authorization cards Neither did
the Union offer to exhibit the cards The meeting closed upon Fuchs' promising to consult
with other officials of Respondent and to get in contact with the Union's representatives on
the subject
b Respondent's poll of its employees
It is admitted that during the afternoon of the following day, June 10, Fuchs called together
the 9, and only the 9, production employees who constituted the unit and distributed to
them ballots inscribed "for the Union" and "against the Union," and asked them to indicate
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their preference The employees marked the ballots forthwith and dropped them in a box
provided by Fuchs Thereupon Fuchs counted the ballots in the presence of the voters. It
was found that 6 had been marked for the Union and 2 against it, 1 ballot being adjudged invalid.
Respondent's sole defense to the polling of its employees is that one of the employees in the
unit had suggested it because he doubted if the Union represented a majority, a doubt which
Fuchs himself testified that he shared
The Board and the courts have held in numerous decisions that conducting a poll of em-
ployees as to their union representation is peruse violative of the Act as being intimidatory
as well as a usurpation of the statutory functions of the Board 4
c Other interference , restraint , and coercion
On June 10, prior to the poll, Fuchs talked to several of the employees concerning the
Union William Schaper, and Raymond, his son, both of whose subsequent discharges are
hereinafter discussed, as well as William Poison, testified that Fuchs told them in a group
that there would be no hard feelings if the employees voted for the Union, but that there
would not be any more overtime if the Union came into the plant and that Respondent could
no longer employ Raymond Schaper Paul Lassarre testified that Fuchs remarked to him
that a union representative had been around the plant, and said that a majority of the em-
ployees had signed up in the Union and asked Lassarre what he though about it Fuchs also
said, according to Lassarre, that if the Union came in there would be no Christmas bonus,
no extra days of work, and no overtime Fuchs, while testifying, did not specifically deny
making statements with respect to changed working conditions if the Union succeeded in
organizing the employees, but stated that he did not recall making the statement respecting
Raymond Schaper I find that he made in substance the statements related above
Conclusions
It has been found that on June 9 when the Union asked Respondent to recognize it as the
representative of the employees Fuchs, on behalf of Respondent, said that Respondent would
"go along and recognize the Union," asking time only to consult with the other of Respond-
ent's officials On the following day Fuchs himself conducted a poll among the employees
which, although violative of the Act, did show that a majority of the employees in the unit
favored the Union Preceding the poll, as has been found, Fuchs questioned several em-
ployees with respect to the Union and stated, in substance, that if the Union came into the
plant certain of the privileges previously enjoyed would be taken away, and that he would
have to let Raymond Schaper go This was calculated to undermine the Union's majority
status and substantiates the conclusion, which I draw, that Respondent at no time in good
faith questioned either the appropriateness of the unit or the Union's majority therein, but
on the contrary determined not to bargain with the Union By conducting the poll, and by the
previously related statements to its employees , Respondent interfered with, restrained,
and coerced them in the exercise of their rights guaranteed in Section 7 of the Act
B. The discriminatory discharges
1 William Schaper
Schaper first came to work for Respondent in June 1950 He was laid off in November or
December of that year due to a shortage of work. He was again employed in June 1951, and
worked until his discharge on June 13, 1952, as a farm machinery setup man in the assembly
department Polson, the other assembler in the department, though a member of the Union,
was a less skilled employee than Schaper and received a smaller wage About 9 weeks before
his discharge Schaper was given an individual wage increase of 10 cents an hour. As has
been found, he joined the Union on May 27, 1952, and was engaged in conversation concerning
the Union by Fuchs on June 10, just prior to Respondent's poll of the employees in the
appropriate unit Preceding the taking of the poll, as has been found, Fuchs told Schaper
and others that there would be no more overtime if the Union came in and that he could not
continue to employ Raymond Schaper, William Schaper' s son . On the occasion of this con-
versation Schaper replied, with respect to Respondent' s statement that it could not continue
to employ his son, that perhaps something could be worked out in that connection with the
4See for example, Apex Toledo Corporation, 101 NLRB 807, 31 LRRM 1129.
E. R. GODDARD & COMPANY, INC. 865
Union, to which Fuchs expressed doubt. Schaper also stated that so far as overtime was
concerned it made no difference with him and that he would rather work 5 days straight time.
On June 13, Weber, Schaper's foreman, came to him and told him that he was discharged.
Schaper shortly afterwards went to Weber's office and asked him the reason, using oppro-
brious language with respect to Weber, who told him only that he was "uncooperative."
On the following Monday Schaper and the four other union members went on strike and
picketed the plant. $
Respondent's defense to Schaper's charge is that Schaper, over a period of 6 or 7 weeks
prior to his discharge , had shown a lack of interest in his job, and particularly that he had
taken too much time in assembling a combine which he had begun on June 4. The first reason
is as nebulous as is the charge of lack of cooperation of which Schaper was informed on the
day of his discharge, and there is no objective evidence to support it. As to the second,
Weber testified that Schaper spent 41 hours assembling the combine in question when the
usual time required was only 21 hours. In the absence of any records with respect to the
time usually taken in the assembly of a combine of this character, and because of the fact
that Respondent did not advance this as a reason at the time of the discharge, I believe that
this was not the decisive factor in Schaper's discharge, but a mere afterthought.
Fuchs, who according to his testimony was in charge of hiring and firing, stated that he
made the decision to discharge Schaper on Thursday afternoon, June 12. The General Counsel
introduced in evidence a copy of a St. Charles (Missouri) newspaper containing a want ad
for an experienced setup man at Respondent's plant. It was stipulated at the hearing that
the ad was placed on Wednesday, June 11. In my opinion it was intended as a means of
finding a replacement for Schaper. Weber testified that he himself made the final decision
to discharge Schaper on that day.
Weber at another place in his testimony testified that he made up his mind during the
latter part of May to discharge Schaper, but determined to give him another chance. This
was shortly after he had made a service call on a tractor which Schaper had assembled and
following which, on May 19, Weber asked Schaper "if he wouldn't do a little better." Weber
then testified that he "decided to fire him the last time" on June 9, and talked it over with
Fuchs on June 12, when Fuchs told him to use his own judgment. If Weber's testimony in
this latter respect is correct then it is apparent that he finally decided to discharge Schaper
2 days before June 11 when Schaper finished his 41 hours of work on the combine he was
assembling , an unreasonable time, which according to Respondent, was the immediate cause
of Schaper's discharge. However, if the decision was finally made to discharge Schaper on
June 9 it follows that •at that time Schaper had worked approximately 16 hours less than the
41 hours which Respondent attributed to him.
I do not find any of the reasons advanced by Respondent for Schaper's discharge to be
persuasive. Where they are not vague they are contradictory. If Schaper had been discharged
for the reasons advanced I believe that he would have been told so at the time of his dis-
charge, instead of being told merely that he was "uncooperative." Schaper had been given
a 10-cent an hour increase in pay about 9 weeks before his discharge. The specific com-
plaints as to his work were only two in number and impress me as relatively trivial. It is
noteworthy that if Weber decided on June 9 finally to discharge Schaper, this was the very
day upon which representatives of the Union met with Respondent to request recognition. If
the final decision was made on June 11, as Weber otherwise testified, and which was the day
upon which an advertisement was inserted for his successor, this was the day following
Respondent's poll of the employees in the plant as well as the day following Fuchs' conver-
sation with Schaper himself as to his union membership and his statement that if the Union
came in his son, Raymond, could no longer be employed.
A still more conclusive consideration in my mind, however, has to do with the hire and dis-
charge of Raymond Schaper on June 10, 3 days before his father was separated.
Raymond Schaper
Raymond Schaper was 17 years old at the time of the hearing. He first came to work in
the assembly department at the close of school in the spring of 1950, helping his father
assemble machinery. This was at his father's request, motivated by his desire to keep the
boy occupied. After he had worked a short while, Respondent began the practice of paying
Raymond $2 a week as spending money. When school took up again in the fall, Raymond
5 There is nothing in the record to indicate the duration of the strike or its ultimate
outcome. It is not alleged in the complaint to be an unfair labor practice strike
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resumed his studies. At the end of school in June 1951, he again showed up at the plant.
This time Respondent put him on the payroll at $6 a week. In the spring of 1952, on June 9,
he again reported at the plant and was put on the payroll, now at $20 a week. He had obtained
a weight of 115 pounds and was able to lift heavier weights. He was beginning to learn the
trade. On June 10, the second day of his employment, he was present when Fuchs said that
if the Union came in there would be no more overtime and he would not be able to use him.
Raymond was not old enough to join the Union, and was not asked to vote in the poll, although
along with the others he did watch Fuchs count the ballots.
As soon as the count had been completed and it had been found that a majority of those in
the unit were favorable to the Union, Weber called Raymond to the office and told him that
there was not much work for him to do and that he was laid off. It is not contended that he
was ever told that his work was unsatisfactory. Fuchs, on cross-examination, testified: "I
don't recall exactly," when asked why Raymond Schaper was let go.
Weber testified that when Raymond was hired the previous day he told Fuchs that he
"thought that we should have a man a little older and a little stronger and somebody that
wouldn't get hurt if he was going to be employed." He stated, however, that Fuchs alone
made the decision to hire Raymond, and that he, Weber, alone made the decision to discharge
him the following day. In spite of the fact that Fuchs had hired Raymond only the day before,
Weber admitted that he did not give Raymond any reason for laying him off. His sole expla-
nation of this failure was that Raymond did not ask him why, but merely said "Yes, sir,"
and left.
The testimony of Fuchs is that he hired Raymond Schaper on June 9, again at the request
of his father, and that the decision to pay him $20 a week was reached after negotiations
with his father as to the proper wage. This being agreed upon, Fuchs told William Schaper
to bring his son to the plant. He testified that it was his intention to employ Raymond for the
entire summer if he was satisfactory.
Conclusions
I conclude that although there may have been some doubt in Weber's mind as to the advis-
ability of employing Raymond Schaper, he did not actively oppose it. There is nothing in the
record to indicate that during the 2 days the boy was employed he had proved unsatisfactory
or unequal to doing whatever physical labor was necessary, and no instance of such is
advanced. Obviously, he was better qualified than he was the previous two summers and
Respondent recognized this when it agreed to pay him $20 a week instead of the $6 it had
paid him the previous summer. It is apparent to me, and I find, that Raymond Schaper was
as satisfactory an employee on June 10, when he was discharged, as he was on June 9 when
he was hired, and was as satisfactory in the summer of 1952 as he had been the previous
two summers. To my mind, Raymond Schaper's abrupt dismissal, without any reason ad-
vanced him at the time, had nothing to do with his ability to handle the work or any other
factor relating to his employment. He was discharged within an hour or so after Fuchs' poll
of the employees showed that they favored the Union, and on the afternoon of the same day
in which he told the Schapers that if the Union came in Raymond Schaper would have to leave.
I am persuaded that the real reason was, as Fuchs foretold, that Raymond Schaper was
discharged because the Union had come into the plant.
Raymond Schaper's discharge throws further light on that of his father. It does not seem
to me plausible that Respondent had decided upon the discharge of William Schaper prior
to June 10, or that it had even seriously considered it. It is difficult to suppose that the
younger Schaper would have been hired principally as an accommodation to his father and
as an assistant to him, after discussion as to his proper wage, with the admitted expectation
that he would work all summer, if at the time Respondent was considering getting rid of
the senior Schaper. The circumstances point to no other reasonable conclusion than that
Respondent did not decide to dispense with William Schaper until after it ascertauied on
June 10 that he was interested in the Union and after Respondent had conducted a poll which
showed that in fact the Union was coming into the plant. Then, Raymond Schaper was imme-
diately discharged, as was his father, 3 days later.
I find that Raymond Schaper's discharge was a byproduct of his father's activity in the
Union and the Union's advent in the plant. It has been held on numerous cases that in situa-
tions such as this, where the discharge of one employee is due to the union activity of others,
it does not cease to be discriminatory because the employee in question was not personally
active in the Union.
E. R. GODDARD & COMPANY, INC. 867
I find that Respondent, by discriminating with respect to the hire and tenure of employment
of William Schaper and Raymond Schaper by discharging them, interfered with, restrained,
and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection with
the operations of Respondent 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 obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
I have found Respondent discharged William Schaper on June 13 and Raymond Schaper on
June 10, 1952, because of the former's union membership and activity and because of the
union membership and activity of the other employees in Respondent's plant. I will therefore
recommend that Respondent offer William Schaper immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority and other rights
and privileges, and make him whole for any loss of pay equal to the amount he would have
earned as wages from the date of his discharge to the date of the offer of reinstatement,
less his net earnings,6 to be computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company. 7
With respect to Raymond Schaper I shall recommend that if he should apply to Respondent
for employment at the close of school in 1953, or at any other time, it shall not refuse him
employment because of his own or his father's union membership or activity, or that of
other employees in the plant. I shall further recommend that Respondent make Raymond
Schaper whole for any loss of pay suffered by him as a result of the discrimination, by
payment to him of a sum of money equal to the amount he would have earned as wages from
June 10, 1952, to September 1, 1952, less his net earnings computed as described above.
Having found that the Union represented a majority of Respondent 's employees in an
appropriate unit and that Respondent refused to bargain collectively with it, I shall recom-
mend that Respondent , upon request , bargain collectively with the Union as the exclusive
representative of the employees in the appropriate unit.
The scope of Respondent 's illegal conduct discloses in my opinion a purpose to defeat
self-organization among its employees. Such conduct, which is specifically violative of
Section 8 (a) (1) and (3) of the Act, reflects a determination generally to interfere with,
restrain , and coerce its employees in the exercise of the right to self-organization. Because
of Respondent's unlawful conduct and since there appears to be an underlying attitude of
opposition on the part of Respondent to the purposes of the Act, to protect the rights of
employees generally I am convinced that if Respondent is not restrained from engaging in
such conduct the danger of their commission in the future is to be anticipated from its conduct
in the past. In order, therefore, to make effective the interdependent guarantee of Section 7
of the Act and to prevent a recurrence of unfair labor practices, and thereby minimize indus-
trial strife which burdens and obstructs commerce, and thus effectuate the policies of the
Act, I will recommend that Respondent cease and desist from in any manner infringing upon
the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing and from the entire record in the case. I make the following:
CONCLUSIONS OF LAW
1. Respondent, E. R. Goddard & Company, Inc., is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. Automotive, Petroleum, and Allied Industries Employees Union, Local 618, is a labor
organization within the meaning of Section 2 (5) of the Act.
3. By discharging William Schaper on June 13, and Raymond Schaper on June 10, 1952,
Respondent violated and is violating Section 8 (a) (3) of the Act.
6Crossett Lumber Company, 8 NLRB 440.
7 90 NLRB 289
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. All garage laborers, utility men, lubrication and battery service men, and all other
employees in the garage, shop and parts department of Respondent, excluding mechanics
and/or machinists, office and clerical employees , executive and professional employees,
guards , and supervising employees as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section (b) of the Act.
5. Automotive, Petroleum, and Allied Industries Employees Union, Local 618, at all
times on and after May 28, 1952, has been the exclusive bargaining representative within
the meaning of Section 9 (a) of the Act, of all employees in the aforesaid unit for the pur-
poses of collective bargaining.
6. By refusing to bargain collectively with Automotive, Petroleum, and Allied Industries
Employees Union, Local 618, Respondent has engaged in and is engaging in an unfair labor
practice within the meaning of Section 8 (a) (5) of the Act.
7. By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
8. 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.]
LOS ANGELES BUILDING AND CONSTRUCTION TRADES
COUNCIL, AFL; LOCAL UNION NO. 250, UNITED AS-
SOCIATION OF JOURNEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED
STATES AND CANADA; and INTERNATIONAL BROTHER-
HOOD OF BOILERMAKERS, IRON SHIPBUILDERS AND
HELPERS OF AMERICA, AFL, LOCAL UNION NO. 92 and
OIL WORKERS INTERNATIONAL UNION, CIO. Case No.
21-CC-146. June 30, 1953
DECISION AND ORDER
On February 18, 1953, Trial Examiner Wallace E. Royster
issued his Intermediate Report in the above-entitled proceed-
ing, finding that the Respondent Council had engaged in certain
unfair labor practices, and recommending that it cease and
desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that Respondents Local250 and
Local 92 had not engaged in certain other alleged unfair labor
practices and recommended that the complaint against Local
250 and Local 92 be dismissed with respect to such allegations.
Thereafter, the Respondent Council and the General Counsel
filed exceptions and supporting briefs. The Respondents Local
250 and Local 92 filed reply briefs.
The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial error was committed. The rulings
are hereby affirmed." The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record
I Prior to the issuance of the Intermediate Report, the General Counsel moved to reopen the
hearing so as to introduce into the record the minutes of the Council's meetings, which he had
inadvertently failed to do at the time of the initial hearings (December 16, 17, and 18, 1952).
The Council excepts to the Trial Examiner's order by which the hearing was reopened on
January 21, 1953. Although the minutes were available to the General Counsel at the time of
the initial hearings, we nevertheless believe that the Trial Examiner acted within his dis-
105 NLRB No. 135.