Ed Taussig, Inc.

National Labor Relations Board - Board Decisions

Apr 23, 1954

108 N.L.R.B. 470 (N.L.R.B. 1954)

470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ED TAUSSIG , INC. and INTERNATIONAL ASSOCIATION OF
MACHINISTS , AFL. Case No . 15-CA-582 . April 23, 1954
DECISION AND ORDER
On October 30, 1953 , Trial Examiner James A . Shaw issued
his Intermediate Report in the above - entitled proceeding, find-
ing 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. The
Trial Examiner also found that the Respondent hadnot engaged
in certain other allegedunfair labor practices and recommended
a dismissal of those allegations . Thereafter , the Respondent
filed exceptions and a supporting brief.
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 the case , and hereby adopts the find-
ings conclusions , and recommendations of the Trial Examiner.
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 Respond-
ent, Ed Taussig, Inc., Lake Charles , Louisiana , andits agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Dominating or interfering with the administration of Em-
ployee - Management Committee , Ed Taus sig , Inc., or the forma-
tion or administration of any other labor organization, and
from contributing support to it or to any other labor organiza-
tion , and from otherwise interfering with the representation
of its employees through a labor organization of their own
choosing.
( b ) R e c o g n i z i n g Employee -Management Committee, Ed
Taussig, Inc., or any successor thereto, as the representative
of any of its employees for the purpose of dealing with the
Respondent concerning grievances , labor disputes , wages, rates
of pay , hours of employment , or other conditions of employment.
2. Take the following affirmative action , which the Board
finds will effectuate the policies of the Act:
(a) Withdraw all recognition from Employee - Management
Committee, Ed Taussig , Inc., as the representative of any of
its employees for the purpose of dealing with the said Respond-
ent concerning grievances , labor disputes , wages, rates of pay,
hours of employment , or other conditions of employment, and
completely disestablish said organization as such representa-
tive.
108 NLRB No. 82.
ED TAUSSIG, INC. 471
(b) Post at its operations in Lake Charles, Louisiana, copies
of the notice attached to the Intermediate Report. i Copies of
said notice, to be furnished by the Regional Director for the
Fifteenth Region, shall, after being duly signed by a representa-
tive of Respondent, be posted by the Respondent immediately
upon receipt thereof, and maintained by it for sixty (60) con-
secutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Fifteenth Region, in
writing, within ten (10) days from the date of this Order, what
steps the Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint, insofar as it
alleges that the Respondent has violated the Act by conduct
other than that found to be violative herein, be, and it hereby
is dismissed.
I This notice shall be amended by substituting for the words, "The Recommendations of
a Trial Examiner," the words "A Decision and Order." In the event that this order is en-
forced by a decree of a United States Court of Appeals, the notice shall be further amended
by substituting for the words "Pursuant to a Decision and Order" the words "Pursuant to
a Decree of a United States Court of Appeals, Enforcing an Order."
Intermediate Report
STATEMENT OF THE CASE
Upon a charge filed February 25, 1953, by International Association of Machinists, AFL,
herein called the Union, the General Counsel of the National Labor Relations Board, herein
called the General Counsel and the Board, issued his complaint and notice of hearing thereon
against Ed Taussig, Inc., Lake Charles, Louisiana, herein called the Respondent, alleging
violations of Section 8 (a) (1) and (2) and Section 2 (6) and (7) of the Act.
Copies of the charge, the complaint, and notice of hearing thereon were duly served upon
the Respondent and the Union
With respect to the unfair labor practices, the complaint alleged in substance that the Re-
spondent: (1) On or about January 7, 1953, initiated, formed, sponsored, and promoted the
"Employment-Management Committee, Ed Taussig, Inc ," or "Employees' Committee,"
among its employees and thereafter has assisted, dominated, contributed to the support of,
and interfered with the administration of said Employee-Management Committee, Ed Taussig,
Inc , and Employees' Committee, (2) on or about February 16, 1953, by President Ed Taussig,
threatened and warned employees that it was spying upon and keeping under surveillance the
Union members and their activities, and (3) that by the acts described above the Respondent
has engaged in and is engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and (2) and Section 2 (6) and (7) of the Act
Respondent duly filed an answer in which it admitted certain jurisdictional facts and alle-
gations in the complaint as regards its corporate structure and its volume of business for a
stated period but denied that it was engaged in commerce within the meaning of the Act. It
further denied the commission of any of the alleged unfair labor practices.
Pursuant to notice a hearing was held on August 24 and 25, 1953, before the undersigned,
the duly designated Trial Examiner at Lake Charles, Louisiana. The General Counsel and
the Respondent were represented by counsel, and the Union by lay representatives. Full
opportunity was granted the parties- to be heard, to examine and cross-examine witnesses,
and to introduce evidence pertinent, to the issues. At the onset of the hearing the General
Counsel's representative i moved to withdraw the allegation in the complaint alleging that
'Hereinafter referred to as the General Counsel.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent by its President Ed Taussig, on or about February 16, 1953, threatened and
warned employees that it was spying upon and keeping under surveillance the Union members
and their activities, on the grounds that he was unable to prove the allegation by substantial
evidence. At the same time he apologized to the Respondent's representatives on the record
for having inserted such an allegation in the complaint in the first instance . The motion to
withdraw was granted by the undersigned. With the granting of this motion there remained
for consideration in this proceeding but one alleged violation of-the Act by the Respondent.
However, shortly after the above-described motion to withdraw was disposed of, the General
Counsel moved to amend his complaint to the following extent, "Respondent on or about
December 18, 1952, by President Ed Taussig, interrogated and questioned employees con-
cerning their activities for and on behalf of the Union." The motion to amend was granted
by the undersigned. At the same time the Respondent was permitted to amend its answer
denying the allegation. Thereafter, during the course of the hearing, the General Counsel
again moved to amend his complaint to add an additional allegation to the effect "that the
Respondent on or about January 2, or 3, 1953, by Service Mallager, Abrahams, offered a
promise of benefit to the employees if they would not engage in union and concerted activity;
further, that a promise of benefit was-made to cause certain employees to keep the Union
out. That is the extent of the amendment." After due consideration the undersigned granted
this motion to amend , and at the same time permitted the Respondent to amend its answer
denying the allegation.
At the close of the hearing the General Counsel moved to conform the pleadings to the
proof as regards minor matters, such as names, dates, and the like The motioii was granted
by the undersigned without objection. At the same time counsel for the Respondent moved to
dismiss the complaint in its entirety on the theory that the General Counsel had failed to
prove his case by a preponderance of the evidence. Ruling thereon was reserved by the
undersigned. It is hereby denied for reasons which will be apparent hereinafter. After the
above motions were disposed of the General Counsel and counsel for the Respondent argued
orally before the undersigned in support of their respective positions. Thereafter, they were
advised of their right to file with the undersigned proposed findings of fact, conclusions of
law, and briefs in support thereof. A brief was received from counsel for the Respondent on
or about September 30, 1953, and has been duly considered by the undersigned.
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 OF THE RESPONDENT
In its answer, and at the hearing herein by way of a stipulation, the Respondent conceded
the following facts as regards its business: It is a Louisiana corporation maintaining its
principal office and place of business at Lake Charles, Louisiana, (2) it is engaged in selling
and servicing new and used cars and trucks under a standard franchise granted by the Ford
Motor Company; (3) its so-called "franchise" from the Ford Motor Company is not exclusive
in the area in which it sells and services Ford products (that is that others may likewise
engage in and enter into contractual relations with said Ford Motor Company for the sale
and servicing of Ford products in the area now serviced by it); (4) the conduct of its business
is under its exclusive control; (5) during the year 1952 it purchased automobiles, parts, and
trucks valued in excess of $ 1,000,000, of which approximately 50 percent was purchased and
shipped to it at its place of business in Lake Charles, Louisiana, from points outside the
State of Louisiana, and (6) its total sales during the year 1952 were in excess of $1,000,000,
approximately 5 percent of which was made to points outside the State of Louisiana.
The Respondent contends that in spite of the volume of its business it nevertheless is
engaged in an enterprise that is essentially intrastate and local in character and consequently
its effect on interstate commerce is neglible and of such a nature that it does not warrant the
Board's assertion of jurisdiction. In support of its position it relies primarily upon N. L. R B.
v. Bill Daniels, et al , 202 F. 2d 579 (C A. 6). In that case the court of appeals denied en-
forcement of the Board's order, on the theory that the business involved in those particular
cases were essentially local in character and not subject to the jurisdiction of the Board. A
perusual of the court's opinion clearly shows that the commerce facts involved therein are
entirely different from those involved in the instant case. There, the automobile dealers in-
volved were engaged in business within the State of Michigan, and purchased and sold their
ED TAUSSIG, INC. 47 3
merchandise therein. Here, it is admitted that approximately $ 500,000 of the Respondent's
purchases, during the year 1952, originated outside the State of Louisiana, and that approxi-
mately $ 50 ,000 of its total sales during the same period were made outside the State of
Louisiana. Clearly the admitted volume of the Respondent's business meet the standards
set by the Board in cases of this nature, and as enunciated in its Fifteenth Annual Report 2
Moreover the Board has previously asserted juridiction over the Respondent's operations
in Case No. 15-RC-689. In the circumstances the undersigned finds that the Respondent
herein, Ed Taussig, Inc., Lake Charles, Louisiana, is engaged in commece within the
meaning of Section 2 (6) and (7) of the Act.
IL THE LABOR ORGANIZATIONS INVOLVED
International Association of Machinists , AFL, is a labor organization within the meaning
of Section 2 (5) of the Act.
The complaint alleges and the answer denies that the "Employee - Management Committee,
Ed Taussig , Inc.," or " Employees ' Committee," is a labor organization within the meaning
of the Act. For reasons which will be apparent hereinafter the undersigned now finds that
the true name of this organization is the "Employee - Management Committee , Ed Taussig,
Inc.," and that it likewise is a labor organization within the meaning of Section 2 (5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The alleged violation of Section 8 (a) (2) and (1) of the Act
At the onset of the hearing herein the General Counsel requested the undersigned to take
judicial notice of the Board ' s findings in Ed Taussig , Inc., and International Association of
Machinists, AFL, Case No. 15-RC-689. As indicated by the style of case in its caption this
was a representation, or what is technically known as a proceeding for "Certification of
Representatives ," of Respondent ' s employees for purposes of collective bargaining , pursuant
to Section 9 (a) and (c) of the Act There being no objection from counsel for the Respondent
to the request, the undersigned granted it and agreed to consider it for "background" purposes
in this proceeding. As the case proceeded it became obvious that the reception of the General
Counsel's request as regards Case No. 15-RC-689, was most helpful to all concerned in
understanding the issues raised by the allegation in the complaint that the Respondent had en-
gaged in conduct violative of Section 8 (a) (2) of the Act. In passing, the undersigned desires
to state that this is the sort of material that quite rightly may be called and used as "back-
ground" since it goes to explain much of the Respondent's subsequent conduct. As the under-
signed sees it, " background " evidence serves a useful purpose on many occasions , but like
so many "privileges" may be abused and become a source of irritation between the parties
over matters that in the final analysis are meaningless in law, (since they cannot be a pred-
icate for a finding of fact) and insistence on its admissibility actually obstructs the accom-
plishment of the stated purpose of the Act, which is to encourage industrial peace and elimi-
nate the causes of "industrial strike." 3
The record clearly shows that for many years before the Union herein filed its petition in
Case No. 15-RC-689, the mechanics or service employees of the Respondent had been repre-
sented for the purpose of collective bargaining by the Louisiana Automobile Workers'
Association, a local association of mechanics and auto repairmen. At the time the above pe-
tition was filed this organization had a contract with the Respondent which was due to expire
on or about June 1, 1952.
Pursuant to the petition filed by the Union herein the Board conducted a hearing in the
matter at Lake Charles, Louisiana, on April 15, 1952. Thereafter, on May 22, 1952, the Board
issued its Decision and Direction of Election In its Decision the Board found that the following
group of employees constituted a unit appropriate for the purposes of collective bargaining
2 See also N L. R. B. v. Howell Chevrolet Company, 204 F 2d 79 (C A. 9), and cases
cited therein; Tate Chevrolet Company, 106 NLRB 64.
3It was for precisely this reason that the undersigned rejected certain offers of testimony
by the General Counsel at the hearing herein, that admittedly involved incidents that were
barred by the provisions of Section 10 (b) of the Act, and consequently could not have been
the basis of findings of unfair labor practices.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All service department employees of the Employer at its Lake Charles, Louisiana.
sales and service establishment, including parts or counter men, mechanics, used
car lot mechanics, body and paint men and their helpers, radiator men, wrecker drivers,
battery men, tower operator, glass men, radio men, wash and grease rack men, and
janitors and porters , and excluding traveling parts -department salesmen , office clerical
employees , service managers , assistant service managers , parts managers and assist-
ants, parts sales manager, service station employees, new and used car salesmen,
professional employees, guards, watchmen, and all supervisors as defined in the Act.
Pursuant to the Board's direction of election the Regional Director for the Fifteenth Region
conducted an election among the Respondent's employees in the above-found appropriate
unit on June 10, 1952. The tally of ballots shows the following results of the election:
TALLY OF BALLOTS-
The undersigned agent of the Regional Director certifies that the results of the
tabulation of ballots cast in the election held in the above case, and concluded on the
date indicated above, were as follows:
1. Approximate number of eligible voters 63
2. Void ballots 0
3. Votes cast for 30
4. Votes cast for 2
5. Votes cast for
6 Votes cast against participating labor
organization(s) 23
7. Valid votes counted (sum of 3, 4, 5, and 6 55
8 Challenged ballots 8
9. Valid votes counted plus challenged ballots
(sum of 7 and 8) 63
10. Challenges are (not ) sufficient in number
to affect the results of the election.
11. A majority of the valid votes has (not) been
cast for Any
Choice
As indicated above the results of the election were not decisive in view of the eight chal-
lenged ballots. As a result the Regional Director ordered a hearing to be had on this question.
Pursuant to the Regional Director's order a hearing on the challenged ballots was held at
Lake Charles, Louisiana, on September 24 and 25, 1952.
As a result of the hearing on challenged ballots the Board ordered a runoff election to
determine the question concerning representation. The election was held on January 6, 1953.
The results were as follows: 16 votes for the IAM, the Union herein, 24 votes for no union,
and 2 ballots were challenged On January 14, 1953, the Board certified the results of the
election. At no time between the filing of the petition for certification of representatives on
February 28, 1952, and the Board's final certification of the results of the election on January
14, 1953, did the Union file any objections to .the conduct of the election or in any other manner
charge the Respondent herein with the commission of any unfair labor practices.
It was in the light of the "background" described above that the events with which we are
concerned herein occurred.
As the undersigned sees it there is little if any dispute as regards the Respondent's role
in the initiation, sponsorship, and support of the "Employee-Management Committee, Ed
Taussig, Inc."
The uncontradicted and undenied testimony in the record by witnesses called on behalf of
both the General Counsel and the Respondent clearly shows that Ed Taussig, the Respondent's
president, was the moving personality behind the creation of the organization. According to
Taussig, he felt that with the rejection of the employees in the service department of the
Union that it would be a good idea for all of the employees to have some sort of a repre-
sentation plan to present their problems as a group to top management , and yet at the same
time not interfere with the right of the individual employee to privately discuss his problems
with either himself or other members of the Respondent's top hierarchy of management. Over
the years he had heard several of the rank-and-file employees speak favorably of such a plan
ED TAUSSIG, INC. 47 5
With this in mind he met with the department heads and discussed the formation of some sort
of an organization for this purpose. The upshot of this meeting was to the effect that Taussig
would present his ideas to the employees themselves and thus learn what they thought of the
idea. Accordingly, he met with the employees in each department separately and outlined to
them his ideas in this regard. At the time he read to them from notes he had prepared on
the subject, some of which were his own ideas and some were gleaned from his conversations
with several of the employees over the years. At each of these meetings no supervisory em-
ployees of the departments concerned were present . He told the employees that he would
appreciate their comments, and some few took advantage of his offer and made helpful
suggestions. At the close of each meeting with the employees he would ask those present if
they had an objection to the formation and installation of such a plan. Since none of the em-
ployees lodged objections the Respondent then proceeded to put the plan into effect. The
formal compilation of Taussig's ideas and the suggestions made by the department heads was
left to Mr. Robert Wheeler, the office manager. Wheeler dictated them to his secretary,
Mrs. Lois Fuqua. At the same time the procedure for electing representatives of the various
departments was embodied into the proposed plan. Mrs. Fuqua then took the plan to a local
printer and had approximately 150 copies printed at the Respondent's expense. They were
later turned over to the department heads for distribution to the employees under their
supervision. Since the plan speaks for itself, and quite frankly is a controlling factor in the
undersigned's ultimate disposal of the issues herein, he attaches it hereto in its entirety
as "Appendix A."
Even though the undersigned has made the plan as a whole a part of this report neverthe-
less he feels that it is necessary to insext certain excerpts therefrom from time to time
herein to either clarify or emphasize pertinent sections of his report. Consequently this will
be done hereinafter.
That the plan itself was initiated by the Respondent is clearly shown in the introductory
paragraph of the document distributed to the employes, and attached hereto as "Appendix A."
It reads as follows:
INTRODUCTION: In order to foster better relationship between the Employees and
Management of Ed Taussig, Inc., it has been recommended by the Department Heads
of this firm that an Employee-Management Committee be set up, and function with
the purpose in mind to have better working conditions as well as better working re-
lationship among all the employees of our firm, and create and foster a better type of
understanding among all of us.
It was the recommendation of the Department Heads that the following Departments
have one ( 1) person, other than a Department Head or Supervisor , elected by his fellow
employees in his Department ; and, that person represent his Department for a period
of four (4) or eight (8) months, as should be the wishes of the Committee.
Pursuant to the instructions set forth in the printed copies of the plan , elections were held
among the employees to select representatives from the various departments. The ballots
were typed and stenciled by Mrs. Fuqua, and distributed by her to the employees at the time
they voted. The election was conducted onJanuary28, 1953. Each department voted in accord-
ance with the prearranged plan as set forth in "Appendix A." Each ballot contained thenames
of all the employees in each of the five departments. The vote was by secret ballot. There is
no evidence showing that the Respondent interfered with the conduct of the election, or that
any supervisory employees took an active interest in the election process, except that John
Abrahams, manager of the service department, assisted Mrs. Fuqua when the employees
in his department voted.
Shortly after the representatives from the various departments were chosen, they met
with the following representatives of management, President Ed Taussig and Vice-President
and General Manager Garland Mahaffey. Since then the representatives have met regularly
each month and discussed and disposed of various problems concerning wages, hours, and
other conditions of employment. Among the issues that were discussed and disposed of were
the following: (1) A change in the vacation plan; (2) the establishment of a $ 60 per week
minimum wage for the service employees; (3) an agreement with the Respondent as regards
the purchase of coveralls and uniforms used by the mechanics; and (4) the settlement of
individual grievances lodged with the department representatives by the various employees.
The record shows that the "Employee-Management Committee, Ed Taussig, Inc.," here-
inafter called the Committee, is an extremely informal organization. For example, it has
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
neither a constitution nor bylaws; there are no elective officers, and no initiation fees or
dues are required from the employees. As the undersigned sees it, the membership consists
of all employees of the Respondent, regardless of their duties and job classification. More-
over, there is no evidence of formal contractual relations between the parties.
Conclusions as Regards the Alleged Violation of Section 8 (a) (2)
From all of the foregoing, particularly the plain language of the plan as evidenced in
Appendix A. the undersigned is convinced that the Respondent by and through its president,
Ed Taussig, in particular, initiated, formed, sponsored, and promoted the "Employees
Management Committee, Ed Taussig, Inc.," and since its formation has assisted, dominated,
contributed to the support of and interfered with, its administration, and has thereby en-
gaged in unfair labor practices within the meaning of Section 8 (a) (2) and (1) of the Act.
The undersigned is not unmindful of the total lack of substantial evidence to the effect
that the Respondent has engaged in any other unfair labor practices, and that as far as this
record is concerned has never in any other manner interfered with the rights of its em-
ployees as guaranteed them in Section 7 of the Act.4 Moreover, the undersigned is convinced
that President Taussig was motivated by a sincere desire to deal fairly with the employees
when he engaged in the above-described conduct. Nevertheless, the Respondent by its conduct
invaded a field of activity that is exclusively reserved for its employees, and the Board and
the courts in a long line of decisions, too numerous to encumber this report with endless
excerpts therefrom, have held that such conduct and the activities described above are
violative of the Act.5 Here the Respondent actually initiated and sponsored the establish-
ment of the committee, as the testimony of Taussig himself clearly shows. He arranged the
meetings and in his talks to the employees not only suggested the formation of the committee,
but its modus operandi as well. Moreover, and in some respects of the utmost importance,
is the fact that the acceptance or rejection of the plan was not left to the employees by an
affirmative vote, but was by way of negative approval, that is they were given the choice of
either expressing their disapproval, if any, after Taussig had submitted his proposal, or
expressing their approval by their silence. Realistically approaching such a proposition the
undersigned is convinced that in the circumstances described above the employees had little
if any chance to express freely their true feelings in this regard; it is reasonable to infer
that when the position of the parties is taken into consideration, then silent approval was to
be expected.
True, the support given the committee was negligible from a financial standpoint, but
"support" may be expressed by other "tokens," such as meeting places, stenographic help,
and the like, all of which are indicia of support and are present here. Meager as the Re-
spondent's tangible support was, nevertheless it was "support" within the meaning of the
Act, and the undersigned so finds.
Upon all of the foregoing the undersigned finds that by the conduct described above, the
Respondent herein engaged in unfair labor practices within the meaning of Section 8 (a) (2)
of the Act. He also finds that such conduct itself was independently violative of Section 8 (a)
(1) of the Act.
In section II, above, the undersigned intimated that he would comment further as regards his
finding that the "Employee-Management Committee, Ed Taussig, Inc." was a labor organiza-
tion within the meaning of Section 2 (5) of the Act. It is clear from the findings made immedi-
ately above that the "Committee" dealt with the Respondent on various questions concerning
wages, hours, and other conditions of employment. Moreover, it is also abundantly clear that
it was formed for precisely that purpose. Without more ado the undersigned reaffirms and
reiterates here his finding that the "Employee-Management Committee, Ed Taussig, Inc.,"
is a labor organization within the meaning of Section 2 (5) of the Act.
B. Alleged independent violations of Section 8 (a) (1)
of the Act
As indicated above the General Counsel at the hearing herein orally offered 2 "eleventh
hour" amendments to his complaint in which he alleged 2 separate and independent violations
4See infra.
5 To cite but a few, see N. L. R. B. v. Arrowhead Rubber Co., 146 F. 2d 749 (C. A. 5);
N L. R. B . v. Red Arrow Freight Lines , Inc., 180 F . 2d 585 ( C. A 5), certiorari denied
340 U. S 823.
ED TAUSSIG, INC. 477
of Section 8 (a) (1) of the Act, which were allowed by the undersigned. Each will be disposed
of below.
The first of these amendments offered by the General Counsel was to the effect that the
Respondent by its President Ed Taussig interrogated its employees concerning their Union
activities.
In support of this allegation the General Counsel offered the testimony of one Bernard
Ricketts, a former employee of the Respondent. According to Ricketts he had a conversation
with President Taussig, sometime before Christmas 1952, in which Taussig askedhim "...
how I stood and at the time I told him I was with him" and that Taussig then said, "That is
fine ," and walked away . The record shows that at the time the conversation allegedly took
place that there was considerable talk around the service department about the runoff elec-
tion which was to be conducted by the Board among the employees in the appropriate unit
on January 6, 1953.
On cross-examination Ricketts used somewhat different phraseology in his account of his
alleged conversation with Taussig. His version then was that Taussig said, "Are you with
me," and that he replied, "I am on your side, Yes, sir." He further testified that Taussig at
no time during the course of the conversation specifically mentioned either the union or the
coming runoff election.
Taussig flatly denied that he had any such conversation with Ricketts.
On cross-examination it was developed that Ricketts, while he was an employee of the
Respondent , was the source of considerable trouble and irritation not only to the officials of
the Company, including Taussig, but to the other employees as well. As a matter of fact
Ricketts readily admitted that he himself was concerned with his mental condition and had
gone to the officials of the Respondent for advice in this regard . Moreover , he felt so con-
cerned about his condition that he sought the advice and services of a psychiatrist in an effort
to alleviate his troubles . What his troubles or eccentricities were the undersigned has no
way of ascertaining nor would he attempt to do so, since he is not a psychiatrist, and not
qualified to render an opinion in such matters . From what the undersigned gleans from
Ricketts ' testimony he was obsessed with the idea that the Respondent was "gyping" him
out of his rightful earnings. He worked on a commission basis, and frequently would get into
arguments not only with his superiors but with his fellow workers as well as regards the
work he performed on cars assigned him for wheel adjustment.
From the foregoing it is obvious that two serious questions are posed for the undersigned's
consideration. First, the question of credibility, in view of Taussig's denial that he had any
such conversation with Ricketts. The undersigned saw both witnesses and from their demeanor
is inclined to credit Taussig's denial that he had such a conversation with Ricketts. Taussig
testified at considerable length at the hearing herein and he impressed the undersigned with
his frankness and his admissions concerning matters that were adverse to his interest. He
also impressed the undersigned as an intelligent and astute person . It is inconceivable that
he would single out Ricketts alone amongst the approximately 60 employees in the appropriate
unit and interrogate him in the mode and manner described above, particularly in view of the
fact that he well knew at the time the conversation allegedly took place that Ricketts was not
only a "problem" for the psychiatrists but the cause of considerable annoyance to himself
and other officials of the Respondent. Such conduct is at odds with the undersigned's im-
pression of Taussig , and completely "out of character," so to speak.
Ricketts on the other hand impressed the undersigned as a disgruntled sort of an individual,
with a tendency to forget material matters, particularly on cross-examination. Though he did
not impress the undersigned as a willfully dishonest witness, he did nevertheless leave the
impression that he was not sure himself as to just what was said in the conversation at issue.
For example , he gave one version as to the subject matter on direct and another cross-exami-
nation , either of which'mightbe construed as having opposite meanings. In resolving the credi-
bility issue, the undersigned cannot ignore the fact that the allegation in the complaint upon
which this issue is raised is the only contention made by the General Counsel that President
Taussig personally engaged in unfair labor practices of this nature (assuming the under-
signed would infer that if such statements were actually made they amounted to interrogation
of Ricketts) either before the Board election or thereafter. When this fact is taken into con-
sideration in view of all the circumstances found here, the undersigned is convinced and
finds that Taussig did not make the specific statements attributed to him by Ricketts. In the
circumstances , the undersigned will recommend that this allegation in the complaint be
dismissed in its entirety . Having so found the undersigned deems it unnecessary to resolve
the second question posed by the testimony of Ricketts as to whether or not the alleged
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interrogation of Ricketts by Taussig constituted interference , restraint , and coercion within
the meaning of Section 8 (a) (1) of the Act.
Now as to the second amendment to the complaint made at the hearing herein to the effect
that the Respondent by and through one John Abrahams offered a promise of benefit to the
employees if they would not engage in Union and concerted activity , with the intent to cause
certain employees to keep the Union out.
In support of this allegation the General Counsel offered the testimony of Ralph Ardoin.
According to Ardoin, Abrahams was talking to a group of employees on or about January 2
or 3, 1953, about a present they had given him for Christmas. At the time Abrahams was in a
jovial and happy mood and was around thanking the boys for their gift and thoughtfulness in
remembering him. While he was in such a mood Ardoin asked him about a a pay raise.
Abrahams said he "couldn't do anything at the moment because his hands were tied," but
that "after this mess is-all over with like I promised you, we will see what we can do " When
queried by Ardoin as to what he meant by the "mess" Abrahams said". . there was going
to be another election coming up pretty soon."
In explanation of what Abrahams meant by the "mess," and the statements made by him in
the January 1953 conversation in reference to certain statements made at the time he assumed
the duties of service manager in March 1952, Ardoin testified to the effect that when Abrahams
took over the department he made a little speech to the employees, the gist of which was as
follows:
Q. Did you have a conversation before January 2 or January or January 3, 1953,
in which Mr . Abrahams made some sort of commitment or promise or statement as
to what he would do after he became service manager, or after he was service manager
for a period of time?
A No, _ no more than he told us a day or two after he became service manager.
Q. That is the one I am asking about. Can you tell what he said to you on that occasion
and how the conversation started?
A. He told us he was glad he had been called upon to be the service manager and he
was going to try his best to work with us boys and try to clear this mess we had up
Q. Did he say anything about what change would be made?
A. No, he didn't make no particular promises or nothing.
Q. Did he mention anything about within a period of time after he became service
manager?
MR. STOCKWELL- I object to telling the witness what to say.
TRIAL EXAMINER SHAW: It is obvious he is trying to refresh his recollection. I
realize it is leading but sometimes it appears , that cannot be helped I will not permit
much of it but I will permit a little latitude. Go ahead. The objection is overruled He
really hasn't got into it yet.
Q. (By Mr. Hutcheson) What was the extent of his conversation on that occasion
Did he make any reference to any changes that would be made in the department as a
result of his being there as service manager?
A. No, sir, he didn't.
Q. There was no conversation along that line?
A. That is as far as he went. He told us what he had been called upon to do. That was
the extent of it.
In explanation of his interpretation of what Abrahams meant by the "mess," Ardon further
testified that "well, we had been having trouble with getting the Union to come in. We had
been having a lot of trouble with the company. Everybody was all upset about it. That is what
he was referring to, by clearing up that mess."
On cross-examination Ardon admitted in substance that there had been a lot of confusion
and dissatisfaction not only among the employees but top management as well before Abrahams
took over the management of the service department One of the causes of the trouble was
mismanagement of the department by the previous manager An excerpt from Ardon's testi-
mony on cross-examination in this regard is, in the considered opinion of the undersigned,
of sufficient importance to be inserted herein. Consequently it follows below
Q. Before Mr Abrahams was service manager, hadn't there been considerable
trouble in the operation of the department9
A. Yes, sir
Q. That had nothing to do with the union, did it?
ED TAUSSIG, INC. 47 9
A. No, it didn't have anything with that.
Q. In other words, there was a lot of complications in the operation of the service
department with which the previous manager had to do. Isn't that correct?
A. Yes, sir, I suppose you could put it that way.
Q. So, actually, when you talked about the mess up there, that was what Mr. Abrahams
was referring to?
A. Yes, sir.
Q He didn't say anything at all at that meeting about union or nonunion , did he?
A. I don't recall if he did or not
Q. You just a few moments ago made a pointblank statement that he did say something
about the union, didn't you?
A. I don't think he said anything about the union. He just said, " a mess."
Q You know that when he spoke of "the mess," he meant the mess that Mr. Landry
left up there in the operation of the department, don't you.
A No, I don't think he was referring to that part of it
Q You know there was a mess by virtue of the previous manager?
A. I would like for you to repeat that.
Q. I think you have already answered the question. You said you did know there was
a mess up there by virtue of the management of Mt. Landry, didn't you?
A Yes, sir.
Q. So, when he referred to "a mess, " you didn't know what mess he was referring
to, did you9
A Well, he must have been referring to both of them, sir.
Q How do you know that? He didn't say anything about union or non-union, you say?
A. No, he didn't
Q. You are just drawing your own conclusion, aren't you? Isn't that right?
A. I guess so.
Q. So, if Mr Abrahams referred to this conversation he had with you all when he
first took over in January of 1953, he was talking about more efficient operation of
the service department, wasn't he? Isn't that what he said he wanted to do?
A. Yes, I seem to recall that.
Q. You want to be fair about this thing, don't you, Mr. Ardoin?
A. I sure do.
Ardoin further testified that it was his opinion that by "the mess" he felt that Abrahams
had reference to the Union
Abrahams admitted that he had a conversation with Ardoin and other employees as well
shortly after Christmas 1952. This version of the affair was as follows:
Q. . Mr Abrahams, to clarify the record, Mr. Ardom testified that on January 2nd
or 3rd of 1953 that you had a conversation with him and thanked him for the Christmas
present and told him another election was coming up pretty soon, and in substance that
you wanted him to stay with you, and you promised him that he would get the things you
stated he would have at the meeting that you had right after you took over as service
manager, or words to that effect. Did you have such a conversation with Mr. Adroin9
A. I had a conversation with him, but not in words to those effects.
Q. What was the conversation you had with him at that time?
A. I was upstairs and thanking the boys for their Christmas present. They gave me
a Christmas present and I appreciated it and I went around and thanked each one of
them individually for it. At that time he brought up the subject about a raise. I told
him, I said, "Well, Ralph, my hands are tied at this time. I am not in a position to
give you a raise or do anything. There is an election on and if I give you a raise it
may look like I am trying to influence you one way or another." I said, "I cannot do
anything right now." I said, "When this is all over with, we will do the right thing
with you regardless of which way the election goes." That is as nearly as I can re-
member what the conversation was
Q. Did you ever tell anyone--Mr. Reporter, strike that that is all
Though cross-examined most vigorously Abrahams' testimony as regards the above
conversation was not shaken in any material respect.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusion
In the final analysis there is little variance in the testimony of Ardoin and Abrahams as
regards what transpired and was said by Abrahams when he talked to the employees early
in January 1953. Moreover, there is little conflict in the record over the fact that throughout
the period that the question concerning representation was pending there was considerable
conversation among the employees and Abrahams as regards the Union The undenied and
uncontradicted testimony of Abrahams shows that employees on occasion came to him and
asked for his opinion as regards the Union and in particular as regards the tenure of their
employment if the Union was successful in the elections that were to follow. Nowhere in the
record is there any substantial evidence that Abrahams made disparaging remarks con-
cerning the Union, or that he at any time made promises of benefits to the employees either
individually or in a group to the effect that if they abandoned their organizational efforts on
behalf of the Union they would be rewarded by wage increases, more favorable working
conditions, or other benefits by the Respondent. The same is true as regards threats of
reprisal if they refused to abandon their efforts on behalf of the Union Moreover, the record
is barren of any substantial evidence that other members of the Respondent's man-
agerial staff engaged in such conduct during this period or at any other time. On
the other hand, there is substantial evidence in the record to the effect that at the time
Abrahams took over the management of the service department there was dissatisfaction
and unrest in the department as a result of past mismanagement. It is in the light of this
background that the General Counsel urges that a finding be made to the effect that Abrahams'
statement to the effect that working conditions for the employees would be improved as soon
as this "mess" is cleaned up, was a promise of benefits to the employees if they abandoned
the rights guaranteed them in Section 7 of the Act and repudiated the Union. After careful
reflection the undersigned must reject this contention of the General Counsel. His reasoning
in this regard is premised on several factors. To begin with Ardoin himself conceded that
the reference to the "mess" was subject to two interpretations. (1) That it referred to the
Union organization campaign among the employees, and (2) that it also concerned the mana-
gerial problem that admittedly had been and still was at the time Abrahams made the remarks
concerning the "mess" a cause of serious concern to employees and management alike.
Again, and most persuasive to the undersigned, is the obvious and undisputed fact that if
Abrahams' remark had the effect that the General Counsel now insists it did have on the em-
ployees under his supervision, then "why in the world" did not the Union herein bring the
matter to the attention of the Regional Director either before the first election was held in
June 1952, since the remarks were made in March 1952, or certainly before the runoff elec-
tion in January 1953? Surely the Union had knowledge of Abrahams' alleged remarks since
tPey were made to all of the employees in the service department, the very group which the
Union contended in its petition constituted the unit claimed appropriate, and in which it
claimed to represent a substantial number thereof. It is inconceivable that some of the
Union adherents in the group would not have been sufficiently impressed with Abrahams'
remarks (if they were of such a serious nature as the General Counsel now contends, approx-
imately 1 year and 5 months after they were made ) and reported their portent to responsible
officials of the petitioning union. Hence it follows that since the Board itself has inferred
and found time and again that similar remarks in settings such as found herein are, when
considered in the light of all the surrounding circumstances, calculated to have created such
an atmosphere of uncertainty and fear among the employees that it tends to restrain them in
the exercise of the rights guaranteed them in Section 7 of the Act, then by the same process
of reasoning it is likewise reasonable to infer from the facts found herein that they did not
have such an effect at all. The undersigned, using the same criterion, here finds that
Abrahams' remarks to either Ardoin or the employees as a group were of such a nature that
in all the circumstances they could not have had and did not have a coercive or restraining
effect on the employees , and consequently were, in their setting of a privileged nature,
innocuous and meaningless in law Consequently he finds that they were not violative of the
Act, and will recommend hereinafter that this allegation in the complaint be likewise dis-
missed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, Ed Taussig, Inc., set forth in section III,above, occurring
in connection with the operations of the said Respondent in section I, above , have a close,
ED TAUSSIG, INC. 48 1
intimate, and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent, Ed Taussig, Inc., engaged in certain unfair labor practices,
the Trial Examiner will recommend that it cease and desist therefrom and take affirmative
action to effectuate the policies of the Act.
It has been found that the said Respondent has interfered with, sponsored, and dominated
the formation and administration of the Committee and has assisted and contributed support
thereto. The effect and consequences of the Respondent's interference with, domination,
and support of the Committee, as well as its continued recognition of it as the bargaining
representative of its employees, constitute a continuing obstacle to the free exercise by its
employees of their right to self-organization and to bargain collectively through repre-
sentatives of their own choosing Because of the Respondent's illegal conduct with regard to
the Committee, the Committee is incapable of serving the Respondent's employees as a
genuine collective-bargaining agency. Accordingly, the Trial Examiner will recommend
that the Respondent withdraw all recognition from the Committee as the representative of
any of its employees for the purpose of dealing with it concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of employment, and completely
disestablish the Committee as such representative.
Since it appears that the Respondent's illegal conduct of interference, restraint, and
coercion stems from its conduct in dominating, interfering with, and supporting the formation
and administration of the Committee, it will be recommended only that the Respondent cease
and desist from engaging in like or related conduct of interference with the representation
of its employees through a labor organization of their own choosing.6
Upon the basis of the foregoing fuidings of fact and upon the entire record in the case,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Association of Machinists, AFL, and Employee-Management Committee,
Ed Taussig, Inc., are labor organizations within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and administration of Employee-
Management Committee, Ed Taussig, Inc., the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (2) 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 said 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 affect commerce within the meaning of Section 2
(6) and (7) of the Act.
[Recommendations omitted from publication ]
6Braswell Motor Freight Lines , 101 NLRB 1151.
APPENDIX A
EMPLOYEE - MANAGEMENT COMMITTEE
ED TAUSSIG, INC.
INTRODUCTION' In order to foster better relationship between the Employees and Manage-
ment of Ed Taussig, Inc ., it has been recommended by the Department Heads of this firm
that an Employee - Management Committee be set up, and function with the purpose in mind
to have better working conditions as well as better working relationship among all the em-
ployees of our firm, and create and foster a better type of understanding among all of us.
It was the recommendation of the Department Heads that the following Departments have
one (1 ) person, other than a Department Head or Supervisor , elected by his fellow employees
339676 0 - 55 - 32
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in his Department; and, that person represent his Department for a period of four (4) or
eight (8) months, as should be the wishes of the Committee.
COMMITTEE MEMBERS: It was the desire of the group to have each and every Department
represented , and thus it was agreed upon to have the following categories assigned:
1. Service Department 1 Member
2. Parts Department 1 Member
3. Service Station 1 Member
4. Sales Department
(both New and Used) 1 Member
5. Office 1 Member
(all clerical help)
ELECTION: An election will be held on January 28, 1953 , according to the following schedule;
and each department will elect one (1 ) person for their representative to the Committee.
However , the people receiving the three (3) highest number of votes in the secret ballot will
serve in the capacity as Committee Members for the coming year . The ballots will be cast
in the various departments as follows:
1. Service Department 8:00 to 9:30 AM
2. Parts Department 9:30 to 11:00 AM
3. Service Station 11:00 AM TO 12:30 PM
4. Sales Department 1:00 to 2:30 PM
5. Office 2:30 to 4:00 PM
An election will be held subsequently each year thereafter or oftener if necessary to fill
a vacancy in any department . It would be desirable to have each term for a four (4) months
period. However, in order not to have all new members coming into the office at one time,
it would possibly be deemed best at the end of the first term of office to have those five (5)
members serving on the Committee elect two (2) of their group to remain for an additional
four (4) months to serve on the new committee taking office, and the three (3) remaining
members would be replaced by the person receiving the second highest votes in his de-
partment for the next four (4) months. In this manner it will be a rotating committee of
three (3) new members, and two (2) old members on each committee after the first four (4)
months. The two (2) members who are elected for an additional four (4) months term by
the Committee Members would not be eligible for the next election in that department; thus,
the representatives on the Committee would be spread over a larger group of employees.
MEETINGS AND PROCEDURES: The Committee would be responsible to meet with manage-
ment representatives--Messrs. Ed Taussig and Garland Mahaffey--at least once each month,
even though there are no problems to be presented at the meeting.
It would also be desirable for the committee to meet as many times as they wish among
themselves, and should they request a "call" meeting with Management, this also would be
in order at any time.
For an employee to air a grievance, either personal or within his department, the suggested
procedure would be for that employee to contact his Department Head first, if possible,
and then if the grievance is not adjusted within a period of time, discuss the matter with the
representative of the employee - Management Committee in his Department, and he in turn
will take the matter up, separately or jointly, with the Employee Committee. In this manner
each Department Head will thus be informed as to the grievances or misunderstandings in
his Department, and thereby will have a chance to remedy immediately any difficulties
arising.
If the Employee Committee either cannot arrange a satisfactory settlement of the matter,
then they should decide to refer it to the combined Employee - Management Committee.
CONCLUSIONS: This procedure is simply a suggested initial plan and can be altered or
changed as the combined Committee may decide from time to time.
Any suggestions by employees are welcomed and full consideration will be given them at
all times.
The Management
THE GREAT ATLANTIC & PACIFIC TEA COMPANY
APPENDIX B
NOTICE TO ALL EMPLOYEES
483
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE HEREBY disestablish Employee-Management Committee, Ed Taussig, Inc., as
the representative of any of our employees for the purpose of dealing with us concerning
grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions
of employment, and we will not recognize it or any successor thereto for any of the above
purposes.
WE WILL NOT dominate or interfere with the formation or administration of any
labor organization or contribute financial support to it.
WE WILL NOT otherwise interfere with the representation of our employees through
a labor organization of their own choosing.
ED TAUSSIG, 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.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY and
LOCAL 600, AMALGAMATED MEAT CUTTERS AND
BUTCHER WORKMEN OF NORTH AMERICA, AFL. Case
No. 10-CA-1687. April 23, 1954
DECISION AND ORDER
On October 14, 1953, Trial Examiner Horace A. Ruckel
issued his Intermediate Report in the above-entitled proceed-
ing, 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 certa;n affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the In-
termediate 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 exceptions and brief,
and the entire record in the case, and hereby adopts the Trial
Examiner's- findings, conclusions, and recommendations. 1
'In his Intermediate Report, the Trial Examiner incorrectly found that Walker had signed
her Union applicationcard during the first part of January 1953. The report is hereby corrected
to show that Walker signed her card on December 26, 1952.
108 NLRB No. 84.